On the Gap Between Substance and Process in Democracy and Law, in Light of the Regime Change and the Protest Movement of 2023.
A short intro - On Gap Between Substance & Process
Discussion* surrounding the regime change and the protest is not purely legal, because engaging solely with strictly legal dimension is tantamount to agreeing that procedure (process) prevails over content (substance). Focusing exclusively on process renders the protest redundant and grants approval and legitimization for the regime change to proceed into a technical discussion concerned with details rather than essence.
The implication is collapse of the democratic system of governance and, subsequently, of the State of Israel.
The confrontation between procedure and substance - and which of the two constitutes an indicator of the existence of democracy has long stood at the core of political science, and originates in the confusion between legitimacy (constitutionality - procedure and process; legitimate) and legitimization (authorization / endorsement - substance; Legitimization: process of making legal).
Where legitimacy is derived from the letter of the law, any discussion of it is confined to the technical aspect of the process (procedure). Legitimization, by contrast, is derived from the substance of the process and from whether public involvement grants it social and normative authorization. Moreover, without legitimization at the level of the regime - which is the clear and immediate outcome of the judicial overhaul - the state will collapse, losing the unifying ethos that defines it as sovereign over its territory.
Legitimization versus Legitimacy
The confrontation between procedure and substance, and which of them serves as the indicator for democracy, has long been a core issue in political science, stemming from the confusion between legitimacy (constitutionality - procedure and process; legitimate) and legitimization (authorization / endorsement - substance; Legitimization: process of making legal).
Legitimacy is derived from positive law, and any discussion of it addresses the technical aspects of the process (procedure). Legitimization is derived from the substance of the process and from whether it has public and normative endorsement. Furthermore, without legitimization at the level of the regime - this being the clear and immediate result of the judicial overhaul - the state will collapse, losing its unifying ethos as a sovereign entity.
Thus, the legal system must - and can - deal with what is legitimate, but only when operating with public legitimization and on the basis of a democracy that is not restricted to a narrow definition as a mere reflection of process (voting), but to a broader definition of substance (content and endorsement grounded in participation).
Accordingly, the discussion regarding validity of "the reasonableness doctrine" (i.e. "categorical imperative" as in "Rule of Reason", but poplary know as such in Israeli discoure)[0] actually exceeds the technical‑legal debate and indeed cannot rely solely on the legitimacy of a technical democratic process, but must derive from a deep democratic substance of participation, which enables legitimization of value‑based deliberation and rulings by the court.
Hence, in Israel’s existing parliamentary proportional representative democracy, only a legislature grounded in parties possessing substantive legitimacy (constitutional legitimacy of a value‑based process - namely a genuine democratic internal electoral process), as opposed to merely procedural legitimacy (appointment of representatives without internal elections) - that is, mass parties elected through internal democratic processes (primaries) - can grant the judiciary legitimacy to determine what is reasonable (and what is unreasonable).
Ironically, today the right‑wing bloc holds a majority of such mass parties; therefore, "the reasonableness doctrine" actually works in its favor. Conversely, in the center‑left bloc, there is no majority of mass parties, and thus it cannot grant legitimization (as opposed to mere legal legitimacy) to the Court to engage with "the reasonableness doctrine". Moreover, the protest movement and the center‑left bloc exclude entire sectors from the process (Arab citizens of Israel and other minorities, peace discourse, etc.), and therefore fail to meet the required threshold of substantive legitimization.
Levels of Legitimization
In political science, it is customary to characterize three levels of legitimization (authorization), in descending order of importance:
- State (sovereignty over territory)
- Regime (system of governance)
- Government (administration and policy)
Academic works such as those of Max Weber [1], Yossi Shain and Juan Linz [2], and Walker Connor [3], which address the state and the process of its formation, typically deal with several levels of governmental legitimization (with emphasis on democratic states): state, regime, government, and policy. "We usually deal with several levels of governmental legitimacy (with an emphasis on countries with a democratic character): state, regime, government, and policy. The lack of legitimacy (delegitimization) at one level does not entail such at a lower level. On the other hand, it is reasonable to assume that the lack of legitimacy (delegitimization) at the state level also rules out, in advance, the type of regime, government, and policy. Therefore, every regime and every country must maintain legitimacy at as basic a level as possible" [4].
The absence of authorization (de‑legitimization) at one level does not necessarily entail its absence at a lower level. Conversely, it is reasonable to assume that the absence of authorization at the state level invalidates, a priori, the regime, the government, and policy.
Therefore, every regime and every state must sustain legitimization at the most basic level possible. The existence of legitimization at this most fundamental level prevents situations in which:
"Any dispute that arouses, among a broad sector of the population, the feeling that its way of life or supreme values are under grave threat from another sector of the population, creates a crisis within a competitive political system" [5].
Such a crisis necessarily signals instability, which in a pluralistic and heterogeneous society can - and indeed is likely to - lead to harm of the democratic process, by virtue of the potential expression of violence, civil disorder, and the government’s possible response.
All of these features characterize Israel’s present reality in 2023 and signify the collapse of the consociational democracy upon which its establishment and existence were based.
Collapse of Consociational Democracy in Israel
David Ben‑Gurion, founding father of the State of Israel, established a system of consociational democracy (dreived from "consesion") that distributed power and enabled access to state resources for the various sectors of Israeli society (in practice, for most sectors, though not all). Thus, legitimacy for the regime was granted by all citizens through the proportional parliamentary electoral system, as manifested in the Knesset and subsequently in a representative government.
This model, articulated by political scientist Arend Lijphart in the late 1970s, was presented as a suitable solution for heterogeneous societies - as opposed to homogeneous ones - characterized by deep, enduring social and political cleavages that are not readily bridgeable. Lijphart identified the application of this model in countries such as (at the time) Lebanon, Switzerland, the Netherlands, Belgium, and others [5a].
In Israel, political scientist Asher Cohen coined the term "arrangement democracy"[5b] to describe the essence of the phenomenon - politics of conflict regulation.
The consensual approach also took into account the "Tragedy of the Commons", which describes a scenario in which individuals compete to maximize exploitation of a shared resource, thereby damaging its quantity, quality, and availability for others. The dilemma was first presented by Garrett Hardin in a 1968 lecture [6], laying the foundation for addressing the central challenge of democracy - fair distribution of resources.
As posed in the literature:
"How does one prevent an individual’s rational decision‑making process, aimed at maximizing personal gain, from damaging the shared resource and thereby, in the long term, harming both the collective interest and the individual’s own interest (due to erosion of the resource on which they also depend)?" [7]
The Tragedy of the Commons emerges from economic models of decision‑making such as the zero‑sum game, in which there is only a winner and a loser, as opposed to the Prisoner’s Dilemma, where decisions are based on minimizing losses and locating a point of balance between gains and losses for all players [8].
Already in the 1940s - well before the theorists cited above - Ben‑Gurion understood that in a society marked by religious, national, ethnic, geographic, class, and educational cleavages, a zero‑sum political system was impossible. Hence, governance had to follow rules of accommodation and consensus regarding a "fair" division of the governing pie.
Over the years, particularly since 1977 (when "Likud", took power for the fitst time) and throughout prolonged right‑wing rule - which by its nature introduced a worldview that regarded consensus and state intervention in resource distribution as illegitimate - these arrangements eroded. In recent years, Israel no longer functions as a consociational democracy, culminating in the 2023 regime change.
Substance versus Process
Democratic theory in Western culture has undergone many transformations - from Athenian direct democracy, through the nation‑state, to modern liberal regimes. Over time, scholars have proposed various rules and frameworks for defining democracy.
By the late twentieth and early twenty‑first centuries, approaches to democracy can be divided into two main trends, though not entirely separate: one that prioritizes substance over process, and another that argues process precedes substance (Substance and Process, respectively).
In practice, these two approaches - espite often opposing one another - complement each other. The arguments advanced by each side jointly form a broad and solid front that underpins modern Western democracy. The dialectical interdependence between them creates a democratic continuum, with process at one end and full substance at the other [9].
A prominent representative of the substance‑first approach is Robert A. Dahl. In his "Regimes and Oppositions" [10], democracy is defined "... as the combination of at least two dimensions: public contestation and the right to participate in governance" [11].
That is, democracy is not one‑dimensional and does not relate solely to the individual’s right to vote, but also to the right and ability to contest within the process. These rights are grounded in substantive democratic guarantees such as freedom of expression, association, and property.
Conversely, Samuel Huntington represents those who argue that process comes first. Huntington asserts that "the definition of democracy in terms of elections is a minimal definition" [12] - and sufficient. Yet even Huntington clarifies that civil and political rights - freedom of speech, publication, debate, assembly, and organization - are necessary for political debate and elections themselves [13].
Thus, a dialectical dependence exists: procedural democracy requires substantive democracy, and substantive democracy requires process. Most scholars have come to understand that these two poles are inseparable components of democracy, and that its existence depends on both.
Still, this discussion leads to the recognition that the existence of a democratic process alone does not guarantee full democratic substance, just as strict adherence to substance does not guarantee the process - and thereby also undermines substance.
Political Parties and Governance
As a governing party, the historical "Israeli Labuor" Party institutionalized consociational democracy internally, allowing access to power and resources for groups that would otherwise have been excluded. This was its strength, and what distinguished it from other aspiring governing parties in the center‑left bloc.
On the right, "the Likud" has historically preserved this model of internal democracy - despite its shortcomings and irrespective of ideological disagreement with its worldview.
Over time, as internal democratic mechanisms eroded - eventually becoming largely defunct - the Labuor Party lost its capacity to incorporate diverse sectors of the population and thus lost their legitimacy, and consequently its leadership of the bloc.
A party that once aspired to governance in the eyes of its own voters ceased to lead them, transferring leadership to parties lacking similar inclusion capacity - "Yesh Atid" and "New Hope". Ironically, these parties embody in practice the very logic of the 2023 judicial overhaul.
Until the bloc succeeds in placing at its center a genuinely democratic party, grounded in broad accommodation and consensus as the basis for the governance it seeks, neither the bloc nor the state will find a remedy.
In the image accompanying this article, devoted protest activists are seen attempting to exclude demonstrators carrying the sign "There is no democracy with occupation", thereby effectively violating the democratic contract of accommodation and consensus, and stripping the protest of the legitimization it so urgently requires.
* Author is a political scientist holding B.A. and M.A. (thesis on democracy) in Political Science from Tel Aviv University; article was orginaly published on “Political Scientists for Israeli Democracy” (See here https://www.psfidemocracy.org/post/on-the-gap-between-substance-and-process-in-democracy-and-law).
Footnotes and sources
[0] "Concept of reasonableness", Wikipedia, https://en.wikipedia.org/wiki/Reasonablenesshttps://en.wikipedia.org/wiki/Reasonableness.
[1] Max Weber, Politics as a Vocation - What is a State, in From Max Weber: Essays in Sociology, edited by H.H.Gerth & C.Wright Mills, 1946, Oxford University Press / Max Weber, Domination and Legitimacy, in Frank Parkin, 1982
[2] Yossi Shain & Juan J. Linz, Between States: Interim Governments and Democratic Transitions, Cambridge University Press, 1995. pp. 6-21
[3] Walker Connor, A Nation is a Nation, is a State, is an Ethnic Group, Ethnic & Radical Studies 1 (October 1978):377-400.
[4] Assaf Halachmi, Democracy, Community, State, Deot, 2007, www.deot.co.il/politics-economics-society/83-democracy-community-state.html.
[5] Shain & Linz, p. 70.
[5a] A. Lijphart, The Politics of Acommodation, Berkley 1968; idem, "Consociational Democracy", World Politics, 21, 2 (1969).
[5b] Asher Cohen, "Religion and State - Secular, Religious and Ultra-Orthodox", Yad Ben-Tzvi 1997.
[6] Garrett Hardin, The Tragedy of the Commons, http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html, 1968.
[7] Assaf Halachmi, The Tragedy of the Commons, Deot, 2007, www.deot.co.il/politics-economics-society/33-tragedy-of-the-commons.html.
[8] Assaf Halachmi, Primaries: Why They Are the Most Democratic, Deot, 2008, www.deot.co.il/politics-economics-society/122-primaries-it-is-most-democratic.html.
[9] Halachmi, op. cit.
[10] Robert A. Dahl, Regimes and Oppositions, Yale University Press, 1977.
[11] Ibid., p. 6
[12] Samuel Huntington, The Third Wave, Oklahoma University Press, 1991, p.9 (www.ned.org/docs/Samuel-P-Huntington-Democracy-Third-Wave.pdf)
[13] Ibid., p. 8.
