Contracting Around Democratic Backsliding:Netanyahu and the Ministry of Justice

Nadiv Mordechay1 and Eden Lapid

Abstract

This article reveals an additional pathway for democratic backsliding – through negotiated

legal arrangements that subtly erode political norms. Using Israel as a case study, it

analyses a series of legal understandings reached between the Attorney General’s Office

and the Netanyahu governments during the period 2020 to 2026. The article develops the

concept of ‘contracting around democratic backsliding’, focusing on situations in which

legal gatekeepers avoid direct constitutional confrontation with populist executives

and instead seek to contain democratic risks through consensual legal arrangements

negotiated ‘in the shadow of the law’.

The article examines three case studies of contracting around democratic backsliding:

(i) the conflict-of-interest arrangement imposed on Prime Minister Benjamin

Netanyahu while standing criminal trial; (ii) the Memorandum of Understanding reached

with Minister of National Security Itamar Ben-Gvir following allegations of politicising

the police; and (iii) the agreement permitting Netanyahu’s appointment of

the head of the Israeli Security Agency despite conflict-of-interest concerns arising

from ongoing investigations involving his office. In each case, the Attorney General

refrained from advancing a categorical constitutional objection and instead validated the

appointment or tenure through contractual limitations designed to constrain executive

power.

The article argues that this ‘consensual approach’ has ultimately intensified democratic

backsliding. By avoiding constitutional showdowns, the arrangements weakened

the likelihood that courts would articulate clear constitutional boundaries, normalise

previously unacceptable political conduct, and legitimise increasingly extreme exercises

of executive power. The analysis further demonstrates that repeated reliance on negotiated

accommodation gradually transformed exceptional deviations from democratic

norms into an accepted constitutional practice, while simultaneously limiting the ability

of legal institutions to reverse the process once the agreements themselves collapsed.

In the Israeli context, such negotiated arrangements inadvertently strengthen populist

entrenchment, contributing to the erosion of democratic guardrails.