Everyone’s Talking from a “Position”—Except for Us

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The concepts of a “position” and “conflict of interest” crop up frequently in the discussion of the judicial revolution - that is why the facts are so important

The concepts of a “position” and “conflict of interest” crop up frequently in the discussion of the judicial revolution. Some see the entire initiative as aimed at extricating Netanyahu from his legal woes and expanding the coalition majority’s power over the judiciary, the media, and law-enforcement agencies. On the other side of the fence, many assert that those opposing the revolution are motivated by their desire to maintain the courts as a leftwing bastion. Much of the debate is in fact grounded in the idea that none of the arguments is authentic, and that the only thing that concerns each side is promoting its own interests.

This notion of “position” has trickled down to the attitude towards the experts involved in the discussions about the blessing and the curse of the Levin-Rotman initiative.

For example, dozens of economists and Nobel laureates all over the world, hundreds of Israeli economists, hundreds of jurists in Israel and abroad, hundreds of political scientists, specialists in game theory, and students of public policy—in fact, leaders in almost every relevant field of knowledge—have spoken about the importance of institutional independence for the economy, sound administration, and the defense of human rights. In response, those pushing the initiative are quick to disqualify all of them, on the grounds that they are speaking from a “position” and not on the basis of research; but in the same breath, they cite a handful of experts who back their own position. We might note parenthetically that if we assume, for the purposes of the discussion, that the opponents and the supporters share the same level of expertise, we should ask ourselves whether we would undergo surgery when almost all the relevant experts warn that it is dangerous and unwise, merely because perhaps they are speaking from a “position,” and we found one bold physician who was ready to operate immediately? and if we wouldn't take such risk, why do it when our country is on the surgery bed?

Still, we should pay attention to the fact that at the same time as Levin and Rotman are accusing all the experts who warn against the reform of acting from a position, they are spearheading a program whose full significance lies in the fact that officials who have always been walled off from the political arena, will from now on be appointed and promoted by politicians. That is, those who believe that it’s all about a “position,” in fact want to take judges and legal advisors and make their careers depend on political actors.

This contradiction can be explained by several concepts from behavioral ethics. Studies in this field on the influence of personal interests on thought and behavior, have found that personal interests do have a strong effect on people’s behavior (leftists and rightists alike). The research reveals that we generally find it difficult to identify the impact of their self-interest on their decisions. On the other hand, we excel at attributing the influence of personal interests to the decisions and positions of others, especially when they threaten our own belief systems.

In this sense, behavioral ethics is even more suspicious than other disciplines with regard to the explicit and implicit influence that self-interest exerts on people’s decision-making processes, whatever their political views.

For example, the present author is affiliated with the legal academic world, most of whose members are dead-set against the revolution (even at the most conservative Israeli institution, Bar-Ilan), and is also a senior fellow at the Israel Democracy Institute. Do these affiliations influence me? Of course they do. All of us, including judges, are given to partiality and predispositions. But the solution that has been found in many legal contexts is the creation of independent institutions that are insulated, as far as is possible, from self-interests and that oversee the decisions of those who are more vulnerable to the impact of their self-interest.

The solution to the strong influence of one’s “position” is not an increase in the number of posts filled by political appointment or political control of the judicial branch. It is precisely the opposite: transparency with regard to decision-making, more institutions that are independent and professional and have the ability to arrive at decisions that are as detached as possible from the decision-makers’ individual interests.

Without delving into the question of whether judges are on a higher ethical plane than politicians, the judiciary is structured in a way that seeks to minimize the effect of judges’ self-interest: They hold lifetime appointments, so they do not owe their selection to anyone in particular, are well paid, eschew partisan political engagements or dishonorable activities, and so on. Politicians, who must be elected, sometimes thanks to a homogeneous core of supporters, need funds and favorable public relations in order to win elections and then serve for relatively short periods (which have been getting even shorter, because of the instability of the Israeli political system). Without alleging any stain on their ethics, all these diminish politicians' ability to set aside personal interests that may influence their conduct. The attempt to augment political influence over the judiciary, legal advisors, and part of the executive branch, while accusing all the experts who condemn the idea, of acting from a “position,” suffers from an internal contradiction. No doubt all of us have a point of view and are swayed by self-interest—far more than we acknowledge; but this is precisely why independent institutions were created. Increasing political control of those institutions is certainly not the way to make them more objective and insulated from self-serving considerations.

Prof. Yuval Feldman is a Senior Fellow at the Israel Democracy Institute and a researcher in the Faculty of Law at Bar-Ilan University.