Revisiting Israel's Militant Democracy Perception

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In the judicial year 2014–2015, the Israeli Supreme Court issued several landmark rulingsspecifically in the Dirani, Zoabi, and Avneri (Boycott Law) cases—that present an intriguing portrait of Israel’s contemporary approach to the doctrine of defensive democracy. When discussing defensive democracy, a narrative emerges that a democracy is not obligated—and, indeed, must not—permit those seeking its destruction to exploit democratic tools to achieve that end.

While this principle has been embraced and legitimized by modern democratic states, many of them acknowledge the inherent “democratic paradox” it entails: In the name of defending democracy, these states employ undemocratic measures. Thus, the tools of defensive democracy are intended to be applied only when there is a concrete threat to the most essential and fundamental values of democracy. This principle underlies Israeli jurisprudence, particularly in cases concerning the disqualification of political parties and the concept of “unconstitutional constitutional amendments,” which, I argue, are mirror images of one another.

Interestingly, the Supreme Court's rulings in 2014–2015 reveal that the justices rely on two principal justifications to establish and expand the notion of defensive democracy. The first is the creation of reciprocity—almost symmetry—between the individual and the state. The second is the heavy reliance on comparative law as a source of legitimacy for employing defensive measures.

I argue that precisely because the tools of defensive democracy invoke the question of the democratic paradox, they must be reserved as preventive measures of last resort. This does not imply that the state is necessarily obligated to fund activities aimed at its own destruction, nor does it absolve individuals of their duties toward the state. However, we must avoid creating rhetoric that grounds defensive democracy in reciprocal relations between the individual and the state, thus justifying a “tit-for-tat” approach by the state against the individual.

Moreover, we should be cautious about uncritically importing comparative law under the assumption that “if it happens abroad, it is permissible here as well.”

Suggested citation:

Revisiting Israel’s Militant Democracy Perception, 10 Din U’Devarim (Haifa L. Rev.) 345, 345-379 (2017) [Hebrew].