The Dubious Advice of Kohelet

Israel’s constitutional fiasco received its intellectual legitimacy from the policy papers of Kohelet, an Israel-based think-tank. Alas Kohelet’s work has been plagued by abundant and profound failings that underlie the monumental damage to Israel caused by the “legal reform” that it ushered. Unfortunately, Kohelet refuses to acknowledge its shortcomings, assume responsibility for them and call for a halt to the entire legislative process that is promoted by the government. Instead, Kohelet is doubling down on its mistakes by assuming positions in support of or against all sorts of compromises including President Herzog’s.

Research and strategy work by think-tanks is its own discipline, with best practices and etiquette. It is different from academic research, in that it is focused on achieving some near-term social impact in areas that are generally shaped by government policies. The assumption is that think-tanks aim to serve the best interest of the public, and, in this respect, they are different from lobby groups who serve the best interest of their clients. While some in Israel argue that Kohelet is effectively a well-funded lobby group of rightwing ideologues, which is therefore abdicated from the norms of good standing in the world of think-tanks, I hold that Kohelet deserves to be appreciated based on its own claim of being a think-tank and therefore by the qualities of its work as such institution.

In the think-tank world there is a distinction between “policy research,” which can be narrowly focused on one topic; “strategy” that integrates broader considerations in achieving goals of public good; and being a “brain-for-hire,” which happens when an arm of government outsources to the think-tank its entire research, strategy work and, thereby, the process of policy design. Every think-tank aspires to be a “brain-for-hire,” which is the ultimate vote of confidence from politicians. Kohelet was privileged to become a brain-for-hire regarding Israel’s constitutional reform. But such a position comes with its own expectations. It requires the think-tank to place itself in the shoes of decision-makers and explore the full scope of implications of its suggested policies. This standard should have guided Kohelet when it was tapped to replace and bypass Israel’s entire civil service in designing a constitutional revolution.

Alas, based on the materials on the Kohelet website, it seems that Kohelet failed, or worse yet, deliberately refused to acknowledge its status as a brain-for-hire and did not take even the most basic steps to assess the implications and risks of the “legal reform” it was backing. It is worth noting that Kohelet’s own economic department, led by a senior economist, Michael Sarel, did not opine on the potential business and economic implications of the reform, which was recently estimated to “cost” the Israeli economy many billions of NIS.

The longevity of Kohelet’s work on constitutional reforms only highlights additional colossal intellectual failures. First, it seems that Kohelet failed to appreciate a most basic distinction between expertise in constitutional law, which underlies comparisons of justice systems of different countries, on the one hand, and expertise in constitutional reforms, which specialize in how to manage a constitutional change, such as how to form, convene and lead a constitutional body during its deliberations and how to have broad public support via referendum or other means.

Second, Kohelet failed to observe that it was recommending multiple interventions into a complex system, which inevitably creates unintended consequences. While Kohelet boasts multiple experts in constitutional law, it does not highlight a single expert in system thinking, capable of basic analysis of the systemic implications of its work. For example: Kohelet’s suggestion of politicizing the appointment of supreme court justices can affect appointment of judges in all instances. Who would want to bring their local business dispute before a judge that was appointed or will be promoted because of some political deal between Likud and Shas? Are we really surprised that the business community is horrified by these prospects?

While Kohelet boasts multiple experts in constitutional law, it does not highlight a single expert in system thinking, capable of basic analysis of the systemic implications of its work.

Third, Kohelet failed to identify the “relevant other” for its work. It dogmatically invested in comparing Israel’s constitutional system to other countries’ in order to prove that the appointment of justices should be dominated by politicians. Alas, such comparisons are irrelevant because every set of checks and balances is unique, and Israel’s constitutional structure is uniquely unique. For example, what, if anything, can we infer from the U.S.—with its presidential federal system, a constitution, a Congress made up by a Senate and a House with six-year and two-year terms, who are elected in their districts—to Israel, which is a parliamentary system that has a single district without a constitution and with one house of representatives? Meanwhile, Kohelet ignored the lessons of previous attempts to engineer Israel’s constitutional system like in 1988-2001 (Hukah Le’Israel / Constitution for Israel) or in 2003-2005 (Hukah B’Haskama / Constitution in Agreement). The failures in both cases could have provided invaluable lessons to Kohelet.

Astonishingly, as mentioned, Kohelet did not attempt to assess risks. They evidently failed to forecast the damage to the economy or hi-tech sectors, to the cohesion of the armed forces, to Israel’s international standing and diplomatic corps, and much more. And even now they fail to say anything about the price tag of the legal reform that they helped usher. Is shifting the balance of power in judicial appointments from justices to politicians worth 10 or 100 billion? Is it worth the distraction from the challenge of Iran? The disunity in the armed forces?

These questions highlight another basic analytical shortfall by Kohelet on a matter, which is a standard best practice among think-tanks and nonprofits. The world of social impact distinguishes between inputs (e.g. money), activities (e.g. research), outputs (e.g. a policy paper), outcomes (e.g. legislation) and effects, which refer to systemic changes that are caused by the sum of all inputs, activities, outputs and outcomes. Examples for effects include legitimacy, growth and prosperity or security. Of course, effects should have been the goal of Kohelet, but its documents have little-to-nothing to say about the desired effects of the reforms, nor do they outline the chain-reaction that will bring about these effects. For sure, Kohelet sought to enhance the legitimacy of the supreme court, but the “legal reform” will surely compromise it severely.

Early on, Kohelet understood the failings of its own suggestions and came forward with ideas for a “compromise” on its own initial suggestions, such as dropping the override clause. Alas, Kohelet’s fall-back is plagued by the same fundamental problems: absolute inability to anticipate effects. Furthermore, Kohelet’s position forced President Herzog to try to find a “middle ground” between Kohelet, representing the pro-reform position, and the Israel Democracy Institute, seemingly representing the anti-reform position. But Herzog’s suggestions suffer from the same fundamental shortcomings as Kohelet’s proposals: They suggest a massive intervention into Israel’s constitutional system with near-zero ability to anticipate effects.

These evident widespread intellectual failings should have led Kohelet to use whatever clout it has left to call for immediate stoppage of the bad legislation and for convening a proper constitutional assembly, as Israel badly needs

These evident widespread intellectual failings should have led Kohelet to use whatever clout it has left to call for immediate stoppage of the bad legislation and for convening a proper constitutional assembly, as Israel badly needs. This is yet to happen. We are still waiting.

Gidi Grinstein is the Founder and President of the Reut Group, a research, strategy and leadership group.