Some may wonder why I choose to devote the first chapter of my book to a question whose affirmative answer enjoys such a broad consensus among Jews in Israel. The breadth of this consensus is not reflected only in the fact that this description of Israel was included in the 1992 basic laws, which are seen by many as parts of Israel’s constitution. The validity of this statement is taken for granted by most of Israel’s Jewish political leaders. It was presupposed by the UN declaration of November 1947, to the effect that Palestine should be divided into two states, both democratic, one Jewish and one Arab. It forms part of the most basic political intuitions of most citizens of Israel, Jews and non-Jews alike. And it is well grounded in the minds of people whose commitment to democracy is questionable.
However, broad consensus often hides serious internal tensions and even incompatibilities. In Israel, it does lead to our reluctance to take seriously attitudes, from all sides of the political spectrum, that challenge these assumptions. These voices claim that the two features – Jewishness and democracy – are not compatible in principle. They advocate bold recognition of this fact. Practically, they advocate that, at least when the two features contradict each other, Israel should openly declare its commitment to one of them, and give up on the second.
I believe this reluctance is both unwise and dangerous. This is why I set out, at the beginning, to put the idea of Israel as a state both Jewish and democratic on grounds that are more solid than mere repression or denial of the difficulties.
It is not surprising that the tensions between the Jewishness of the state and its democratic commitments have been subdued in Israel’s declaration of Independence. This is a celebratory document, drafted by the leaders of the Jewish community. The drafters and signers intentionally cooperated in masking the fierce intra-Jewish debate on whether Jewishness is national or religious identity. Less intentionally, they all cooperated with the very low visibility of the tension between the Jewish state and the rights of its non-Jewish population.
The asymmetry in visibility between the two tensions becomes very clear in the records of the debate over the constitution in 1950. The Declaration specified transitory governmental arrangements until a constituent assembly produces a constitution, and a legislature is elected under it. The 1948 war that erupted immediately after the state was founded meant that the constituent assembly was only elected in 1949, and it was immediately granted full legislative powers and named the first Knesset. Once the urgent need to produce a constitution was gone, the government decided it did not want to go ahead with its enactment. The question was debated at great length in 1950. It is interesting to compare the way the two rifts are treated in that debate.
All speakers address the danger of a ‘cultural war’ between those who see Jewishness exclusively in terms of the Jewish religion, and those who see their Jewish identity as a matter of national and cultural affiliation. Some wanted to use the moment of constitution making to decide the issue, once and for all, against the religious conception of the Jewishness of the state. They wanted to entrench some form of separation between state and religion in the constitution. Others, including most of the religious representatives, presented the controversy as a good reason against making a constitution. To some of them, Israel did not need a constitution because its eternal constitution should be the Torah. All joined in emphatically distancing themselves from the point raised by Eri Jabotinsky, son of Zeev Jabotinsky, who served as a Herut MK. Jabotinsky argued that we needed to decide in the constitution the question of the status of the Arabs in the Jewish state; and that the resolution of this question was not simple.
For a variety of reasons, the Knesset decided in 1950 not to enact a constitution. In the first years of the state, devoted to war, mass immigration and consolidation of the state, there was not much political visibility to tensions between the particularistic Jewish character and the implications of universal values. Efforts were all devoted to building the Jewish State. The internal Jewish debates, on the other hand, were quite visible, but generally contained by the combination of the real needs of nation-building and the political control of Ben-Gurion’s Mapai.
What may be quite understandable in the first years is very surprising today. Israel is now a relatively secure, developed country. Moreover, the challenge that Israel cannot be both Jewish and democratic at the same time is now heard explicitly and vocally from all sides of the political spectrum, in Israel and around the world. Ignoring these challenges seems both unwise and dangerous. Such an attitude may make Israeli youngsters more vulnerable than they should be to allegations that the whole idea of a Jewish state is, in principle, unjustifiable. On the other hand, dismissing such challenges as mere anti-Israeliness may obscure important features of internal tensions within Israeli public life.
A telling example of this tendency to over-simplify the problem can be found in the way the then President of Israel’s Supreme Court, Meir Shamgar, responded to the claim of Meir Kahane that his party should not be banned under the law specifying that anti-democratic parties should be banned, because the same law also specifies that Israel is a Jewish state, and the two are inconsistent. Shamgar dismissed Kahane’s claim by saying that Israel’s Jewishness should not interfere with its democratic nature any more than France’s Frenchness interferes with its democratic nature. On one level, this may sound a very persuasive answer. But this appearance of analogy weakens considerably when we recall that French citizenship is open to all, irrespective of religion or ethnic origin. Clearly, this cannot be said for Jewishness. True, the particularity of Frenchness is not merely civic. There is an obvious cultural distinctness to it. And recent developments in France, and in all developed countries, suggest that the bonds of citizenship may not be enough to assimilate one into the culture of the host country. In France, too, there may be tensions between French citizenship and membership in the French cultural community. Indeed, in many European countries, the acquisition of citizenship now requires a measure of integration into the language and the culture of the host country. These measures are quite controversial. In ways that remind some of the debates about aspects of Israeli reality. While Shamgar’s analogy is not totally wrong, a lot of its appeal is lost when we recall that the different non-Jewish groups within Israel are not small groups of immigrants, who may be expected to assimilate into French culture while maintaining some ‘privatized’ communal features like religion. Non-Jews in Israel are large indigenous populations, most of whose members lived here before massive Jewish immigration, and before the foundation of the state. These communities have their own ethnic, cultural and religious affiliations, and they have no intention or wish to assimilate into Jewish culture. Moreover, Jews and Arabs in Israel are still involved in a persistent conflict, with many violent spells, whose end is not in sight. The conflict is fuelled by serious allegations of violence, dispossession, persecution and oppression, made by Arabs in Israel against Jews and the Jewish state. Israel is in the midst of a region with a huge Arab majority. In addition, since 1967 Israel controls the area between the sea and the river Jordan, which had originally was to be divided into a Jewish and an Arab state. Jews are still a small majority in this region, but it is expected that Arabs will become a majority in it within one generation. Against this background, it is hard to accept that the Jewishness of Israel, especially Greater Israel, is as simple as the Frenchness of France.
The tendency of many Jews to hide and distance these tensions between the Jewish particularity of the state and its commitment to civic equality has serious theoretical and practical implications. These in turn facilitate some faulty conclusions. These implications are the reasons I have decided to take the conceptual and political challenges presented to the idea of a Jewish and democratic state more seriously than others. I end up rejecting the challenges. Moreover, I conclude that the Jewish character of Israel cannot only be justified despite its tensions with democracy. In large part, it is based on the very democratic nature of the state. Nonetheless, my analysis shows that there are practices which are sometimes justified by the Jewishness of the state which are indeed inconsistent with democracy. And there are some ideals of the supporters of liberal democracy that are indeed incompatible with the idea of a Jewish state. This analysis will thus highlight the costs that the state imposes on its population to maintain its double-identity as both Jewish and democratic; will help us decide if we can and want to pay them; and will identify what needs to be done to help Israel survive as a just state which is both Jewish and democratic.
The challenges to the consensus that Israel can be both Jewish and democratic share the belief that the combination is incoherent, conceptually and morally. They all reject the practical possibility that a democratic country, especially one with a large non-Jewish local population, can maintain a solid affiliation with Judaism and the Jewish people, and serve as the nation-state of Jews. They all conclude that Israel must choose between these elements of its identity. The polar difference between these two groups of challenges lies in their choice of the preferred element of identity. Kahane and his followers think Israel should be, first and foremost, a Jewish state. Among members of the critical left, Israeli Arabs and radical supporters of Western liberalism many advocate the priority of democracy. The assessment of these challenges requires an examination of the concepts of ‘democracy, and ‘a Jewish state’. There are senses of ‘a Jewish state’ that all concede are incompatible with democracy, just as revolutionary Islamic Iran cannot be a democracy. When political decisions are made by religious leaders, according to religious law, what we have is theocracy. Theocracy is inconsistent with the most basic tenet of democracy: the consent of the ruled gives the governments its legitimacy. But there are senses of ‘a Jewish state’ which may well be compatible with democracy. After all, the US Supreme Court, while affirming the First Amendment with its separation between church and state, described the US as ‘a Christian country’. Most European countries are still seen as the ‘nation states’ of their particular peoples. This fact does not make them, by definition, non-democratic.
The controversies concerning the tensions between Jewishness and democracy stem from both the ambiguities in the conceptual analysis of the terms, and from disagreement about the actual and the possible realities of present-day Israel. Let me start with the conceptual analysis.
1. A Jewish State
There are at least three clusters of meanings to the expression ‘a Jewish state’.
The first, and weakest, concerns the identification of the state’s population. Israel is a Jewish State, according to this sense, because a large and stable majority of its population, since its inception, is Jewish. This sense of the Jewishness of the state leaves out the complex relationships between Jews in Israel and outside it, as well as the deep questions of the relationships between national and religious aspects in Judaism. The factual truth of the statement applies irrespective of debates concerning “Who is a Jew’, and has been a constant feature of Israel in the last 53 years. It is worth mentioning that many thought that the Jewish majority will be smaller and may disappear even within the 1967 borders. This has not happened. In fact, the Jewish majority never went lower than 80% throughout Israel’s existence, despite a much higher birth rate among the Arabs in Israel. This trend may not continue. Some scholars have argued that the numbers should be seen differently, and that we should look at them in the area under Israel’s control, i.e. on Israel/Palestine from the sea to the river. Even in that area, Jews are still a slight majority in 2001. But, more important, so long as the notion of ‘two states for two people’ still seems the one preferred by most residents of the region, of both peoples, it makes sense to identify pre-67 Israel as the political entity described as ‘the Jewish state’.
Some argue that the best way to signify this cluster of senses is not ‘the Jewish state’ but ‘The state of the Jews’. Some of these further argue that this is precisely why Herzl called his vision by the latter name. According to this analysis, Herzl’s vision was that the problem of the Jews in Europe was created by the fact they have been a minority everywhere, and the only way the problem could be solved is by establishing a political entity in which they would become the majority. Be this as it may, it should be clear that the mere fact that Jews are a stable majority in a country does not, in itself, suggest that the regime in this country cannot be fully democratic. Most Western democracies are nation states with a large ethnic majority, and in many of them there is a majority of one religious group, and these facts do not threaten, in principle, their democracies.
In fact, democracy seems to suggest that the identity of the large majority of a country’s population should legitimately affect its culture and nature. As we shall see below, democracy is based, in a central and significant way, on taking seriously the actual preferences of the population. In many instances, decisions in democracy are made by a majority-vote. When the majority in a country is Jewish, it is just natural that Jewish interests and concerns will be affirmed, defended and supported. In this sense, Herzl was right: A Jewish majority in Israel is, in itself, an effective guarantee against persecution or genocide of Jews as such by the state in which they live or with its permission or tacit encouragement. Yet we should remember that this ideal of the Jewish state is quite minimalistic, and it applies only to existential concerns shared indeed by all Jews in Israel. This is a very ‘thin’ sense of the Jewish state. A Jewish majority, for example, does not require a dominance or hegemony of Hebrew or of Hebrew culture, or of Israel’s heritage, or of Jewish law. Indeed, this was the center of Ahad Haam’s vicious critique of Herzl’s book. Ahhad haam pointed out that Herzl’s vision does not guarantee that the state of the Jews will have any culture which will be distinctively Jewish, and that it may secure a solution to the problem of the Jews, but not a revival of Judaism.
The relationship between the Jewishness of the state, even in this weak sense, and democracy, gets more complicated in as much as the Jewish majority is not only a description of a stable state of affairs at a given point in time, reflecting a stable state-of-affairs throughout a long period of time. Today, even countries with stable and long standing national majorities are facing serious debates over immigration. Israel is in a much more fragile situation. First, its Jewish majority may not last if Israel does not implement a strict immigration policy welcoming Jews and discouraging and even excluding non-Jews. Secondly, the creation of the Jewish majority in Israel was itself a controversial political process.
I will return to these issues below. At this stage, suffice it to say that the creation and the maintenance of the Jewish majority in Israel raise serious concerns about the interests of non-Jews living in the region.
The second cluster of meanings of ‘a Jewish State’ generates more complex issues. This cluster connects the Jewishness of Israel to the right of Jews to self determination. Under this cluster of meanings, Israel is the state in which the Jewish people exercise their right to political self-determination. In other words, Israel is the nation-state of the Jewish people. This is one of the important senses of the term in Zionist thought and in the Declaration of the Establishment of the State (often misnamed The Declaration of Independence). It seems this is the cluster evoked by President of the Supreme Court Shamgar when he said that the ‘Jewishness’ of Israel did not affect its democratic nature more than did the Frenchness of France. We saw, however, that Shamgar’s statement relied on a central ambiguity in the term ‘nation-state’. In one important sense of the term, s nation-state is merely the state of its body of citizens, since the nation is civic society itself, and ‘nation building’ is the process of strengthening the civic connection between citizens and their states. These citizens may be members of many ethnic, religious and cultural groups. This is the process we know in countries of great mass-immigration. Yet even in these countries, there is a different sense of ‘nation-state’. Under this sense, the nation-state is the result of a deliberate attempt to draw the state’s borders so that they contain most and mainly members of the same ethnic-cultural-religious-national group. When this is the sense of ‘nation-state’ problems of the relationships between the group whose national home the state is and members of different groups may arise. While France and the US may be regarded as paradigmatic cases of neutral nation-states for their civic bodies, it is important to recall that they have a strong cultural assimilationist tendency, reflected among other things in the requirement of one language. The ‘American way of life’ and ‘Frenchness’ are, despite everything, more than just the passport one keeps. Nonetheless, the difficulties that non-English speakers and non-French speakers encounter in the US and France respectively are much less serious than those encountered by ethnic groups living in countries defined as the national homes of a people different from them. When Israel is described as the nation-state of Jews, the implications to the status of its Arab citizens is very different than the issues raised for a Moslem French citizen. For one thing, the Moslem can be described as partaking in Frenchness by being a citizen. The Israeli Arab does not partake in the Jewishness of the state by virtue of his being an Israeli citizen. Shamgar’s analogy would have had more force it he had discussed the ‘Israeli’ nation. But the scholars who do talk about the Israeli nation usually advocate that it will indeed include all Israeli citizens.
Historically, as we saw, there is no doubt that Israel was indeed founded as a nation-state in the second, particularistic sense. It is significant to recall that this conception of Israel is not limited to the Zionist movement. This is the way Israel was conceived of by the 1947 UN resolution, and this is the way most people in the world see it to this very day. Clearly, Israel was not established to provide a political home for the population, which in fact inhabited its territory in 1947-48. So the questions facing us are, taking into account the historical circumstances of the creation of Israel, can it be a democracy? And can it be justified in principle? Can it be just in fact, and has it succeeded in creating a justifiable state? I shall return to all these questions below. At this stage, all I want to do is identify senses of ‘a Jewish state’. The first sense I mentioned above, that of a state with a Jewish majority, is best described by the term ‘The state of the Jews’. The second sense, that of a Jewish nation-state, is best captured by ‘The state of the Jewish people’.
A third cluster of meanings of the Jewishness of the state relates to its religious affiliation. In its strongest meaning, Israel as a Jewish religious state is a halakhic state. Some say that the term ‘a Jewish state’ fits this sense most naturally. The term’ halakhic state’ is deeply controversial, and many even claim that it has no clear meaning. What I am using here as an ‘ideal type’ of a theocracy is thus a stipulative construct, not a real political ideal. In a halakhic state according to this characterization, all political questions are internal religious ones. In such a state, decisions are made according to Jewish law, as it is interpreted by the authoritative interpreters of Jewish law. Moreover, decisions are made by people who are authorized by religion itself, and religious norms are the ones invoked by the citizenry to evaluate the performance of the rulers. In other words, in a state like this, all public debate is truly religious. It is hard, if not impossible, to think how there is a debate within such a state about the nature of religious law itself, or about the nature of Judaism and whether or not it is exhausted by religion. A Jewish state in this strong sense is a theocracy.
I am not sure there is in the modern world a pure theocracy in this sense. But a state may have religious affiliations, which are weaker and nonetheless substantial. These may take the form of incorporating into the legal system some parts of religious law, or of giving limited powers to religious decision-makers. As we shall see, this situation does exist in Israel, based on democratic decisions of the political system itself. Notably, Israel’s laws give religious courts a monopoly over matters of marriage and divorce. In other matters, such as kosher food certification and burial, laws give official powers to specific religious establishments.
I mentioned above that some people stress alleged differences between ‘a Jewish state’, ‘the state of the Jews’ and the ‘state of the Jewish people’. In other contexts, the three expressions are often used as if they are co-extensive, and people move from one to the other without paying attention to these possible differences. Now that these terms are in the law, it is important to leave the ambiguity, and to clarify issues as they arise. This ambiguity has important political functions, and it will be a pity to give them up by enforcing one authoritative interpretation. Similarly, the ambiguity may permit broad agreement on the idea of Israel as a Jewish state in some sense, despite serious disagreements as to the legitimacy of some aspects of this complex idea. For our purposes, however, it is important to emphasize the distinctions between the various clusters of meanings, and the complex relationships between them. Thus, there may be agreement between the advocates of a Jewish nation-state and those who want a Jewish theocracy, that efforts should be made to maintain and strengthen the Jewish majority in Israel. At the same time, they may disagree vehemently about who should be considered ‘Jewish’ for this purpose, what the public sphere in Israel should look like, and what are the implications to political questions such as the borders of Israel’ or the continued settlement in the areas occupied in the 1967 war. Arabs may agree that Israel is and may remain a Jewish state in terms of its cultural identity, but object to seeing it as a nation-state with a claim to a monopoly over all the public and symbolic spheres in the state. It is therefore important to see that the mere support of, or the objection to, the idea of a Jewish state, may not say much about the positions of the parties. We need to see, in each case, what specific positions and arrangements the parties support or reject.
2. Democracy
As we saw regarding the notion of the Jewish state, the characterization of democracy is also very controversial. Unlike the first case, however, the controversy may be described as a movement on a hierarchical spectrum of meanings, starting from a ‘thin’ conception of democracy and moving up to ever ‘richer’ ones. Consequently, we should not talk about ‘democracy’ as an ‘all or nothing’ matter. While some societies are clearly below the mark of democracy, and some are clearly democratic, in many cases it is more fruitful to talk about societies as being ‘more democratic’ or ‘less democratic’ than others. It is also possible and interesting to examine the measure of democracy in a given society over time. Democracy is an ‘ideal type’ of a political regime with rich variation over time and place. The primary question in stipulating a conception of democracy is which questions – theoretical as well as practical – should be discussed in terms of the democratic nature of the state, and which should better be discussed in other terms.
The thinnest conception of democracy, agreed to by all scholars, is the basic principle that the legitimacy of the government is conferred by the consent of the people. Many institutional and structural questions are left open by this characterization. Who is included in ‘the people’? Is democracy direct or is it representative? How are representatives elected? How frequently are elections held? England, the mother of all democracies, gave the right to vote to women only at the beginning of the 20th century, while Switzerland gave them the right to vote only at the end of the century. The fact that women did not vote was a serious flaw in the democracy of these nations. Happily, it was put right. Nonetheless, it does not mandate the conclusion that they only became democracies when this right was granted. The legitimacy of government, even before women were given the vote, was based on the consent of the governed. Often, this conception of democracy is labeled a ‘formal’ democracy, or a democracy of the rules-of-the-game. The crux of democracy under this conception is the set of rules that determine the basic organs of government and the basic mechanisms of decision-making that guarantee the consent of the governed.
Many scholars tend to argue that formal democracies do not deserve the name ‘democracy’. They are willing to describe a regime as a ‘democracy’ only if it includes additional elements, such as a written constitution, a constitutional protection of human rights’ a basic commitment to equality and to social justice, liberalism, or a commitment to deliberation as the source of public decision-making. Indeed, the addition of some or all of these elements will yield a richer characterization of democracy than the one I have suggested above. The argument supporting this broader characterization of democracy usually rests on the claim that the formal conception of democracy is too thin; and that such a regime may often produce arrangements and decisions, which may be blatantly immoral. The critics mention that ‘democracy’ in our world is not a mere descriptive tool of regime taxonomy. It has a very strong emotive and justificatory ring to it. Consequently, they argue, the characterization of democracy should reflect this fact. It should identify a regime that is justifiable, not a formal type of regime that is neutral.
I concede, of course, that ‘democracy’ has a strong emotive ring to it. Furthermore, I believe the characterization of democracy will be deficient if it does not give an account to this emotive ring. Nonetheless, I reject strongly the alleged implication that the characterization of democracy should define it as a just regime, or that it must broaden the characterization of democracy to include ‘non-formal’ elements.
This is because I believe the formal element of basing the legitimacy of a regime on the consent of those ruled by it is an extremely important element, with both theoretical and practical significance. It is important to have a term that will center on this aspect of regimes. This was the consideration that led Plato and Aristotle to use the term ‘democracy’ to describe government by the demos – by the people. True, democracies may generate, and have generated, very bad policies. But so have ‘thick’ democracies. Besides, we can identify additional elements, which may make democracies more valuable and less prone to injustice. In many cases, these elements will limit the democratic nature (in the formal sense) of the regimes. It is better, therefore, to identify these elements in a way other than including them within the very definition of democracy itself.
An additional advantage of the formal, ‘thin’ characterization of democracy is that it is inclusive – it covers all the regimes that have a claim to be called democracies. Any additional element may exclude some of these regimes. England does not have a written constitution, and its constitutional protection of human rights is incomplete and recent. India, the largest democracy in the world, is not very liberal. And the US does not have a firm commitment to social justice. Israel, too, is still struggling with the questions of a constitution and a bill of rights. If we include these elements in an definition of democracy – all these countries may be excluded from the family of democracies. I believe this implication of the broad characterization of democracy should lead us to reject it.
But most important is the fact that the formal element of requiring the consent of the people to legitimate their government is very far from a neutral, incidental feature of democracies, which cannot justify the strong emotive significance of the term. The requirement of consent as the basis of political power indicates that democracy is committed, first and foremost, to humanism. It takes seriously the actual preferences and wishes of the public. It gives individuals the positive liberty and the legal power to participate in the decisions affecting their lives and to choose their leaders. This principle, and its moral significance, are far from being self-evident or trivial. Often, political leaders who lose elections argue that the results are anti-democratic. Often they mean that the public was wrong. It may have been. But democracy is, at least in part, about respecting what the public in fact wants, not what it should have wanted. There is in a democracy a structured deference to the actual wishes of the electorate, giving them priority over the preferences and choices of its philosopher-kings, rich people, priests or noblemen. This deference is a very meaningful choice, and it has never been free of controversy. True, many democracies contain structured elements, which are designed to limit the impact of the populist preferences of the public on specific issues. But such limits, important as they are, should not obscure the basic commitment in a democracy to let the people themselves decide.
I can return now to a point I made above: many of the elements, which are advocated as necessary requirements of democracies, such as liberalism or the protection of human rights, are not mere additions to democracy, making it richer and broader. Often, these elements are a well-designed limitation on the free play of the democratic principle. Many such limitations are in fact justified and necessary. But it will help us keep our thought clear if we see them as independent elements of the regimes in question rather then as a part of the definition of democracy itself.
In Israel, and in other divided countries, there is an additional reason for adopting the thin, formal characterization of democracy. The commitment to democracy is supposed to unite all segments of society. It should be a part of the shared rules of the game. This will be made much more difficult if we add to the definition of democracy notions such as liberalism, which may be alienating to important parts of the population who do not share this world view. We saw that Israel has serious and complex rifts between parts of the population. These rifts mean that there are structured conflicts of interests and preferences between these groups. In such societies it is of special importance to the adoption of rules of the game that will stress a distinction between a shared framework within which political power is controlled and divided, and between the political decisions generated by this political structure – which will often be very controversial. Democracy is one of the central elements of the shared framework, since it emphasizes the equal right of members of the public to participate in the decisions concerning them and their lives. However, if we enrich the characterization of democracy to include questions of values and preferences, we may turn many of the controversies in societies to debates about whether or not it is a democracy. This does not help the commitment to democracy to be a unifying force. An enriched democracy may lose its claim to the allegiance of all segments of the population. As a result, some groups within society may find the idea of democracy itself as excluding and oppressive. Under such circumstances, democracy cannot establish a decision-making framework which will legitimate the government.
It must be stressed that the advocating the adoption of the narrow conception of democracy as rules-of-the-game as a part of the shared framework for thought, discussion and political activity is very different from the attempt to grant formal democracy the halo of necessary, definitional moral justification. The argument does not ignore the fact that respecting the actual preferences of the population may in fact yield terrible, even atrocious results. A society following only formal democracy may very well dominate, oppress or even exterminate its minorities, all in the name of the wishes and preferences and interests of the majority. In other words, saying that a society has effective formal democracy does not say that its policies and practices are just. Yet many criticize the initial move – the adoption of the narrow sense of democracy as a part of the shared political commitment – precisely because of its alleged contribution to the legitimation of regimes which only have a formal democracy.
This is a complex matter. A similar move has often been made against positivistic theories of law, arguing that they generate a tendency of people to obey laws even if these laws are patently unjust. The conclusion of the critics was that it is better to adopt characterizations of law that will make it a definitional matter that all laws are justified, or that, in other words, immoral ‘laws’ are not really laws at all. People do have an obligation to obey the law, claim the critics, but this obligation is only justified if the laws are just. Hence, to buttress the tendency to obey the law, we need to define it so that all laws will indeed be norms that ought to be obeyed.
I cannot enter this fascinating debate here, although it is relevant to our concerns, and I will return to it in Chapter 3 below. Here I shall only say that I accept the fact that formal democracies may generate laws and practices with are blatantly unjust. My preference for adopting the narrow conception of democracy as the shared political framework is in fact strengthened by this awareness. As far as I can see, the misleading and dangerous tendency to think that democracies can do no wrong is encouraged by the rich characterization of democracy, precisely because such democracies claim that they have built-in mechanisms which guarantee against immoral laws and practices. The belief in these mechanisms may thus enhance the tendency to think that such regimes can in fact confer on their actions the moral legitimacy which makes obedience justified. The narrow, formal, conception of democracy explicitly leaves the question of the morality of its products open. It presents the question of the morality of the regime’s actions, and hence of the duty to obey them, as a primary moral and political question. It does not confuse us by presenting these matters as necessary implications of conceptual analysis of our basic concepts. The morality of our institutions does not usually benefit when we present it as a conceptual matter. Thus no major institution of society, be it the form of regime or law, should be characterized, apriori, in a way that presents them as worthy of our obedience and respect.
At the same time, it is also important to note that formal democracy, despite its ‘thinness’, is not completely value-neutral. It has significant moral and institutional implications, in addition to the fact that it reflects humanism and a commitment to the ‘positive liberty’ of individuals. First, there are basic human rights that are required by democracy in its narrow sense: Notably, they include the rights to vote and to be elected, as well as rights to freedom of expression, access to relevant information, and freedom of association to promote political goals. Secondly, democracy involves a structural commitment to equality, at least in the form of the principle that each person has one vote. Without these elements we do not have democracy in its narrowest conception. In other words, even in this conception of democracy there is a structural protection of some human rights. Hence, even in this conception, there may be internal tensions between elements of democracy. Can democracy limit the freedom of expression of anti-democratic forces? Can it ban anti-democratic bodies from participation in its elections? Nonetheless, the narrow conception of democracy does distinguish between tensions which are immanent to the notion of democracy itself, and between tensions and even conflicts between elements of democracy and other things that we cherish and value. The latter may include values such as the wish to protect human rights, or conceptions of the good life such as liberalism, nationality, religion or socialism. In this it is different from richer conceptions of democracy, which present these tensions as well as internal and immanent to democracy itself. I see this difference as an advantage of the theoretical exposition advocated by me. I prefer to talk about tensions and conflicts between elements of democracy and other values to the conflation of all these various values under the emotively charged term ‘democracy’.
Against the background of the discussion of this subject in Israel, I want to mention three elements, which are NOT a part of the conception of democracy, which I am advocating. The first is a commitment to human rights, other than those required by the narrow conception of democracy itself. The second is that conception of the neutral liberal democracy advocated by some of the Western scholars. The third element is the presence of an entrenched constitution, including a Bill of Rights, and judicial review.
According to my analysis, democracies may include an institutional protection of human rights, constitutional or otherwise, and they will tend to include such effective protection more than non-democratic regimes. Indeed, most modern democracies do have constitutions with Bills of Rights. Nonetheless, the absence of such explicit protection should not exclude formal democracies from the family of democracies. Similarly, democracies may well be liberal, and they may even tend to be liberal if they are stable democracies. Nonetheless, a country who exhibits the features of a formal democracy, and has generated, at times, illiberal policies, should not be excluded for that reason from the realm of democracies.
Two important points should be made on the relationships between democracy and human rights. I have already mentioned that even formal democracy requires the effective protection of some human rights, including the rights to vote and be elected, freedom of expression and freedom of political association. For these rights, democracy and human rights are indeed one and the same. Secondly, the incorporation of human rights as a part of the definition of democracy may in fact weaken their force. Typically, we believe that human rights are binding on all regimes, democracies and non-democracies alike. In fact, their power to defeat the preferences of majorities stems precisely from the fact that their validity is NOT derived from the preferences of intelligent judgement of social majorities. Basic human rights, like the right to human dignity and freedom, equality before the law, due process, freedom of religion and conscience, all derive from moral principles that we deem universal. The Universal Declaration of Human Rights was not intended to apply only to democracies. In fact, it is quite clear that protection of human rights is more needed in non-democratic regimes, where the powers of public scrutiny and free press are more limited. This alleged universality of human rights should be an argument against making it a definitional element of just one form of political regime.
Critics may concede that human rights should be binding on all regimes, but that it is nonetheless a defining mark of democracies that they make this commitment a part of their chosen political regime. Indeed, the question whether human rights issues should be seen as internal or external to democracy is primarily a theoretical one. It relates to issues such as clarity of thought and the usefulness of conceptual frameworks and not to the issues of practical political morality themselves. The impact of the choice on practical politics is indirect and indeterminate. I have explained above why I prefer to see human rights as external constraints on democracy and not as internal elements of it. My preference is strengthened by observing the dynamics of human
