Jewish and Democratic? A Rejoinder to the "Ethnic Democracy" Debate

Ruth Gavison 1999 4(1) Israel Studies. 44-72
Jewish and Democratic? A Rejoinder to the "Ethnic Democracy" Debate

Growing awareness of tensions between Jewish and democratic elements in Israel's regime abounds in the scholarship of Israeli society of the last two decades. This may be surprising, since the tensions were not created recently. They have accompanied the Zionist movement and its idea of a Jewish state from the very beginning. In fact, all agree that Israel is in many ways more democratic today than it was when it was founded.

Nonetheless, the debate about the possible and actual relationships between the Jewish and the democratic strands in the identity of Israel is becoming more intense. In part this is the result of the inclusion of the description of Israel as a Jewish and Democratic state in the 1992 Basic Laws, and the ideological, legal and judicial debate that ensued. 1 But more important is the fact that the complex processes and mechanisms that had helped to manage and obscure these tensions in the first years of Israel's existence have been weakened significantly.

There are at least three different sources, independent but inter-related, of these tensions. One is the fact that Israel, a state defined and structured as the locus of Jewish self-determination, has a 17 percent Palestinian minority within its borders. The second is the inter-Jewish debate about the meaning of the Jewishness of the state, with a fierce competition between religious and secular-cultural-historical conceptions of Jewish identity. The third is the deep political debate in Israel concerning its borders and its nature: while most Jewish Israelis want Israel to remain a Jewish state in some sense, positions on what are, or should constitute, Israel's border move between the 1967 lines and the whole region of Israel/Palestine.

In the years prior to 1967, all these sources of potential tension were [End Page 44] subdued. While Israel's borders were never legislated, Jews struggled to consolidate their control, and to gain international recognition, of the 1949 borders. It was accepted that the Jewish State would not extend to the whole of Eretz-Yisrael.

The inter-Jewish debate was highly visible. Initially, the talk was not about Jewish versus democratic, but about democratic versus theocratic. The mechanisms used to resolve these differences were based on negotiation and agreement, exhibiting clear signs of non-majoritarian democracy, of power-sharing and seeking consensus between representatives of these two major conceptions of Israel. While religion received a place in public life and most religious needs were financed by the public, the orthodox in general accepted that laws in Israel were made by the Knesset, not by priests or rabbis following religious law. The negotiated status quo gave religious courts a monopoly over matters of marriage and divorce.

The Jewish-Arab rift, on the other hand, was initially never seriously acknowledged. The arrangements concerning the Arabs in Israel were adopted by exclusive Jewish decision-making mechanisms. Military government was imposed on most of the Arab population. There was a massive transfer of titles in land to the Jewish state, which ended up owning more than 90 percent of Israel's land. Even the decision to grant the Arabs linguistic autonomy and not to assimilate them into the Jewish culture was made by Jews, and primarily for Jewish interests. While Arab citizens did get the right to vote from the start, the regime was majoritarian in the clearest way.

All these background conditions changed. The 1967 war reopened the debate over Israel's borders, and has extended the time frame of the Jewish-Palestinian struggle for control over territory. 2 The hold of the secular elites on political power has weakened, and orthodox Jews are no longer willing to trade autonomy and public finance for support. The demographics of the Jewish population also meant that the Jewish secular majority is now replaced with a more complex division between a religious minority of about 22 percent, a secular group of equal size, which constitutes most of the economic, scientific and cultural elites of the country, and a large "traditional" population, which does not fully observe, but does not see itself as secular. 3 Finally, the Palestinian citizens of Israel have developed an intellectual and political leadership, and have been empowered by renewed contact with their brethren after 1967. Their political claims have become more vocal and visible: they have started using their political power more effectively, and their status within Israel has improved. The re-opening of the questions of borders, together with the long occupation, has legitimated [End Page 45] the re-opening of the original challenge of the very idea of a Jewish state and its legitimacy. The occupation and Jewish expansionism, as well as the inevitable measures needed to control a population that has become increasingly hostile and rebellious, are now conducted under the supervision of an international community 50 years removed from the Holocaust and the 1948 War, and under a much thicker web of international norms of human rights and justice than those existing before 1948.

Despite the many connections between all the processes noted above, political treatment of the inter-Jewish and the two sources of Jewish-Arab tensions is still very different. Within Israel, and among many Jews outside Israel, the only questions worth debating, and the only issues on which compromise needs to be found, are those relating to inter-Jewish tensions and disagreements and to peace with the Palestinians outside Israel. 4 Even Israeli Jews who are concerned with the discrimination against, and exclusion of, Arab citizens in Israel usually debate the justice of the arrangement as a purely Jewish matter, not combining it with a suggestion about systemic participation of Arabs in the decision-making processes themselves so that the resulting arrangement might be based on active participation of the Arabs citizens of Israel and not on the benevolent or prudential concessions of Jews.

Not surprisingly, these changes are reflected in all cultural forms in Israel, including academic scholarship. Not surprisingly, the effects on scholarship are greatest in those areas devoted to the analysis and evaluation of Israeli society, its nature and its prospects. Yet, up to the present time, scholars have stayed away from direct discussion of the large, systemic normative questions: Is Israel justified? Is it justified for it to continue to be a Jewish state? Mostly, sociologists and political scientists have provided descriptions and analyses of reality. From the tenor of these descriptions one can guess a set of normative presuppositions, but these have rarely been made explicit or defended. Most Jewish scholarship has presupposed the justification of Zionism and of at least some of the measures required to strengthen the Jewish state, while most Arab scholarship had denied both of these. At the same time, a growing number of Jewish scholars, and all Arab scholars, have become very critical of at least some of the arrangements in Israel--in all three main areas of tension--that are usually justified by invoking the Jewishness of the state.

Despite this growing criticism, most students of Israeli society, both within Israel and abroad, Jews of all persuasions as well as Arabs, have been content to discuss tensions created by these arrangements for democracy and to identify weaknesses in Israeli democracy stemming from them. Until [End Page 46] now, the scholarly literature has not included an explicit and systemic academic dispute about the utility and validity of treating Israel as a state belonging to the family of democracies.

No more. In a series of different works, 5 culminating in a joint express invitation by As'ad Ghanem, Nadim Rouhana, and Oren Yiftachel in the previous issue of this Journal, 6 a group of scholars now explicitly invite scholars studying Israeli society to reject its classification as a democracy, and specifically its proposed description by Sammy Smooha as an "ethnic democracy," 7

I find Smooha's data very illuminating and his analysis very persuasive and compelling on many points. I have sympathy with many of the insights and comments made by his critics. For reasons I will explain in part below, if I must take a stand between them, I side with Smooha: Israel is a democracy with serious flaws and internal tensions, which require urgent care and reform if Israel is to thrive. However, my more basic problem is that I find the whole debate misleading and unhelpful, because it presents issues that to me are primarily political and normative as matters of theory and conceptual analysis. I am therefore left unmoved by the joint invitation of Smooha and of his critics that all students of Israeli society take a position in their controversy over classification and labeling. I believe the debate is animated by normative and political rather than theoretical controversies. These are indeed the more important questions. Rather than conduct an illusory conceptual debate, we should concede the primacy of the normative and the political questions.

Since I do not want to fall into what I see as a trap, I shall not structure my comment on the question of classification directly. Rather, I shall reformulate the dispute so as to extract from it what I see as the real controversies underlying the conceptual and theoretical claims, provide a sketch of my answers to them, and invite scholars to see how the conceptual and classificatory debate obscures the very questions that should be at the center of our attention.


Reformulation of the Dispute

On the face of it, Smooha and his critics are giving different answers to the same question: Should Israel be classified as a democracy?

On the face of it, what we need to do is give a definition of democracy and a description of features of Israel, with the answer following from the [End Page 47] application of the definition to the case. Different answers to the question could thus follow from either the adoption of different definitions of democracy, or different descriptions of reality in Israel, or both. Here the puzzle begins: Smooha and his critics agree on most of the facts of Israeli reality, including that it should be defined as an ethnic state (institutionalization of a majority's control of the state). They also seem to agree about the nature of the enterprise: a non-normative, scholarly attempt to make sense of the complex reality of Israeli society, with special reference to relations between Jews and Arabs within it. They agree that ideal-types like democracy (and ethnic states?) are not all-or-nothing concepts, and that not many societies are perfect democracies. In most cases, therefore, it is more fruitful to discuss deviations from the type, rather than ask the question whether a given complex reality is just above or just below the separating line. They further agree on many of the components of democracy, that Israel has become more democratic then it was in the 1950s, and that democracy is not a neutral term: other things being equal, the more democratic a regime is, the better it is. They also agree that democracy includes a deep commitment to civil equality. Smooha even concedes that, at certain points, the line should be crossed: a herrenfolk society, like pre-1994 South Africa, despite having democracy for the ruling class, is not a democracy, because it offends too seriously against the basic principle of universal suffrage. 8

Against so much agreement, on both facts and the nature of the enterprise, the intensity of the debate seems strange. What is at stake? All concede that Israel does have strong procedural elements of democracy: All its citizens have civil and political rights. It has regular and free elections. It has an independent judiciary. It has impressive freedom of speech and association. There is in it a real possibility of change of government, exemplified in 1977, 1992, 1996, and most recently in the December 1998 Knesset vote to dissolve the government and hold early elections in May 1999. Denying Israel the label "democracy" obscures these elements. Furthermore, Israel's democratic elements are important in explaining political developments within it. The distinction Ghanem et al. suggest between democratic features (which Israel has) and democratic structures (which it lacks, and therefore cannot be called a democracy) struck me as novel and not very persuasive.

Once we concede there is serious theoretical loss if we deny that Israel is a democracy, Smooha's suggestion that Israel should be classified as a democracy acquires strong presumptive force. Israel does not offend against democratic principles in the clear way that pre-1994 South Africa did. [End Page 48] Denying it the label requires either the adoption of a thicker conception of democracy, under which it cannot be classified a democracy despite these strong democratic features, drawing attention to features that change the reality classified, or arguing that, in adopting a conceptual scheme, one should take into account not only theoretical but political considerations as well. Smooha's critics do, in more or less explicit forms, all of the above. 9

They do not develop in a systematic way a proposed definition of democracy, or justify why a thicker characterization should be adopted. Since I do not think this definition is indeed a central element here, I will do the same. 10

Much more central is the question of the adequate description of Israeli reality and its moral and political evaluation. Here Smooha's critics are moving between two perspectives. While they argue that, even in pre-1967 Israel, the arrangements are not democratic, they also claim that "Israel proper," which is Smooha's unit of analysis, is non-existent, and that we should look into the reality of the political regime and struggle going on within Israel/Palestine as a whole. They add the fact that most religious parties support the Jewish state over the whole of Israel solution, and the systemic inequality of Arabs both within and outside Israel, leading to their effective disempowerment. They also claim that this situation is not (and should not be) stable. They enrich their conception of democracy by making it require that minorities actually consent to their unequal status, so that it will not be unilaterally imposed on them by the majority. 11 They imply that such consent was never given, should not, and is unlikely to, be given in the special circumstances of Israel. On the basis of these considerations they conclude that the reality in Israel does not meet basic democratic criteria.

Neither party raises explicitly the methodological question of whether, in the choice of conceptions, and especially of the application of conceptions to complex realities by way of classification, the possible political (as distinct from scholarly) effects of the choice should be taken into consideration. This reluctance is understandable, because conceding an affirmative answer involves the scholars both in predictions of the consequences of such choices and in their normative evaluation. I believe the political consequences of most such choices are not easy to predict, and that, in fact, they often may operate in opposing ways. Moreover, these political consequences may be justified in some circumstances and be very dangerous in others. So I believe it is legitimate for scholars to decide that their conceptual choices will not be governed by such considerations. 12

If the context is an extremely charged political struggle, however, this may not be a credible choice. When the terms are regarded by all as honorific [End Page 49] (or pejorative), the simple decision to use them may well seem a political stand. This in fact seems a central element in the critique of Ghanem et al. 13 There are heavy theoretical costs to this attitude: we thereby lose the ability to use terms such as democracy without making a normative judgement. But it may well be that it is impossible to claim conceptual detachment when an acute conflict is taking place. 14 Once we concede the inevitable need to be politically sensitive in the choice of conceptions, however, the discussion cannot be presented as purely conceptual or theoretical. The presuppositions of the judgement about the political consequences and their evaluations must also be explicated. Normative considerations are reasons to adopt (or refrain from using) a concept only if we can identify the consequence of such adoptions, and if they are shown to be desirable (or undesirable). The consequences of calling Israel a democracy, say the critics, are that it obscures its undemocratic elements, and, more importantly, that it may contribute to a tendency to accept present arrangements. This is a reason against using the honorific term only if the legitimation is indeed unjustified. This is clearly presupposed by Smooha's critics, but may be less acceptable to others. This is precisely why it is dangerous to let the choice of conceptions, which we should all use, be dictated or influenced by judgements that are themselves deeply contested.

I see the affirmation of the need to look at these normative questions directly as one of the main contributions of this debate. There are a number of such questions: Can it be justified, in principle, for there to be a Jewish state? In Israel? Are the present arrangements in Israel (the status quo) justifiable? Do those who live under Israeli laws have a moral obligation to obey them?

One does not have to know a lot about Israel to know that the answers to the normative questions and that of stability (and ultimately the answer to the conceptual question) may be affected by the chosen perspective. Both the justification and the stability of a Jewish state are very different within pre-1967 Israel and over the whole of Israel/Palestine. I accept that one should maintain a distinction between pre-1967 Israel and Israel/Palestine, but believe that taking just the one or the other as exclusive points of reference is misleading. Both should be on the theoretical (and the political) agenda. I will therefore answer all the above-mentioned questions for both alternatives.

As noted above, one of the reasons the debate emerged only recently is the delayed result of the integration into scholarship of the aftermath of the 1967 War. Despite the fact that Israel's borders were never defined by statute, the unit people talked about until the 1970s was "Green Line Israel," [End Page 50] with its particular demographic and geo-political features, notably a large Jewish majority within Israel and the absence of Jewish control over the area originally designed for the Palestinian state and the population residing in it. The patterns of Jewish settlement, the institutionalization of Jewish rule over Palestine, and the political rhetoric of many Israeli politicians, of both Likud and Labor, changed that situation. While the 1967 War gave Israel legitimacy, until then denied, to its 1949 borders, it re-opened the possibility of thinking of the whole area of Palestine as one political unit. This possibility attracts both Jews and Arabs, both those who want their group to control the whole territory, and those who are hoping for a neutral or a bi-national state within it. So the one-state people are of very different political persuasions. And many of the two-state people distrust those who advocate one bi-national state, fearing that this is a device to implement a state controlled by the other group. 15

The same different political persuasions also motivate the two-state people: some want two equal and viable states, one for each of the contending nations, as the ideal solution. Some would prefer an equal one-state solution but fear it is impractical, so they opt for two equal nation-states as an interim solution that may well last for many years. Some (mostly Jews) argue for the two states vision, hoping that the present asymmetry of power will perpetuate Jewish control over most of the land and resources, which would--according to their concept of such a solution--contain as few of the Palestinian population as possible. Others (mostly Arab) argue that Israel, even within its 1967 borders, should stop being a Jewish state.

This range of possible normative approaches is made even more confusing when one has to take a stand on immediate and specific political decisions. Tactical considerations, and the obvious fact that one has to decide not only on ultimate goals, but on ways to get there--and these may be very controversial--may create strange alliances and unexpected enmities. Consequently, some who would agree to the two equal states vision oppose Oslo because they think it is likely to lead to perpetual and legitimated Jewish domination. They are joined by the rejectionists of Oslo from both national groups, who seek one unit controlled by their own groups. Supporters of equal rights for both people are thus in the company of those who deny the legitimacy of any claim by the other group.

Similar issues exist in the inter-Jewish rift: Some, mostly secular liberals, see strong separation of state and religion as the ideal solution. 16 Some orthodox Jews (I am not at all sure that most of them) do want a full religious state. Others believe that some middle-way accommodation is the ideal solution. But many of the first two groups understand that their [End Page 51] preferred solution is not realistic. They seem to converge and create a solid majority for the accommodation view. However, the middle way is seen by most as an instrumental necessity, to be overruled whenever the political situation allows a better deal. Such attitudes undermine the trust needed to support a stable framework for accommodation, so the immanent tension between the extreme positions cannot be managed.

The political alternatives thus have to be discussed against a very fluid political present and a very uncertain political future. Justifying them requires so much speculation and leaps of faith that it cannot be a work of pure scholarship. While individuals may well look for scholars to provide them with the kind of background needed for their thought, scholars are in a serious predicament. What scholarship can provide is at best very abstract formulations and guidelines. It is likely that a meaningful statement, relevant to the political issues of the day, will have to transcend scholarship--and definitely the kind of scholarship encouraged in our disciplinary academic world. But transcending scholarship leads one to make statements on which one does not have the relative advantage of scholarly expertise. Scholars are using their scholarly reputations to make statements that are at heart political. They confuse the related but very different vocations of scientists and political agents.

I think awareness to this fact led Smooha and his critics to present their enterprise as purely scholarly. My argument is, in effect, that this presentation is misleading. The real debate between Smooha and his critics is normative and political, not scholarly and theoretical. Let me make clear, then, that I do not regard this paper, and the arguments presented in it, as primarily the products of scholarship. Rather, they are an invitation to a debate in which all citizens should participate and to which scholars may make a limited contribution. I therefore take the liberty to assert many things that should be argued for, trusting that those who want to argue them will challenge my assertions. 17


The Central Questions: A Reformulation

A note about terminology before I start. Smooha and his critics talk about Israel as an "ethnic state." I prefer to talk of a "Jewish state." While the Jewish state has clear ethnic features, the choice of "ethnic" as an exclusive descriptive label obscures at least two elements that I think should be emphasized: the deep religious element in Judaism, reflected in the inter-Jewish debate, and the ambiguity between ethnicity and nationhood. The ethnic-national [End Page 52] ambiguity exists for the identity of Palestine and Palestinians as well. And clearly a Palestinian state will have to cope with tensions and connections with the religion(s) of its citizens, as so many of the countries in the region have to do. "A Jewish state" encapsulates all of these tensions, and thus permits a better framework of discussion of the complex reality than either the ethnic or the theocratic perspectives. On the face of it, "Jewish," with its emphasis on a unique combination, puts a stop to comparative analysis, and stresses the sui generis nature of Israel. I oppose the tendency to think that Israel is so unique that no comparative analysis can be helpful and illuminating. The relevance of analogies, however, depends on our awareness of the complexities, and one of them is precisely the relationship between ethnicity, religion, and nationhood. 18

Because of the charged nature of the debate, no label is simple. I have chosen the following labels because of, not despite, their political overtones: "Israel" for me will be "pre-1967 Israel," and the combination of Israel and the Palestinian territories its has occupied since 1967 I will call "Israel/Palestine," 19


The Normative Questions

A Jewish State?

A Jewish state is also a deeply contested concept. At least three different meanings may be identified: a state with a large Jewish majority, a nation-state in which the Jewish people exercises political self-determination, and a state inspired by Jewish religious law. A large Jewish majority in itself may give Jews security and a measure of self-government. It may, but does not have to, mean some cultural cohesiveness. 20 A Jewish nation state will see the establishment and maintenance of a Jewish majority as an important, indeed crucial, matter. Its policies toward members of other nations living in its territory may move along a continuum, with full civic equality on the one side and total absence of rights on the other. A Jewish religious state may also move on a continuum, between a full theocracy (in which decisions are made by religious leaders according to religious law) and a state that accommodates the fact that it has a large observant group within it. For a state to be Jewish, on the conceptual level, it needs to have either a Jewish majority or some form of Jewish particular identity.

Israel is clearly a Jewish state, on all these spectra. It has a large Jewish majority (about 80 percent). It is a nation-state that maintains strong control over the symbolic and material aspects of the state. Hebrew is its [End Page 53] language; its holidays, religious as well as national, are those that belong to the Jewish calendar. Jewish religion is very present in public life, and matters of personal status are controlled by Orthodox religious law.

The claim of Jews for a state is a private case of the claims of peoples to political self-determination. 21 It presupposes that Jews are a nation, not just a religion. While this is debated by some, I will not seek to support the nationhood of Jews here. Despite the fact that Judaism is almost the only known religion that is not multi-national, 22 I take it that, with secularization, it is quite possible to suggest that what used to be a combination of a religion and a nation has now become a nation, whose nature and boundaries are only partly determined by religion. 23 Clearly, this is denied by many orthodox Jews, who claim that, even today, the borders of the collectivity should be exclusively defined by the Halakha [Jewish religious law]. Yet they, too, do not see Judaism as exclusively a religious faith. 24

A harder hurdle is the fact that, at the turn of the century when political Zionism became active, Jews had no territorial base in which they formed a majority. Granting them political self-determination in any given territory, with the implied necessary dislocation and injury to the populations of that territory, thus required unique feats of justification not encountered by many other modern claims for political self-determination. 25

It should be stressed that this hurdle is of great moral significance. It is true that the claim of Jews for political (rather than just cultural) self-determination is strengthened by the fact that their statelessness has clearly contributed to a long history of persecution by other nations and religions, culminating in the genocide of the holocaust. On the other hand, even the need to be effectively protected cannot justify the denial of the rights of individuals and groups to self-determination on their land, including the right to control immigration to their territory. Consequently, the case for Jewish self-determination depended, at the start, on the combination of two facts: the moral possibility of creating a Jewish state (or region, which would permit autonomy and control of defense) without dislocating or dispossessing others to a serious extent, and the success of Jews in creating a critical mass of Jews in some place, so that there was a territorial base justifying the political solution of creating a political unit whose raison d'être would serve as a center for the Jewish people.

Against this background, it is not surprising that Zionists often talked about "a land without a people to the people without a land." This belief that Palestine was empty and waiting for the returning Jews was an important part of the legitimation of Zionism. Clearly, this belief was false: Palestine was not an empty territory. On the other hand, The Jewish settlement in [End Page 54] Palestine was not just another colonialist enterprise of people seeking lands to colonize and settle, as some would argue. Jews came to Palestine because it was going home for them, even if one does not think history gave them historical or religious rights to the country. My conclusion is that, in 1900, Jews did not have a right to establish a Jewish state in Zion, but they did have the right to try and create the conditions that might in turn support such a right. And they did exercise this right successfully.

The Palestinians had the correlative right to try and prevent Jews from settling in their midst. They could foresee what the Jews wanted and that success would possibly lead to their own dispossession, and it was more than legitimate on their part to organize a movement against selling land to Jews, or seek British legislation that would limit Jewish immigration to the country. While Palestine was not empty, the tragedy of Palestinians is that they did not have full control over immigration to their country, so that they could not effectively prevent Zionist settlement in the area.

The UN decision in 1947 was of great moral and political significance to the Zionist enterprise: it reflected the judgement of the international community that the reality created in Palestine and in the world justified recognizing the right of the Jewish people to political self-determination in a part of Palestine, alongside a Palestinian state, and on the condition that the equal rights of non-Jews in the Jewish State be protected. 26

Since then, the case for the justifiability of a Jewish state has only strengthened: Massive Jewish immigration has strengthened its Jewish majority. Most of Israel's Jewish citizens were born in it and have no other home. Having a Jewish state has indeed facilitated an important revival in Jewish culture. While the contribution of Israel to the safety of Jews around the world is not clear, Israel succeeded in changing the baseline: The question now is not the justice in establishing the Jewish state, but the justice in dismantling it, against the wishes of most of its citizens. I have not seen a serious argument for this position. 27

My conclusion that a Jewish state can in principle be justified is weak in at least two senses. It does not state that a Jewish state is the most just political arrangement available in the region, or that the costs of a certain set of arrangements existing in the Jewish state may be such that it is not justified. I now turn to these questions.


A Jewish State or a Bi-national State?

There are voices calling for the adoption of a bi-national state in the region under both the one-state 28 and the two-state 29 conceptions. While the challenge is real in both contexts, I think it is important to distinguish [End Page 55] between the two scenarios. A bi-national state with equal power-sharing is a moral and political necessity if there is one state, while it is a possibility to be considered, but one that may be morally rejected, under the two-state scenario.

If the unit we are talking about is Israel/Palestine (or Israel and the Occupied Territories), there is no way that this unit can be justified (or be democratic even in the thinnest of senses) without being bi-national. The reason for that is simply that, within that territory, Jews and Arabs are populations of an almost equal size (and with the different birth rates and predicted Jewish immigration, Arabs may well become a majority within Israel/Palestine in a short time). Within such a state, constitutional arrangements made by the parties may grant each of them autonomy, which in part may be territorial. But there is no possible justification for granting any one of the groups’ control, or a privileged possession, over the land and the population as a whole. Such hegemony will not be supported by free elections in which all those subject to the state can participate. If Israel/Palestine is to be a Jewish state, it will have to deny the non-Jews the right of effective political participation. There is no way a Jewish hegemony can be maintained in such a state without disenfranchising all or a large part of the local Palestinian population.

It must be clarified that this state need not be neutral toward the non-civic affiliations of its citizens. 30 In fact, it is likely that this one state would not be a liberal country in which all ethnic and religious affiliations are privatized, because a large majority of all people living in the region do not want it to be like that. Even the Western liberal Jews who talk about a liberal state as an ideal mostly want to privatize religion and disestablish the orthodox leadership, but do not want to privatize Israel's national-cultural identity. The fact that a neutral liberal state is unlikely does not make it unjustified, of course. It also does not mean that we should not strive to strengthen the liberal components of the state. We should. 31 But it is odd, and even dangerous, to preach that the only justified regime for a given society is one that none of the parties in interested in. So this one state does not have to privatize non-civic affiliations. It must only treat them equally.

Against the background of the debate between Smooha and his critics, it is important to stress that this conclusion is not mainly a matter of conceptual necessity, or a derivation from a definition of democracy. It is mandated by actual realities. A Jewish state over the whole of Palestine is patently unjustified. It cannot be based on free elections in which all or most of those subject to it participate. It therefore will not be democratic. And experience shows it would not be stable either. [End Page 56]

This conclusion seems to me self-evident. It is therefore important to stress that it is not universally accepted by all members of the contending parties on both sides. Most of the supporters of "Greater Israel" among Jews crave a Jewish state over all of Israel/Palestine. Abstract national dreams are legitimate, and may be important parts of nation-building narratives. But many Jews act on this dream politically and continue to push for a reality that might consolidate Jewish control over as much of the territory as possible. When faced with the question of the fate of Palestinians under such a scheme, many of them become vague or equivocate. Palestinians are now primarily busy with building their own political institutions and with preventing continued Jewish expansion. This is a relatively easy struggle to explain and justify. But the objection to Oslo and to Arafat is based in part on active political ideologies that deny any legitimacy to a solution other than a Moslem Palestinian state over Israel/Palestine as a whole. And many Jews report with concern the fact that Arafat himself legitimates such goals. Palestinians of these views, too, become very vague when asked about the fate of Jews in this state. 32

The moral and political picture is very different if one operates within the two-state scenario. It is true, as Ghanem et al. point out, that the present reality is complex, and that the 1967 borders are in many senses virtual. On the other hand, despite the fact that the occupation is now longer than the life of pre-1967 Israel, I do not think it is clear that the unification of these parts of the country is indeed irreversible. In fact, the moral and the political necessity that one state in Israel/Palestine will be a bi-national state in this very strong sense is one of the main reasons so many Jews, and many Arabs, prefer the "Two states for Two peoples" solution.

In other words, I do not think Smooha's working hypothesis--that Israel will remain the relevant political unit--is unrealistic. To say that is to presuppose the defeat of the peace camp in Israel. While this camp has not won, it has not lost either. It is impossible, at this stage, to know what the outcome of the long and non-linear political struggle is going to be. 33

Within an Israel conceived in this way, the case for a bi-national state is not an obvious winner simply because of the large discrepancy in numbers between the groups, the possible justification for permitting Jews political self-determination, and the probable impracticality of making Jews and Arabs give up symbols and controls connected with sovereignty. This last factor is of special force when we recall that this reluctance is not exclusively symbolic, and may have valid reasons related to security and economy.

In fact, part of the attractiveness of the bi-national solution within Israel is its ambiguity: Does it require only recognition of some group [End Page 57] rights to Israeli Arabs, in addition to their individual rights, so that equal citizenship becomes richer and stronger? Or does it involve the voluntary agreement by Jews that the state will stop being the place where they exercise their right to national and cultural self-determination? A Jewish state with recognition of Palestinians as a nation may well maintain a principle of Return, some control over resources and development (with fair and proportional allocations to Arabs), the flag, the anthem, the hegemony of Hebrew, and the right to determine public holidays. A serious bi-national state, even if Arabs only get proportional representation, can retain none of the above. Many of these elements are ones that are indeed suggested by even the weakest sense of a Jewish nation-state, which is--as I argued above--justifiable. The fact that so many people in the region support a one-state solution all theirs suggests that the physical security of members of the groups and their possessions may require that each group controls its own security. It is thus not clear in the name of what principle this set of features of a Jewish state can be rejected on moral grounds.


Are Israel's Present Arrangements Justified?

Many Jews, in Israel and abroad, reach the above conclusion with a sigh of relief. The relief is not justified. While I think there is a strong case for maintaining Israel in some senses a Jewish state, I believe many of the arrangements in present-day Israel, often justified by invoking this ideal, are not in fact justifiable. Among the arrangements which cannot be justified, and this is not meant to be a comprehensive list, are the orthodox monopoly over matters of personal status, 34 the present scope of the Law of Return, the complete exclusion of Israeli Arabs from centers of decision-making related to resources, budgets, and land, the systemic discrimination against Arabs in all areas of life, the absence of Arabs from the high positions of the Israeli civil service, and the complete asymmetry in the demand that Arabs learn Hebrew and Jewish history with no requirement that the Jewish school systems will teach Arabic and Arabic culture and history, facilitated and combined by the fact that Jews control Arab education. 35 I have also argued elsewhere that the reading of the election laws as prohibiting a party from calling for a peaceful change of the nature of the state so that it ceases to be defined as a Jewish state is unjustified, and that I doubt the wisdom of defining Israel as a Jewish and democratic states in the Basic Laws in a quasi-constitutional process that did not include a serious consultation and agreement with the Arab citizens of Israel. 36 [End Page 58]


Obligation to Obey the Law?

I do not believe the non-citizen Palestinians have a moral reason to obey Israeli laws. As far as they are concerned, these are laws made by others and imposed on them, not laws designed by their legitimate rulers to advance their welfare. 37 They of course have prudential reasons to obey Israeli law, and they have strong moral reasons to obey the laws that seek to regulate most human affairs within their community and in their relations with others. In addition, they have clear obligations toward those who may be harmed by their actions. The injustice of the enduring Israeli occupation does not relieve them of these moral duties. Nonetheless, they are not morally bound by Israeli laws as such. They are justified, within these moral constraints, if they choose to rebel against Israeli occupation.

The situation is very different concerning the debate among Israeli citizens about its nature and its legal arrangements. Rebelling against the legitimate authorities of one's country is only justified if two considerations obtain: First, this government is unjust to an extent justifying the use of force to change it; Second, effective change cannot be achieved by peaceful means. Neither of these conditions obtains in present day Israel. Disobedience to particular laws or struggles to make changes falling short of a violent change of government are, of course, different matters. However, delegitimation of Israel's political institutions, as distinct from criticizing them for particular decisions they make or legitimate, is unjustified. Moral considerations, not only prudential ones, should make the Israeli Arabs, and any other group in Israel that seeks to protest its political arrangements, refrain from the use of terrorism, murder, or armed rebellion to achieve their political goals.


The Stability of a Jewish State

There is a direct relationship between the stability of a state of affairs and the incentives of those affected by it and who can affect it to change it. These incentives, in turn, are a complex of factors, among which a sense of justice, or more usually, a sense of injustice, is a strong component. But mostly, individuals are not only motivated by their perception of the justice of the situation, even where they feel themselves the victims. If one has nothing to lose but one's chains and humiliation, one may well rebel. Once this is not the case, political mobilization becomes a more complicated matter. And [End Page 59] without political mobilization, it is very hard to change the status quo, especially if the forces that benefit from it are strong.

It follows that both those who are interested in change and those who are interested in the status quo have strong prudential reasons for analyzing the structure of relevant incentives. To a large extent, the structure of incentives is a matter of social facts and can be studied independently of one's normative outlook. On the other hand, rational people will be more easily mobilized if they believe they have a chance to succeed. Those who want to change the status quo thus have a vested interest in persuading their audiences that the situation is unstable and that they have a good chance of changing it. Since people who feel a state-of-affairs is very unjust will want others to help them fight against it, one's normative outlook thus inevitably colors one's assessment of reality, providing many opportunities for "leaps of faith."

Is the status quo, defined in the two-state scenario as Israel, maintaining a distinctively Jewish character, stable? Smooha argues that it is, based on the analysis of the preferences of both Jews and Arabs. While the first preference of Arabs is a bi-national state in Israel, the most popular choice for both groups is an improved status quo. I find this analysis intuitive and persuasive. In fact, I believe an improved status quo between Jews and Arabs is more stable than the status quo in the inter-Jewish rift. If I am right, the Jewish-Arab status quo in Israel is stable despite the fact that it is, as I have suggested, unjustified in many ways. This finding becomes even more significant when contrasted with the fact that Jewish control over Greater Israel is not a stable situation. Awareness of this fact on the part of a growing number of people within the Jewish elites (and not the normative power of the conclusion that Jewish control over that land was unjustified) provided the push toward the move in the direction of a two-state solution in Oslo.

Thus, this set of predictions about stability, while extremely speculative, lends support to the partly independent normative conclusions of the previous section.


The Conceptual Questions Revisited

My analysis indicates that, on the conceptual level, two possible meanings or extensions of "a Jewish state" are indeed excluded even under the thinnest conception of democracy: one is a full-blooded theocracy, run by rabbis and priests; the other is a nation-state which disenfranchises non-Jews in it. Both are not democratic because they are governed by standards which do not require the consent, in whatever form, of all adult people subject to them. Accepting this conceptual implication leads me to say that [End Page 60] the one-state scenario with Jewish control is not democratic, and not only unjustifiable.

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