Legal Scholar Mautner's Critique of Israel's Judicial System and Liberal Hegemony

Professor Menachem Mautner, a prominent Israeli legal thinker, has authored a new book, "How Did We Get Here: Thoughts on the State of Liberal Democracy in Israel," which critically examines the evolution of the Israeli Supreme Court and the concept of liberal hegemony. Mautner argues that in the 1980s, following the Likud's rise to power, the liberal elite, defeated politically, shifted their focus to the judiciary to advance their values. He contends that the Supreme Court, then dominated by judges from a similar Ashkenazi, affluent, and educated background, became a tool for this elite, abandoning a formalistic approach to law for one based on values. This shift, Mautner believes, damaged Israeli democracy and eroded public trust in the legal system.

Mautner's analysis, first presented in his influential 1993 book "The Decline of Formalism and the Rise of Values in Israeli Law," has been co-opted by proponents of the current judicial overhaul, who twist his arguments to justify their agenda. While Mautner's critique stems from concern for democracy and the judiciary's standing, supporters of the overhaul, including Prime Minister Benjamin Netanyahu and Justice Minister Yariv Levin, use his theories to establish an authoritarian regime. Mautner himself had previously criticized the Supreme Court for nepotism and the "friend brings friend" appointment system, as well as the exclusion of Mizrahi candidates, a practice defended by former Supreme Court President Aharon Barak.

The article also delves into Mautner's critique of the "former hegemons" for their de-politicization, arguing their politics became one of legal petitions rather than direct engagement with citizens, particularly those in peripheral areas. He suggests this detachment contributed to the alienation of lower and middle-income Israelis from the anti-Netanyahu camp. Mautner further discusses the controversial "constitutional revolution," initiated by Barak, where the Supreme Court declared two Basic Laws as part of a constitution. Mautner views this as an overreach of judicial power, violating the separation of powers and fueling public alienation.

Mautner also addresses the fraught issue of Ashkenazi-Mizrahi relations, a topic often avoided in Israeli public discourse. He outlines the historical geographic separation, social separatism, and cultural suppression faced by Mizrahim, noting the persistent socioeconomic gaps. He criticizes theories that overlook the multifaceted identities of Mizrahim, advocating for equitable treatment. The book also explores the rise of populism, linking it to economic changes, globalization, and neoliberal policies that have marginalized lower and middle-income populations, leading to anger directed at elites.