The Oslo process has all but collapsed; to some the writing has always been on the wall. To others, the agreement was an historic gamble, and failed by the fault of both parties. Whatever the case may be, the process did not end the way its protagonists had hoped it would. The prospects of the Jewish State, and its self-justification, seem more complex and fragile now than they seemed to many in 1996.
The forces and hopes driving the founders of Israel included a strong wish to establish a democratic country, but their prime mover was the dream of a Jewish state. The founders of the state did not want to merely establish yet another state like all others, which will provide its population with democracy and justice. They wanted to establish a Jewish state, which would be democratic and just.
As we shall see, there have always been those who argued that this dream was, in principle, both impossible and immoral. To argue the contrary, one must show that Israel can succeed in maintaining an acceptable balance between its democratic nature and its Jewishness, and that it has the structures that may guarantee that it maintains a stable existence as a country, which is both Jewish and democratic in the future. I for one believe that the Zionist dream of a state that is both Jewish and democratic is conceptually possible and justifiable in principle. I also believe we must think seriously about the implications of our wish to maintain Israel as a just and democratic state which is also Jewish, examine whether these conditions are in fact met in contemporary Israel, and study what needs to be done in order that they are.
In this book I sketch the way in which Jewishness and democracy may be combined within Israel in principle, and examine how this compatibility can be concretely realized in some of the central controversies in Israel’s public life. I believe strongly that these issues are at the heart of the Zionist enterprise. I do not present a systematic, comprehensive theory; I do not propose the last words of a normative quest. My hope is that this small book will make a contribution towards a more serious and deeper public debate of these issues. Such a debate is essential if Israel is to continue to exist as state that is Jewish and democratic.
This is not a subject that one is likely to write about from ‘nowhere’, looking at the facts with impersonal detachment. Instead of denying the effects of this emotional bias, I prefer to concede it at the outset. This book is a part of my attempt to make sense of, and support, the fulfillment of the wish of Jews to exercise their right to political self-determination in their homeland. I want Israel to provide a stable and fair home to its population, irrespective of its ethnic or religious affiliation. Naturally, this wish is alien, maybe even unworthy and illegitimate, to those who reject and oppose it; this book is unlikely to be meaningful to them. It is addressed mainly to those who share the wish that Israel stays, in some sense, a Jewish state. At least, the readers must accept this possibility as legitimate. Once this condition is met, I expect the book to be relevant to readers whose conceptions of democracy, the Jewish people, the conditions necessary for its survival, and the features of a just society, are very different than mine.
I write this book as a secular Jewish woman, with a firm commitment to humanism and human rights, who is also a Zionist. By ‘Zionist” here I mean only the belief that the Jewish people has a right to political self-determination, and that this right is now exercised in Israel. There are tensions between parts of this identity, but I do not see them as contradictory. My identity and its complexities do not result from laziness, inertia or convenience, but are chosen by me. And, I expect, by a large part of the Israeli Jewish population. I also expect that other Israelis – orthodox and haredim among the Jews, and Arabs and other non-Jews - will not disappear, and continue to form important parts of Israeli society. I do not take for granted the continued stable existence of Israel as a Jewish and democratic state. Such an existence seems to me a huge challenge, whose prospects are not self-evident. My purpose is to identify courses of action that will improve these prospects, against the background of a diversity of groups, which will persist and even increase.
I come from a family that lived in this country for many generations, alongside Arabs and members of other nations. We did not lose family members of Europe. My maternal grandfather and uncle were sepharadi rabbis, who spoke Ladino and Hebrew. My father’s family was traditional, not orthodox, strongly committed to Hebrew, and familiar with Arabic. My father and his siblings all spoke the rich, nuanced Hebrew in which the differences between letters are clearly noticed. Though not halachically observant, their home was full of traditions, prayers, songs, and remote from any process of ‘secularization’; a revolt against religion, the religious way of life, or its prophets and teachers. My parents grew up in a multicultural society. They knew many languages, traveled to many places. Life was, at one and the same time, very Jewish and communal, but very open and responsive to a non-Jewish society and its charms.
Of course background alone does not determine the ‘voice’ or the ‘tone’ in which a book is written. I started thinking about the tensions between Jewishness and democracy not as the center of the existential problems of my country, but as a result of the fact that Israel was defined as “Jewish and democratic’ in the basic laws enacted in 1992. My reflection began with the legal meaning of the term, and with the implications the 1992 enactment had for the role of law and the judiciary in Israel’s public life. It very soon became clear that the legal-professional dimension was but the tip of the iceberg. Today it has become fashionable to talk about all the issues in Israel in terms of the tension between democracy and Jewishness. So much so, that the invocation of the tensions between the two has become misleading. Many real issues in Israel are not related either to democracy or Jewishness, or their combination. But many other real issues in Israel are indeed either generated by, or at least intensified by, these tensions. And many of these tensions arise from the fact that various groups in Israel’s population see democracy and Jewishness in very different ways; and that the dreams and hopes of one group are often the fears and the threats of the other.
For this reason, my various prescriptions for the synthesis of Jewishness and democracy do not reflect my personal ideal , the state that might have been possible if all people in Israel shared my identity, opinions, beliefs and emotions.
This stance, which builds into itself an awareness of the wishes and needs of others, may in truth involve foregoing stricter conceptual consistency and coherence. Incorporating into one’s own analysis the perceptions and aspirations of others, even when those are inconsistent with one’s own, is essential for any possible compromise between competing views, so that their adherents can live together without the need to be victorious. To me, this is the true meaning of liberalism – creating the political conditions, which permit the coexistence of different groups, without requiring them to lose their distinctiveness. The costs of compromise are many and varied – personal, theoretical and political. The personal costs result from the fact that a strong willingness to be attentive to the needs and perceptions of others may blur one’s own place and identity, and indeed compromise one’s most basic commitments. The theoretical costs come from the fact that political compromise is rarely as neat and clear as an ideological position that is structured with coherence and elegance in mind. Most frightening and discouraging may be the political dangers. Political compromise is not an innocent theoretical game, but an attempt to resolve a basic conflict of interests. The deal will be good if each party maintains what is essential for its continued, dignified existence. But this is not always possible. In addition, the sides may try each to get their best deal, with the possible failure of one’s own side to maintain the conditions necessary for its survival and flourishing. There is always the fear that points one yields as a sketch of a possible compromise will be seen as conceded ground, from which negotiations begin anew. Once one seeks not to move any further, there is the risk that I can be presented as obstinate and combative, while the other side presents itself as generous and reasonable. It may be safer, therefore, never to concede anything that is not joined to a symmetrical concession by the other side.
These costs are real and serious. Nonetheless, my path will be to sketch what I see as possible compromises. In fact, I do not think there is an alternative way for someone like me. I am working at scenarios that will improve Israel’s chances to survive as a country both Jewish and democratic, with a real commitment to the equal dignity and liberty of all the communities in its population. The deep rifts and divisions between the main communities of Israel mean that any political framework designed to permit them all a dignified existence must take into consideration, to some extent, their different goals, fears, aspirations and beliefs. Only a willingness to do this on my part will justify the demand that other groups do so as well. The willingness to see that the all groups in a society share the interest that their society works well is, to me, a central aspect of democracy, which I take to be a form of government committed to solving problems by accepted procedures of public discussion within a shared political framework. In the absence of willingness to accept the differences among groups and accommodate between them to some extent – the only way left is force. That false mode of conflict-resolution will generate a society, which is neither democratic nor just.
Some look at the tension between Jewishness and democracy at the abstract level. They examine the concepts of ‘Jewishness’ and ‘democracy’, and decide what their relation is. This is often done by those, who reach the conclusion that the two are in fact inconsistent. I find this approach unhelpful, since I believe that the tensions are not at the conceptual level, but at the empirical, social and political one and are, thus, contingent and changing. It follows that one cannot really discuss the relations between Jewishness and democracy without some basic facts about Israeli society, and especially about the changes it has undergone in recent years. True, the tensions between Israel’s democratic form of government and its role as the state in which the Jewish people implements its right for political self-determination have existed, in different forms, from the inception of the state and before. In some sense, these tensions are immanent in the very attempt to combine Jewishness and democracy in a state. Nonetheless, the ongoing nature of these tensions, their visibility and modes of resolution, are in flux. The syntheses of Jewishness and democracy are dynamic. Change manifests itself in our analysis of democracy and its implications, and in our understanding of the implications of the Jewishness of the state.
In looking at Israel’s contemporary problems, it is important to understand why the debate about these concepts and the tensions between them has returned now to the center of public debate in such an intense way. Conceptually and ideologically, there is an immanent tension between democracy and an ethnic-religious state, between a universalistic attitude to all citizens, irrespective of religion or ethnic origin, and an official establishment of a cultural or national particularism. This tension becomes a vexing political problem because Israeli society is a deeply divided society, and two of its main rifts relate to this tension. One is the intra-Jewish debate concerning the nature of Judaism (Is it strictly religious, national-religious, or secular-ethnic and cultural). The other is the Jewish-Arab divide (between Jews, with their varying conceptions of Judaism, and Arabs, with their own variety of religious affiliations, and their different conceptions of their own identity and its components). The two rifts are serious enough to threaten the stability of Israel. Identifying Israel as a Jewish and democratic state is in fact one possible cluster of answers, whose possibility and desirability are highly controversial, to the question of the appropriate structure the rifted Israeli society should adopt.
The Arabs in Israel are a large minority: They number about 17% of its population. The numbers are less accurate for the Jewish groups. The ultra religious (haredim) are between 8 and 10 percent of the Jewish population, national orthodox are about 15 percent. Non-orthodox Jews are a large majority. But they consist of a small number of Reform and conservative Jews, of about 25% to 30% ‘secular-by-conviction’ Jews, and by a large group of ‘traditional’ Jews.
From the very beginning, and to a lesser extent to this very day, there is no symmetry between the two great divides. The Jewish-Arab rift has been systematically ignored by many. It did not have a high visibility, and was regulated mainly by Jews, without cooperation and structured consultation with representatives of the Arabs themselves. There has never been a systematic public discussion of the status of the Arabs citizens of Israel and its representatives have not commonly participated in decisions concerning Arabs and their interests. By contrast, the intra-Jewish debate has enjoyed constant discussion and elaboration. For many years, it was generally accepted that controversial issues among Jews must be regulated by power-sharing mechanisms. This acceptance led to the fact that for many years, state-religion issues in Israel were controlled by the principle that the ‘status quo’ be maintained, and only changed by agreement. Yet despite the many differences between the visibility and the mechanisms of resolution of issues pertaining to the two rifts, they did have something in common. Both clusters of issues were handled within ‘ordinary politics’; and as often as not untouched by statutes of the Knesset, but dealt with by low-visibility administrative directives, or by laws reflecting and ratifying the existing social reality. Principled declarations and constitutional understandings seemed too hard to obtain, and were not even sought.
One byproduct of this was the relative low profile that the courts, especially the Supreme Court, kept on both the debates and the arrangements adopted to deal with them. Here, too, there is a difference in the attitude of the Court to the two rifts. On all matters of review of administrative action, the court regularly reviewed the procedures of the authorities, and if these were seriously flawed, invalidated them. However, there was a consistent attitude of deference to the substantive political judgements of decision-makers. As a result, the protection of Arab interests and rights vis-à-vis government actions that met procedural requirements as such was very weak. Moreover, in many of these decisions, the discourse is emphatically neutral; consequently, the court avoided the need to address the fact that the lands appropriated, or the people whose freedoms were denied, were Arab. In the intra-Jewish debate, the judicial low profile took a different form. The court was not neutral. It was very consistent in sounding a voice against religious coercion, and against limitations of people’s freedom from religion. It demanded that all violations of such freedoms be enacted in primary legislation. However, once such legislation was enacted, the court respected the parliamentary arrangement and applied it. When the review of administrative action required taking a stand between the religious and the cultural-historical interpretation of the Jewish nature of the state, the Court tended to avoid the substantive decision.
The new visibility and intensity of public discussion regarding tensions between democracy and Jewishness stems in part from the erosion in the ways Israeli society addressed the two rifts. One reflection of this erosion is the fact that all the three major groups we are discussing here – non-orthodox Jews, orthodox Jews and Arabs – feel today less comfortable with their situation than they had felt earlier. Interestingly, this is not because their situation had worsened. To the contrary, all three groups benefited from the lapse of time.
The Arabs in Israel enjoy now a much higher level of education and freedom than they did when the state was founded. For almost twenty years, most Arabs were subject to military rule, their elites having mostly fled the country. Gradually, the blatant limitations on Arabs’ freedom of expression, association and movement were removed. After 1967, Arabs in Israel strengthened their connections with the Arab world, and with their Palestinian brethren. The political power of Arabs grew, and in 1992 they were part of the parliamentary bloc that enabled Rabin to form the government which initiated the Oslo process. As of this writing, there are 13 Arab MPs, most of them in Arab parties with explicit Arab agendas. All these processes significantly raised the level of hopes, demands and expectations of Arabs in Israel. The growing vocality of their demands, in turn, raised the visibility of the rift and some fear, resentment and opposition in Jewish circles.
All Arabs want more equality and object to discrimination against them. As a group, Arabs are among the weakest groups in Israeli society. Their political weakness has resulted in the fact that in many contexts, resource allocations in the Arab sector are significantly lower than they are in the Jewish sector. Arabs are under-represented in all senior political, academic, professional and economic positions. Arab demands and aspirations are less clear on the symbolic and ideological level. Until recently, some of them advocated the solution of ‘Two states for Two Peoples’, indicating that Israel could be the Jewish state, but there should also be a state for Palestinians. More recently it appears that at least the leadership now promotes the idea that Israel itself, even if there is a Palestinian state, must be ‘A State of All Its Citizens’; or, in other words, that Israel give up its Jewish particularity. While the slogan sounds as if the demand is that Israel becomes neutral, so that all non-civic identities will be equally privatized, it appears that the Arab demand is that Israel will give equal public recognition to Arabs, so that it will become a bi-national state (or a multicultural one). The practical implications of these demands are also unclear. Some demand integration into Israeli society in all ways, but most insist on significant measures of autonomy, and would like to maintain separation in education and in housing arrangements. Among Arabs in Israel there is also a variety of attitudes to religion and to tradition. Arab intellectuals express doubts concerning the right of Jews to political self-determination in Israel. They also hold different views about the ways in which the Palestinian ‘Right of Return’ should be recognized and implemented. Arab leaders in Israel express strong identification with the Palestinian struggle for independence and with Arab regimes in the region. And their criticism of Israel and its policies is blatant and aggressive.
There are also changes in the attitudes of Jews towards Arab demands. There is a growing willingness to concede the principled demand that Arabs are entitled to civic equality, and to pay it at least serious lip-service. There has been some progress towards more equality in allocation and access. Israel’s Supreme Court has declared the principle of non-discrimination, and applied it to the controversial issue of land allocations. On the other hand, there is also a growing sense among many Jewish circles that the Arab citizens of Israel are a serious and growing threat. As a result, there are periodic suggestions that the political power of Arabs should be limited.
Both these trends came to a dramatic high point in October 2000, when 12 Israeli Arab youngsters were killed by Israeli police during a few days of demonstrations and riots. The events are now being reviewed by a Commission of Inquiry. The Arab demonstrations started together with the beginning of the second Palestinian uprising. The events shattered the delicate fabric of Arab-Jewish relations in Israel. While the violence ended after a few days, the repercussions of the events are still unfolding. In February 2001, the Israeli Arabs boycotted the elections for Prime minister, thus expressing their anger and disappointment with Ehud Barak, and their unwillingness to vote for Ariel Sharon. I
The heightened tension among Jewish groups is, similarly, the result of a growing sense of being threatened by the other groups. The orthodox feel that the status-quo arrangement was eroded against them: There is less observance of Shabbath laws and practices, more avoidance by many of the rabbinical courts monopoly over matters of marriage and divorce, and a general weakening of the consensus concerning the orthodox monopoly generally, in favor of religious pluralism and recognition of the non-orthodox versions of Judaism. Some of these trends have been helped or encouraged by decisions of the Supreme Court. Interestingly, secular Jews too feel that the status quo was eroded against them. There is more presence of religion in public life. The political power of the religious and ultra religious parties is growing; Jewish particularism, which was quite pluralistic and amorphous, is becoming more religious and halachic. In addition, both parties now seriously doubt the status quo itself. The orthodox are not happy any more to accept the deal of Shabbat, control over kosher food, educational autonomy and money for their needs in return for a willingness not to participate in matters of foreign policy and security, or in general matters of education and welfare. They continue to demand autonomy and allocations, in increasing measures. But they now want a say on all matters relating to Israel’s decisions, and insist that they should participate in the decision concerning its priorities and the construction of its public sphere(s). In addition to the struggles between secular and orthodox (reforms and conservatives often join the side of the ‘secular’ in these debates), there is also a growing tension between the national-religious camp and the haredi groups. The secular majority, in turn, has lost much of its patience with the arrangement granting an orthodox monopoly over matters of personal status, conversion and burial, and is increasingly resentful of the large allocations given to the haredim, despite the fact that they do not serve in the army and do not participate in the work force. The situation has become even more charged because of the frustration of the non-orthodox majority, who feels exploited and ‘blackmailed’ by the haredim due to the fact that they have become almost essential to form a government. Clearly, the political situation is unstable. All groups wish to improve their situation, by both maintaining parts of the status-quo eroded against them, and by the adoption of new arrangements more suited to their interests.
Both rifts deepened with the developments that started with the Oslo process in 1993, which also highlighted the complex relationships between them. While the pro-Oslo vs. anti-Oslo polarization as such is independent of the religious-secular divide (and even of the Arab-Jewish divide), the broad division is clear. Most religious Jews identify with the Right, which originally rejected the Oslo accords, whereas a large majority of Arabs supported the Oslo process.
Almost inevitably, the struggle of the Jewish right against the Oslo process took, for some people, the form of fighting the legitimacy of Arab participation in the political decisions concerning Israel’s borders and its agreements with its neighbors. These forces sounded the demand that these decisions be made by a “Jewish majority”. Furthermore, the struggle against Oslo was presented as a vindication of Judaism and Zionism. It was based on a deep reluctance to consider giving up political control over parts of the Jewish historic homeland, with the host of Jewish holy places found in it. A strong group in this struggle was the ideological settlers, most of whom are national orthodox. This Right-Left divide now took over, and blurred to some extent the principled differences between secular and orthodox. As we shall see, it created strange alliances, and produced a complex dynamic for the two rifts under discussion here.
The Jewish ‘peace camp’ was not depicted in its opponents’ rhetoric simply as a group willing to take the risk of negotiating and settling with the Palestinians. They were described as ‘Arab lovers’, as ‘anti-orthodox’, and as people without any deep and serious ties to the Jewish people and its homeland. They, in turn, saw those who opposed Oslo as sectarian, indifferent to the high costs paid by the Palestinians for their dream of a Greater Israel, and coercing all Israelis to defend and fight for the continuation of the occupation. And indeed these cultural and ideological issues are genuinely implicated by the political process. Clearly, this bitter controversy colored the debates between secular and orthodox, and attitudes to the possibility of the co-existence of democracy and Judaism.
This sharpening of ideological debates within Israel was combined with some new trends in the institutional structure of Israel. Complex processes brought more petitions – such as equality in allocation, education and housing for Arabs, the political representation of Arabs, non-orthodox conversion, Shabbat arrangements, and prayer next to the Western Wall - to the Supreme Court of Israel, and the Court started to adopt a more activist stance towards them. Even if in terms of bottom lines, the court was usually very careful, this more activist posture yielded more uncertainty and instability in the system.
Until now, the understanding was that most of the important decisions concerning the Arab-Jewish rift and the divide between secular and orthodox Jews would continue to be made by the political system itself. This assumption was challenged by the growing involvement of the court. First, the court now undertook the authoritative interpretation of arrangements in the state-religion arena, as well as in the Jewish-Arab divide. Furthermore, the court analyzed these cases in terms of the protection of human rights and basic values of the Declaration of Independence, which in turn made legislation to ‘amend’ the court’s interpretations very difficult. No legislature wants to appear to enact laws that were declared by the high court of their own system blatant violations of human rights. Finally, the 1992 basic laws, declared as a ‘constitutional revolution’, and interpreted as giving the court the power to review even Knesset laws inconsistent with these laws, created a real danger that the immunity of the political arrangement in these sensitive areas has ended. The danger became even more pronounced since these laws make the description of Israel as a “Jewish and democratic state”’ a part of the authoritative legal material in Israel. The courts may thus be invited to develop their own interpretations of what the combination mean, and to use it to invalidate governmental policies or even laws.
This development may thus transfer some of the power to make decisions in these sensitive areas from the political system to the courts and the legal community. This is a significant development for at least three reasons. First, judicial decisions enjoy higher visibility then many governmental deals and decisions; secondly, based as they are on principles, rather then on the interplay of powers and interests, judicial decisions may have an all-or-nothing aspect, supported as they are by the coercive power of the state. This is very different from the working of the political system, which may allow for negotiations and compromise; thirdly, members of the judiciary are by and large very different in their education, ethos and commitments from members of the political system.
An additional relevant factor is the increasing interest, in Israel as well as all over the world, in the politics of identity and of membership. This interest is typically raised when societies within the liberal-individualist tradition encounter societies different than themselves, and subcultures in their own lands. In these different societies, membership and group identity are seen as more central and important to one’s welfare. Such encounters have generated, among other things, various critiques of liberalism from communitarian and republican perspectives, and a large and growing literature about the meaning and the benefits, as well as the dangers, of multiculturalism. In Israel, the struggle of minorities who are fighting against individualist liberalism centers round seeking the contribution of the state to their collective group needs, in addition to the demand that it protects individual human rights. As a result, many groups are interested in an active involvement by the state in a variety of measures helping them to maintain and even strengthen their communities, and help them transmit their culture and values to their children. It is ironical that this quest may be strongest among the majority group – the non-observant Jews, who have lost the sense of their uniqueness, and seek ways of enriching it.
We can now proceed into the body of this essay. In the first chapter I examine various claims, coming from different theoretical and political perspectives, that a Jewish and democratic state is either logically impossible or cannot be justified in principle. As I reject these claims, some features of the Jewishness and the democratic nature in Israel will emerge. In the second chapter I describe a few dimensions of the combination between Jewishness and democracy in Israel. I look at a number of central arrangements, and at some decision-making mechanisms. I argue that some of these arrangements are very hard to justify, while some others are a reasonable and acceptable illustrations of the way Jewishness and democracy may go together. Building on the first two chapters, I examine in the third chapter some of the implications of the requirement that Israel be both Jewish and democratic. I argue that many of the issues usually presented as tensions between Jewishness and democracy are in fact well-known internal tensions within democracy itself. Nonetheless, there are indeed serious and deep tensions between the implications of Jewishness and those of democracy, applying to both the intra-Jewish divide and to the Jewish-Arab one. There are also meaningful weaknesses in the ability of Israeli society to handle these tensions well. Consequently, the prospects for a stable combination of Jewishness and democracy in Israel are neither simple nor self-evident.
Proceed to Chapter I: The Compatibility and Principled Justification of a Jewish and Democratic State