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"Democracy" and "dictatorship"

By Jack M. Balkin

There can be little doubt that Israel counts as a "democracy," certainly with regard to the majority Jewish population and even with regard to Israel's Arab citizens, who participate in elections and are able to elect some ethnic Arab represenatives. Certainly no other country in "the region" comes so close to meeting the standards of democratic rule. (I don't argue that free elections constitute a full description of "democracy," but they are certainly a necessary condition.) And, of course, Israel will be holding elections in February to select a new Knesset and, therefore, Prime Minister. I have expressed some preference for parliamentary systems over our own presidential system precisely because the former, on balance, offer more accountabilty.

That being said, it is also necessary to note that the debatable scope of the present war in Gaza, even if one accepts the view, as I do, that it was precipitated by the failure of Hamas to continue the truce and their decision to lob rockets into Israeli territory, has been decided upon by an Israeli government that is just as lame-duck as our own. Moreover, it is hard to escape the view that the most relevant decisionmakers are motivated by their deep (and altogether justifiable) desire to forestall the return to power of Benjamin Netenyahu and, therefore, determined to prove to his potential supporters that they are as willing to use military force, regardless of consequences to the Palestinians, as he presumably would be. It is hard for me otherwise to understand the decisions that Israeli leaders have made, given the foreseeable failure to eliminate Hamas as a political force in Gaza.

This may simply underscore the point that all political systems, including those we justifiably label as "democratic," contain within them aspects of "dictatorship" as well, in which decisions of life and death are made without prior approval by the demos. At least the Israeli leaders will indeed be submitting themselves to the judgment of their electorate, which is more than can be said for George W. Bush or Dick Cheney, who for 15 more days will be able to exercise whatever legal powers they possess secure in the knowledge that they will be not be accountable either to the electorate or, it appears, even the application of relevant federal statutes.

Far from continuing my standard critique of our Constitution, I confess that I see no magic solution to the problem of de-facto "dictatorial" aspects of modern government. Post-facto accountability is better than no accountability, etc., but we should always be aware of the awesome power we put in the hands of our political leaders based on little more than trust and confidence that they will use it wisely. The "rule of law" really is reduced, in important ways, to "the rule of a relatively small group of men and women" when situations are perceived as crises.

UPDATE: I note that the NYTimes has just posted a story, which will presumably be published in Monday's paper, titled "For Israel, Chance to Strike before an Ally Departs." Thus, according to the story, "Many Middle East experts say Israel timed its move against Hamas, which began with airstrikes on Dec. 27, 24 days before Mr. Bush leaves office, with the expectation of such backing in Washington. Israeli officials could not be certain that President-elect Barack Obama, despite past statements of sympathy for Israel?s right of self-defense, would match the Bush administration?s unconditional endorsement." If this is correct, and there is certainly no good reason to doubt it, then the responsiblity for the devastation in Gaza can be placed on our Constitution and the stupid hiatus between election and inauguration. Mr. Bush is neither gone nor forgotten, and lives are being lost as a result.

Full post as published by Balkinization on January 04, 2009 (boomark / email).