Contracting Around Democratic Backsliding: Netanyahu and the Ministry of Justice

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.