Legalizing politics and politicizing the law
One of the modern era’s most dangerous problems is the conflation of politics with law. Political questions are increasingly treated as legal ones, which inevitably results in the law becoming politicized. Last week provided two salient examples.
Evelyn Gordon JNS
One was the response to the U.S. State Department’s announcement that Israeli settlements don’t violate international law. What was striking was that many opponents didn’t actually challenge the department’s (correct) legal conclusions. Instead, they objected on policy grounds.
Democratic presidential candidate and former vice president Joe Biden, for instance, complained, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.” Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement “a significant step backward in our efforts to achieve a two-state solution.”
Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it “will be widely read as a broader change to the U.S. position on Israeli settlements,” which “would place serious and critical obstacles to a viable two-state solution.” Consequently, he urged the administration “to reverse its position.”
Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they’re incapable of distinguishing policy from law.
Without an accepted arbiter, whether or not something violates international law is endlessly debatable.
People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it’s legal. Indeed, that’s precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren’t illegal.
Yet the concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.
The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn’t be built, even if they’re actually good policy.
Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, U.N. agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.
But the bigger problem is this tactic’s enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.
Thus Americans who object to recognizing the settlements’ legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.
Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy’s survival depends—that legal decisions must be honored—will rapidly erode.
As I’ve noted before, this is already happening in Israel. But last week’s indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.
I’m the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he’s simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.
The Israeli legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.
The first is that the Attorney General’s Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.
Second, Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.
Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.
The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.
Leftists spend a lot of time these days fretting about democracy’s possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies—plain old-fashioned brute force.
