1. Background conditions for Democracy and Jewishness
We should recall here that the Jewish nature of the state is not only an element threatening its democracy or making it impossible. The Jewish distinctness of Israel stems from the fact that it has a large Jewish majority, and that it was created in order to permit this majority to exercise its right to self-determination. Diluting the Jewish nature of the state against the wishes of its Jewish majority will not only enhance the democratic nature of Israel by increasing the sense of belonging of its non-Jewish citizens. It may also decrease it, by frustrating an important preference of its majority. Invoking ‘democracy’ itself cannot do the work here. We need to look at the preferences and the aspirations, and to evaluate their legitimacy, their intensity and their relative weight. We should also see whether fulfilling these aspirations merely harms minorities, or whether it infringes their rights in unjustified ways.
One of the sources of the natural strength of European nation-states was the fact that these states were built around a hard core of members of the same national or ethnic group, who were the critical mass of the population in a given territory. In many cases, movements for unification of small states invoked a sense of ethnic identity (as in the cases of Germany and Italy). In other cases, claims for national self determination and statehood were based on the wish to give an ethnic group its own state (see the voluntary disintegration of Czechoslovakia, or the developments of the last decade of the 20th century in Yugoslavia). The initial strong identification between citizens of a given state and members of a single national or ethnic group generated processes that helped maintain the nation-state: members of minority groups either assimilated, or accepted that they were minority groups in a nation state of another people. When the minority group was large and concentrated in some territory, claims of secession often followed. This was especially true if the minority group was situated next to the nation state of its own people (see the German minority in the Sudetes). When the minority group was created by recent immigration – especially across a river or even a sea – the plausible option was assimilation, or a privatized voluntary ethnic association. Nation states are under new challenges everywhere, due to globalization and immigration. The labor market has become extremely mobile. And the gaps in wealth between first and third world countries, as well as the need of first world countries in cheap, young foreign labor, meant that old homogenous nation-states have become multicultural entities. Furthermore, many of the immigrants are unable or unwilling to assimilate, and the host societies are reluctant to let them integrate fully. The result is that demands for equal citizenship, irrespective of origin, religion, language or ethnic identity have become the norms. The aspiration of host countries to assimilate immigration waves is now seen as illegitimate. And some explicitly claim that the host countries should give up their distinct national identity and accept the fact that they are now multicultural states. It is interesting to note that in these countries, the tension is not usually described as one between the distinct culture of the host country and ‘democracy’. Nonetheless, we can easily see how these claims may be presented as based on the implications of democracy to equal citizenship.
In Israel, threats to democracy are not only derived from the presence within it of a large indigenous minority, which sees Israel as a colonialist country built on the demise of its people and as dispossessing them of their land and homeland. Naturally, members of this group do not feel voluntary citizens in Israel, and they do not feel they can be equal citizens in the Jewish state under these circumstances. Democracy is also threatened by anti-democratic tendencies among Jewish groups, mainly religious ones. The ties between Jewish religion and anti-democratic forces stem from two main sources. One is the immanent fact that religion, any religion, claims ultimate validity and supreme authority. The second is the fact that Judaism, like many religions, has an interpretation that is sectarian and separatist in the extreme. This kind of an interpretation lends itself to negation of the claims of equal citizenship to all, which are central to democracy. The first problem, although it is in theory insurmountable, is in fact less important. Religions in the whole world have learned to live with secular political powers and with democracy, and have incorporated into the religious doctrine elements, which permit obedience to the laws of the land. In contemporary Judaism, unfortunately, the sectarian and separatists interpretations find support in the feeling that many have that the world out there is hostile to Judaism and to Jews, so that sectarianism is essential for Jewish survival. The destruction of European Jewry, and the anti-semitic rhetoric often heard from various quarters seems to give further support to this reading of history. This kind of reading of Jewish history and religion make it very difficult to build in Israel a political framework based on partnership and equality with non-Jews, especially Arabs. It also makes it hard for Jews to feel free to integrate fully into Western civilization and its culture, based as these are on Christian sources.
It is therefore not really surprising that the Jewish State needs to attend to prejudice and tendencies to fear and to discriminate against Arabs. Or that Israel is a divided society, where groups of citizens do not feel full members of its polity. Yet it should be acknowledged that this weakness of civic cohesiveness, despite its being easy to understand, does create an ‘overburden’ on the stability of Israeli democracy.
In part, the threats to democracy come from the wish to strengthen and emphasize the Jewish distinctness of Israel. We should now look more attentively at the obstacles standing in the way of implementing this preference. We mentioned a basic one – the preferences, the claims, the interests and the rights of the Arabs within Israel and around it. But the wish to maintain here a state which will continue to be the place where the Jewish people exercises its right to self determination is also affected by many other factors. I will concentrate here on four of them. First is the internal Jewish debate about the nature of Jewishness in general, and the implications of Jewishness to the life and structure of the state. The second is the internal Jewish debate on the justification for maintaining a state with distinctive Jewish affiliations and Jewish substance. The third is a weakness in developing and imparting Jewish cultural substance, which is not easily reducible to religious observation or nationalistic aspirations. And the fourth is tensions between the legitimacy of self-determination and universalist inclinations among some of Israel’s elites. These differences may be summed up in saying that there is an internal debate among Jews about what is the Jewish state, and what measures and policies its maintenance may justify.
It follows, I believe, that the factors threatening democracy in Israel, and the factors shedding doubts on its viability and justification as a Jewish state are both connected to the two main rifts discussed in this book. It is not the case that the Jewish-Arab rift is about the extent to which Israel can be democratic, while the internal Jewish debate is about its being Jewish. Both rifts influence and affect the question of the stability of each of these elements, and the possibility of their effective combination.
1st. Background conditions of Democracy
Studies about conditions conducive to democracy indicate a strong positive relation between it and the level of education and economic growth of societies. An additional feature is the extent to which the country’s elites support democracy and are interested in its success. From the analysis of democracy itself, even if we take the thin conception of democracy (whose adoption I have advocated), the most important implication is the centrality of equal civic affiliation. The demos, the group legitimating the regime, is the state’s citizens. And their affiliation must be equal, irrespective of all religious, national or ethnic differences. The basic democratic principle of the consent of the ruled thus generates both a justification of the regime and a hope for its stability. A minimal equal civic affiliation is a part of the very definition of democracy. The justness and stability of the regime depend also on the enrichment and the thickening of this equal civic affiliation. People living in the same state, ruled by the same government, should in principle feel partnership in the political enterprise. They should feel that their welfare is at the center of the function of the political elites. And that there are important ways in which all groups are a part of that political enterprise. Of course, all societies have difference of opinions, and conflicts of interests abound. These differences are legitimate and important and should not be underscored. At the same time, the legitimacy of the political regime requires that the political framework is shared and accepted by all. It is this general consent that provides the cohesiveness and partnership which may make the laws of the land justifiable to the population as a whole. Democracy will be strong and stable if it gives all those subject to its rule a significant sense of citizenship and membership, and if the citizens’ body, as a whole, undertakes the rules of the game required for its persistence.
His equal civic affiliation must include the political rights to vote and to run for elected office; the right to carry the state’s passport; the right to leave the country and return to it; and the right to stay in it and work within it. The sense of civic affiliation will be stronger if it also includes a sense of equal opportunity and a sense of belonging to the society in question. Equal civic affiliation is not exhausted, however, by equal rights against the state. A stable civic affiliation will only be stable if there is also a sense of equal participation of the various groups in the contribution to society, its development and growth; and in the sharing of the fruits of the shared enterprise. Democracy will be stable if there is a good relationship between the extent to which the political rights are exercised and used, and between the contribution of a group to the main tasks of the society in question. Finally, it is required that all citizens and all group accept the democratic rules-of-the-game, and commit themselves to acting within them, rather then using force or illegal means to undermine and terminate them.
We saw that neither of these requirements is simple in the Israeli context. All Israeli citizens do have political and civil rights irrespective of national or religious origin. The law does not deny or limit the political rights of individuals or groups. Many commentators tend to underestimate the importance of this fact. At the same time, it must be stressed that the civic affiliations of Jews and Arabs are very different, on a number of levels.
The Arabs are an un-assimilating minority living in a state which is defined as Jewish, and thus are less than full members, under all possible descriptions of this Jewishness. This in itself would make their situation different than that of Jewish citizens of Israel. The continuing conflict and its history make the status of Arabs in Israel extremely conflicted and complex. Many of them are not even willing to describe it as a tension between their people and their state. They see the very description of their predicament in these terms in giving the state more legitimacy than they are willing to grant it. They describe themselves as ‘Palestinians in Israel’ rather then as Palestinian citizens of Israel…
Among Jews, too, there is at least one group – the European haredim - large Parts of which are alienated from the state and its socialization agents and processes. The Law of return creates huge difference between Jews and their family members, and between others concerning naturalization and residence in Israel. New immigrants under the Law of Return acquire citizenship immediately and automatically, without the need to demonstrate any bond to the state of Israel or its raison d’etre, or any familiarity with Israeli society, its culture and problems. This fact created a serious gap, at least in the initial stages after immigration, between the involvement and the commitment of new immigrants and those of ‘natives’ of all sorts. In periods of large immigration, as Israel had throughout the 1990’s, this situation may create serious tensions.
Participation in the country’s burdens, in Israel, takes three main forms. First is the mandatory general military service, imposed by law on all residents. Second is a relatively heavy taxation. Third, which has become more pronounced after the breakout of the second uprising, is a permanent threat to one’s personal safety. I have already mentioned that the Arab citizens of Israel do not ordinarily serve in the military. They have also not been offered a substitute ‘civic’ or ‘national’ service of any sort. Their leadership opposes any such arrangement, even if the alternative service allows them to work within their own communities. Most of the haredim in Israel do not join the army as a part of a special arrangement designed to allow them not to disturb their studies of torah. Some of them do serve, usually a shortened service in units connected with religious services and with no connection to combat service of any sort. The participation of the Arab sector in the labor market is significantly lower than this of the non-haredic Jewish sector, mainly due to very low participation rates for women. Furthermore, employment and income opportunities are usually lower in the Arab sector because of lower educational achievements, and due to significant differences in the development of industrial and technological infrastructure in that sector. The haredi Jewish sector is the poorest in Israel’s economy, mainly due to the voluntary decision of most men to prefer torah studies to a serious participation in the labor market. In both the haredi and the Arab sectors, families are much larger than the average in Israel.
We also saw that in Israel, the educational system in fact reflects and even strengthens the rifts and the divisions rather then explicitly seek to diminish them. Most of the Israeli Arabs study, in Arabic, within the Arab sector of the public school system. Arab schools give their students civic education, and seek to prepare them to participation in the labor market. Most of the haredi children live in ‘private’ schools, often financed quite generously by the state. In these schools there is no civic education, and work skills are taught very little, if at all. The Jewish public education system distinguishes between a ‘general’ and a ‘religious’ section. Both of these sections are Zionist, but the separation of the schools creates de-facto segregation between orthodox and non-orthodox Jews in Israel. Many studies suggest that the two sections differ significantly in the way they teach a commitment to democracy and to civic equality. The religious public school section is governed by an autonomous council, and it demands that all teachers and employees in it are in fact orthodox. Orthodox teachers are of course free to teach in the general public schools. In all Jewish schools there is no systematic teaching of Arab culture, other religions, or then history of the conflict. Often, Jewish students do not learn about the developments in the status of Arab citizens within Israel.
The feeling of semi voluntary distance and alienation from the Jewish state and its mainstream institutions is an element shared, for very different reasons, by some Arabs and Hareidim. Nonetheless, the differences between these groups may be greater than the similarities between them. The Arab citizens of Israel combine national and religious talk with invocations of democracy and human rights, and express acceptance of the rule of law and Israel’s institutions. The ultra-religious parties do not a similar commitment, not even on the level of lip-service. Their attitude to democracy and the state’s institutions is at most instrumental, both in their discourse and in their political practices. Both groups claim that the authorities do not grant them the full equality to which they are entitled. On the ground, however, the lot of the ultra orthodox seems much better than that of the Arabs. Arab parties never participated in Israel’s governments, while the hareidim are responsible for many important and influential ministries. In addition, there have been persistent calls that the Arab vote should not be allowed to decide issues such as the referendum of Israel’s borders. While the haredim are intensely disliked by some sectors of Jewish Israeli society, no one ever Raised the possibility of denying their political rights. There is also a major difference in the power of Haredim and Arabs to compete for financial allocations of public money. In fact, in some cases the Arabs benefit from the fact that the haredim manage to pass legislation that benefits them as well as the Arabs.
These phenomena reflect very well the complexities of Israeli life, and the tensions between Jewishness and democracy. It may well be that the challenge of the hareidim to Israeli democracy is stronger and deeper than that of the educated, secularized Arabs. Yet in many ways, the Arabs are seen by many Israelis as a homogenous group, identified by its persistent conflict with Israel. The Hareidim, on the other hand, are clearly a part of the Jewish nation, whose revival is one of the goals and purposes of Israel as a Jewish State. At least so long as there is no stable resolution of the Israeli-Palestinian conflict, this preference for the Jewish hareidim over Israeli Arabs will probably persist.
Israel has not seriously started to cope with the issue of its attitude to various groups within it. Until very recently, the goals of its public education included values such as history and heritage of the Jewish people. Israel is an ideological state, and it trumpets and celebrates its uniqueness as a Jewish state. We saw that the flag, the hymn, the state’s name and symbol all reflect this nature. It celebrates, in addition to religious high-holidays, its Day of Independence, preceded by Memorial Day, and Holocaust Day. All of these are anathema to both Arabs and the hareidim. A State where a quarter of the population (and the parts growing most quickly) feel alienated from its flag and hymn must think creatively of ways to enrich and strengthen the civic affiliation shared by all its citizens. Be this as it may, it seems clear that Israel at present lacks the degree of natural and immediate cohesiveness, which permits a stable existence of a shared democracy.
Israel also suffers from a weakness in the commitment of major groups to democracy and to the shared political framework. More important, there is a convergence between such attitudes and ethnic and religious commitments. All democracies, even the ‘thin’ ones I wish to include in the definition, have a built-in tension between their emphasis on the centrality of individual autonomy and consent and the necessity to defend the shared democratic framework. The values of democracy are, in a way, the normative framework which permits and facilitates the variety of broad freedoms that democracy protects. The democratic framework itself is not supposed to be constantly open to the same challenges, protest, dispute and critique, which are permitted within it. Democracy, especially in a rifted society, cannot be stable if obedience to the decisions of its legal officials is always subject to the compatibility of these decisions with the preferences of all members and groups in society. Participation in the democratic ‘game’ presupposes some acceptance of the rules-of-the-game, including the one imposing a general duty to obey, in principle, the decisions made by its authoritative officials. Expressions against the legitimacy of these decision-making processes (as distinct from criticism of the substance of their decisions), and systematic calls to disobey laws and decisions made through them, thus impose serious threats to the robustness and stability of democracy. Persistent reality of this sort may well lead to the collapse of democracy, and with it to the collapse of the basic understandings underlying the foundation of the state. A democracy with a healthy wish to survive may, and at times must, take steps to defend the democratic framework itself from its enemies. On the other hand, the wish to defend democracy may then generate steps which themselves threaten the stability of democracy, if they involve serious curtailment of the freedom to express opinions, and form associations, to protest a controversial policy. These are persistent questions faced by many democracies. The ways various democratic regime handle these threats is as much a matter of their history as it is a matter of analysis of arguments of political philosophy. Thus measures to protect democracy against challengers are much stronger in Germany after Weimar than they are in the US. And the US after September 11 2001 is very different from all other Western democracies in its willingness to silence opposition and critique.
Freedom of speech
Israel faces these issues persistently. It had a special opportunity to deal with them when Kahane’s party appeared on the scene, with its message of ‘transfer’ of non-Jews; and again when Prime Minister Yitzhak Rabin was assassinated by a young Jewish man invoking religious law. The issue is re-emerging now in a variety of contexts. Some people on the Left refuse to serve in the occupied territories; and some of the leaders of the Arab community have been making statements interpreted by some as support and encouragement to the enemies of the state. At the same time, some ultra-religious groups and leaders make delegitimating statements concerning Parliament and especially Israel’s Supreme Court.
Kahane’s program and Rabin’s murder share a unique feature that is highly relevant to our concerns here: the challenge to the legitimacy of the decision-making processes of democracy itself was not based on a competing, anti-democratic political vision, but on Jewish religion. The implication was that anyone who was truly Jewish had to accept the validity of the grounds of the challenge. Israel responded to Kahane’s challenge by passing a law banning anti-democratic parties, which was then applied to ban his Kach party. Rabin’s murder has generated a more mixed response. The murderer himself was convicted and sentenced to life imprisonment. In an unprecedented and controversial step, a law was passed that limited the power of the President to commute or pardon a person convicted of the murder of a Prime minister. Initially, at the first period after the murder, the Attorney general stepped up prosecution against inciting statements. The feeling was that the inflammatory tones of the political debate before the assassination contributed to its taking place. This policy was controversial from the very beginning, and was undermined by limiting interpretations of incitement laws. The government’s efforts to introduce legislation that might make it easier to prosecute for incitement have been defeated by an interesting coalition of liberal Jews, Arabs and the ultra-religious…
I cannot go into the complex and fascinating debate concerning the proper attitude of the law to incitement. For my purposes here, let me make a few observations. We should realize that this is a question on which people with deep commitment to democracy and freedom of expression differ. I do not believe any of these positions can be dismissed as inconsistent with such commitments. While I understand the position of those who advocate legal action against inciters, and accept it as legitimate, I think it is in most cases misguided. It is quite understandable that the legal system reacted to Rabin’s assassination as it did. Once the event happened, it was very easy to see the writing on the wall. The wish not to cooperate in creating an atmosphere in which such a murder could recur was clear. Nonetheless, developments since then reinforce what had been said by many at the time. The legal system is not a very effective tool for dealing with political expression, even when it is inflammatory, pernicious, infuriating or inciting. This is especially true when these statements are made against the background of a major political controversy, where both sides feel the stakes are extremely high. The limits of public debate in such cases are very important, but they are best enforced by informal means stopping short of criminal prosecutions. There are many arguments for this position, all rehearsed at great length in the literature. I want to stress two points.
First, the use of criminal prosecutions to combat inciting political speech is often ineffective and even counter-productive because of the institutional features of law. Law is part of the shared framework of states, especially in democracies. It reflects the decisions made by authoritative officials within their powers. As such, legal institutions, and especially the courts, are supposed to be a part of the shared political framework. All individuals and groups within the state should feel obligated by the ideal of the Rule of Law and protected by the legal and judicial systems. Criminal prosecution against political statements within the context of an intense public debate will usually seem to supporters of the views expressed as persecution for political reasons and an attempted silencing. The trial is very likely to increase the rifts and the alienation felt by some, instead of giving all the feeling that justice was done in the name of democracy. Such processes may therefore weaken the perception of lawyers in the civil service and of the courts as neutral arbiters of shared values.
If the speaker is convicted, he is likely to be seen as a martyr by his supporters. If he is acquitted, on the other hand, the verdict is likely to be seen as legitimating the speech rather then simply saying that it was not beyond the pale of legality, when this pale is broadly defined to allow for maximum freedom of speech. Since the verdict is unlikely to end the debate or even modify it significantly, it may be better to try other avenues of regulation and control.
Secondly, and related, criminal prosecution is likely to generate a serious charge of double standards and of singling out. When such expressions are rare – we do not need to use the law to deal with them. When they are prevalent, it is difficult to justify picking up one rather than many others. And no one wants to fill their prisons with those whose only crime is the expression of statements that may seem to some incitement.
However, this is NOT an argument against all laws prohibiting incitement, or even for a general decision not to invoke them. There are times in which unhindered public expression is an important part of an atmosphere that may indeed lead to the dangerous weakening of democratic constraints. If non-legal means fail to achieve proper regulation, legal prosecutions should not be counted out. Nonetheless, it must also be pointed out that in such circumstances criminal prosecutions may not be able to stop the tide. One may use the law, but one should not hope that the law, alone, could deal with the undercurrents that feed the social and political processes under consideration.
Looking at Israel’s record in this respect, the picture seems mixed and interesting. Israel has been struggling with these issues for a long time, and the challenges have been coming from many quarters. On the whole, the level of freedom of expression of dissenting views in Israel is very high. It is always possible to fault specific decisions of the Attorney-General, for both over-prosecution and under-prosecution. Similarly, one may criticize the details and the argumentation in the major decisions made by the courts in this area. I do not believe that massive changes in the policy of prosecution, or in judicial decisions, is what will promote the strength and stability of Israeli democracy.
Banning of Parties
A more interesting measure justified by some to protect democracy from its enemies is that of banning anti-democratic parties. I described the situation in Israel in this respect in Chapter II. This legal and political situation raises two questions concerning tensions between Jewishness and democracy, one relating to the external challenge of the legitimacy of the Jewishness of the state, the other to the internal Jewish debate concerning the legitimacy of a Jewish theocracy.
We saw that Israeli law bans both anti-democratic parties and those parties, which deny ‘Israel as the home of the Jewish people’. The judicial opinions are ambiguous. On the one hand, it seems that a party, which will explicitly declare that it seeks to change Israel, even if this is done in peaceful ways, so that it ceases to be a Jewish state in any way, will have to be banned. On the other hand, the court has affirmed that advocating Israel as a ‘state of all its citizens’ does not, in itself, meet that test, since all democracies are 'of all their citizens'. Leaving aside for a moment the interpretation of the law and the position of the court, is the latter ground of exclusion consistent with democracy? A related though distinct question is that of the legitimacy of requiring that certain political decisions within Israel be made by ‘a Jewish majority’. When we had direct elections of the Prime minister, it was very important for Labor candidates to be able to claim such a majority for their negotiations on Israel’s borders and agreements with her neighbors.
I remind the reader that I approach the question of the democratic legitimacy of banning a party whose platform includes the denial of Israel as a Jewish state from the conclusion that a Jewish state in Israel is consistent with democracy and justifiable. Nonetheless I draw a distinction between an anti-democratic party and a party whose platform is the attempt to change the nature of Israel so that it ceases to function as the nation-state of the Jewish people. So long as the party seeking to implement this change is truly committed to democracy, and to giving up violent means of achieving its goals – democracy is not consistent with the denial of people’s right to re-think the self-definition of their country in terms of its affiliation with a particularistic vision of the good life. Jews may legitimately wish to live in a state in which they form a majority, and whose public culture is theirs. But this does not entail a permission to prohibit others from trying to seek to persuade their fellow-citizens that this goal should be replaced by a neutral, liberal state. As long as the majority wants Israel to be a Jewish state, it is legitimate for the state to maintain this public character (to the extent that the rights of others are not violated). Since Israel is the only place in the world in which Jews enjoy self-determination, it is even legitimate for Jews in Israel to take steps to make such a change harder than a ‘regular’ decision concerning a policy. Nonetheless, if Jews lose their majority, or if some groups of Jews join the non-Jews in seeking to abolish the Jewishness of the state – Israel will indeed have to make a choice between its Jewish nature and its democratic regime.
Usually, the conflicts between Jewishness and democracy in Israel in terms of the eligibility of parties to participate in elections are seen as related to the rights of non-Jews, mainly the political rights of Arabs. We should see that a related tension exists within the internal Jewish rift. We saw in Chapter I that, theocracy and democracy are inconsistent. How should a democracy treat parties who explicitly seek to create a theocracy in Israel? The question becomes even more complicated when the same parties are not democratic in their structure, and when their adherents follow almost blindly the decisions and calls of their religious leaders. In at least some cases, these parties also conduct systematic de-legitimation campaigns against the central organs of the state, especially the Supreme Court, which are faulted precisely because they do not follow the dictates of Jewish law. Israel’s Parties Act of 1992 did not require parties to be democratic. This controversial decision was made in order not to exclude religious parties, who determine their political positions on the basis of religious verdicts by the sages. Some argue that this decision does not grant Israeli democracy the protection it needs against theocratic tendencies. Others claim, on the other hand, that any other decision would have undermined Israeli democracy in serious ways, since it would not have allowed large numbers of citizens vote for those who they feel represent them best. I believe the balance struck by Israel’s legislature is both democratic and wise. The ultra religious parties in Israel follow the democratic rules of the game, and it is much better to contain the large religious constituency within democracy than to outlaw it. It is notable that there is also a Moslem fundamentalist group in Israel. The more extreme part of this movement does not participate in Israel’s elections, but another part does.
The issue of the ultimate source of authority accepted by religious people and parties is more troubling and basic. In one sense, the conflict here is immanent and necessary: any serious religious person will give his religious norms a higher place than any norm established by human political authority. However, different religions (and different streams within religions) find ways of accommodating these tensions so as to permit believers to be both members of their religious communities and citizens of their states. States, too, find ways of permitting their citizens to be religious by respecting the rights to both freedom of and freedom from religion. Many European countries have ‘religious’ parties, which have functioned long and well within democracy. So despite appearances, the question is not one of principle, but one of political realities.
In fact, the platforms of the religious or the ultra religious parties do not specify what they mean by ‘a halakhic state’. Neither of these parties ever suggested that laws in Israel should be enacted in any other way but by Knesset legislation. Kach did propose denying non-Jews their political rights, and was banned for that reason. Kahane also declared that the Torah was superior to these acts, and expressed a willingness and an intention to dismantle democratic structures if he came to a position of influence. Other religious parties do not say such blatant things, but it is not at all clear what they would do if they ever came to power in Israel. It seems highly unlikely that they will abolish democratic elections, or that they will be able to restructure the organs of government.
The de-legitimation of government by some religious parties and spokespersons when the decisions of the government or the courts are perceived as inconsistent with religious law is indeed problematic. We should recall that many of the moves against Rabin’s government and the Oslo process were based on certain interpretations of Jewish religious law, which in fact claimed that no Israeli government had the permission to give parts of Eretz Yisrael to non-Jews. In addition, Rabin’s murderer explicitly invoked Jewish religious law as permitting, even demanding, the assassination. The potential for anti-democratic sentiments based on radical Jewish fundamentalism was therefore materialized in this particular and dramatic case.
Nonetheless, the picture is complex. From within the Jewish orthodox community there were many voices, who deny these interpretations of Jewish law, and in particular the permission to assassinate Rabin. Some leaders of the religious Zionist camp even called for an internal reprimand of religious leaders who were not careful enough to clarify that the assassination was against Jewish law. This fact illustrates that while a religious person is committed, by definition, to the superiority of religious law, religious leaders may find creative ways in which to mitigate the tensions. All of these ways must be based on religious law itself, but there have been religious leaders in modern Israel who have explicitly ‘ruled’ that religious law does not aspire to decide questions of detailed policy, and that these should be made by the people’s lay leaders. Many have pointed out the analogy between these different interpretations of Jewish law and its scope on the one hand, and the different interpretations of the limits of law given in state jurisprudence. In both legal traditions there are those who argue that the law covers the whole realm of human affairs, whereas others declare that the role of the law as such may be limited, with some powers and responsibilities granted to the jurisdiction of other decision-makers. In political terms, those who advocate the narrower conception of Jewish law argue that Jewish law itself requires the legitimation of the people’s elected organs.
This complexity suggests that the law requiring the ban of anti-democratic parties should not necessarily exclude all religious parties. It is not sufficient to say that religious parties must, by definition, oppose the legitimacy of the elected representative state organs. The threat of inconsistency is indeed immanent, but it is not inevitable. At the same time, we should acknowledge that there may be a situation in which a religious person may be called upon, by his religious convictions, to resist the laws and the commands of his legitimate political leaders. More important, this requirement to disobey may be based not only on religious principles reflecting universal humanistic values. It may also be based on particular interpretations of the alleged implications of Jewish law, such as the prohibition to give away parts of Eretz Yisrael to aliens.
Against this background it is important to recall that the only party banned to-date for inconsistency with democracy was Kahane’s Kack party, which recommended that the political rights of non-Jews in Israel should be curtailed. Both the political and the legal system agree that democracy should seek to be very tolerant towards political associations, including those committed to Jewish law. It must be stressed that this tolerance is the consequence of the democratic nature of Israel and not of its Jewishness. Until now, toleration was shown both towards Arab parties with national aspirations and towards Jewish religious parties with religious programs. However, an important difference may be emerging, at least on the level of freedom of expression. While there was a lot of criticism against radical expressions of ultra orthodox leaders against state authorities, especially the Supreme Court, and secular politicians – no legal action had been taken. Radical expressions made by Arab leaders, interpreted by some as identification with Israel’s enemies, have led to the prosecution of MP Azmi Bshara, and may lead to renewed attempts to ban Arab parties whose platforms may credibly be interpreted in the same way.
I believe this state of affairs is justified. Kahane’s party did stand out in ways that justified, at the time, its special treatment. His political messages were not only extreme and blatant. He also took the position that violence against what he considered enemies of Jews was justified. He systematically sent his followers to interrupt political meetings of his opponents, and encouraged and publicly congratulated those who committed terrorist activities against Arabs. All other parties in Israel, including all the Jewish religious parties, explicitly and regularly commit themselves to abstain from using force, especially threats to life, as tools in the political struggle. The asymmetry between Jewish and Arab political leaders exists here as well. Leaders of both types of parties may at times refrain from condemning the use of violence. At times they even express some sympathy and support with those using force in promoting their political goals. While there was criticism against right-wing political leaders who supported the members of the ‘Jewish underground’, no one considered prosecuting them or banning their parties. This is because the Jewish underground did not pose a threat to the security of the state. It challenged its monopoly over force and its ideal of legality. Arab leaders supporting Hizbollah, on the other hand, and expressing joy at its victory over Israel, are seen as threatening the state itself.
I still believe that the danger to democracy posed by the banning of political parties is very great. It requires that we should not usually take this radical step based solely on the inconsistency, in principle, between democracy and the party’s platform.
To ban a party we need a ‘something extra’, such as the use of force or at least the legitimation of such use. In the circumstances of Israel, it is right to allow religious parties to participate in the political process. First, their platforms are ambiguous enough to allow consistency with democracy. Secondly, their participation in the political game has been well within the rules of the game. Most importantly, any other decision would go far beyond the desirable effect of excluding a marginal, violent element from the legitimacy of the political process. In contemporary Israel, an exclusion of religious parties will create a feeling of alienation and distance among a very large population, which is fully committed to life in the country and to work promoting its welfare. This very result may have a distinctly anti-democratic effect on Israel’s political life.