Israel has long identified as a Jewish and democratic state (or democratic and Jewish, depending on one’s preferences). It is a point of distinction and pride, and notwithstanding that the definitions occasionally collide and sometimes co-exist uneasily, it is an admirable aspiration. They are certainly not incompatible although care should be taken to fully understand the areas of tension. The sources of law of each are different. A Jewish state contains within it some element of religious coercion even as a democratic state contains within it even a larger element of secular coercion.
A key societal debate is the question of which definition will prevail in case of conflict: will Israel’s Jewishness be whittled down in order to accommodate its democratic yearnings or will some principles of democracy be minimized in order to maintain its Jewishness? This is a worthy debate that is almost never had.
In fact, it is assumed by the elitists that democracy is the greater value. Their desire is that Israel be Jewish but not too Jewish, Jewish enough to distinguish itself from the rest of the world but not too Jewish that the practices, ideals and true values of the Torah should be incorporated in the governance of the State except in some loose, platitudinous way. In other words, Jewish in name but not in fact. Great care is taken that the “Jewish” part of the equation does not dominate and encroach on the “democratic” part, and that is a persistent interest and endeavor of the High Court. The State’s Jewishness, and its effect on the citizenry, are constantly measured.
It is the “democratic” element that is rarely assessed, and that bears some analysis.
We should be mindful of Winston Churchill’s aphorism that “democracy is the worst form of Government except for all those other forms that have been tried from time to time.” Nevertheless, clichés aside, it is certainly true that we are subject to “rule (kratos) of the people (demos)” in some form. The repeated elections foster the illusion that the people are ruling when in fact we are just voting, not ruling. The elections are usually inconclusive and there is no guarantee that the party we vote for will maintain its platform or principles once the election has passed. (Ariel Sharon’s “the fate of Netzarim is the fate of Tel Aviv” is only the most egregious example of a campaign promise not just violated –that always happens – but literally turned on its head.) It is merely being pointed out, without commenting on the merits, that despite Prime Minister Netanyahu’s campaign assertion that the other parties similar in ideology to his “will form a coalition with Lapid,” to date he is the only prime minister to actually “form a coalition with Lapid,” something he did in 2013. Again, this is not a comment on the merits, just on the facts.
It is also true that people’s patience for democracy wavers with the results. The ubiquitous protests against Prime Minister Netanyahu always call him a “threat” to democracy, perhaps unmindful, certainly unappreciative, of the fact that the demos keeps returning him to power. That is democracy, like it or not. Which is not to say that such a result is actually democratic, for the reality is that because of the vagaries of the parliamentary system of government, the Likud ruling party in the last election received less than 30% of the vote. That means that more than 70% of Israelis preferred someone else as prime minister, one reason that fuels the endless demonstrations.
The more important breach of democratic norms occurs in the disproportionate power wielded by the judicial branch of government. The power of the Attorney-General is almost unbridled. He and he alone can decide whom to prosecute and for what crimes, which ministers can serve in the Cabinet, which laws should be passed by the Knesset and which laws he will overrule and many other vital aspects of governance. Proposed Knesset legislation is often quashed without a vote being taken for fear that the law in question will not pass muster with the AG, who after all is unelected to his position. He sits in judgment of Cabinet decisions and Knesset legislation. That is undemocratic.
If the real source of power is unelected and irremovable, then democracy becomes a cliché and not a reality. On some level, it makes these incessant elections superfluous. We would be better off randomly choosing 120 teudot zehut numbers to serve in the Knesset and voting on who should be the Attorney-General as the kratos – the real rule and source of authority – rests with him. That is undemocratic.
Ditto the imbalanced power of the Supreme Court that rules Knesset laws unconstitutional without there being a formal constitution. Those are the laws that are passed by the people’s house, the one true element of pure democracy. But the people’s house has been neutered. The unlimited standing rules give almost immediate access to the Court to anyone with a grievance. It allows the Court to sit in judgment of military decisions, budget issues, traffic patterns, matters of halacha, Knesset legislation, political appointments and a host of other matters not generally within the purview of a nation’s highest court. It is also unelected and for the most part, despite efforts to reform it, its members still have undue influence in appointing their successors. Politicians who question this setup often find themselves under investigation. That has stifled reform efforts. Prosecution becomes persecution when it lasts for years and years and is applied capriciously. There are no checks and balances. Power is in the hands of the unelected. The people get to vote again and again –but nothing changes. This too is undemocratic.
For all the fear on the left of the Jewish state becoming too Jewish, there is not enough attention paid to the democracy becoming undemocratic. The ease with which individual and civil liberties were stifled in the past year in many democracies across the world, including in Israel, is actually mind-blowing, frightening in its scope and implications. Destroyed businesses, lost jobs and income, shuttered schools and shuls, troubled homes and children, home confinement and inability to travel all came from the heavy hand of government – all in the name of safety and all with uncertain results, as the latest literature confirms. Places without Draconian lockdowns fared as well or even better than places that drastically curbed their citizens’ freedom of movement. All the while, the political class largely did not feel itself bound by these same regulations, routinely took liberties, and when caught apologized profusely but without real consequence.
It is as if it is enough to extol “democracy” without actually being one, just like it is enough to declare we are a Jewish state without actually being one. It was Ahad Haam who first pointed out the difference between a Jewish state and a state of Jews. The latter is a refuge; the former is the fulfillment of the prophetic vision. How then do we ensure Israel’s success as a Jewish and democratic state?
Power must be restored to the people, first by passing the Override Law that limits the Supreme Court’s review of Knesset legislation. Second, the jurisdiction of the Supreme Court must be rigorously defined and unlimited standing curtailed. Not everyone with a grievance should have access to the highest court in the land but only those with “cases and controversies,” people directly affected by legislation or an official act and not just those who are offended by something. Third, the existence of both an Attorney General and a Minister of Justice is redundant and, under present conditions, just enables the mischief of the former – whoever he or she might be – in the form of unchecked pronouncements and power grabs. If he is to be the most powerful person in the land, then let the people vote on him.
Israel’s definition as a Jewish state also needs to be reinforced. With fundamentals of Judaism under assault in Israel – the sanctity of Shabbat and the definition of Jewish identity are at the top of the list – Israel is becoming less and less a Jewish state even as it is becoming less and less a democracy. Shabbat must be observed in public as that is an essential definition of Jewishness. All organs that have a state imprimatur rest on Shabbat. Certainly, a government that closed stores and malls for two months for health reasons of dubious validity can close malls and stores every Shabbat for spiritual reasons of proven validity. What people do in private should remain private, the province of each person, nor should the state restrict anyone’s public enjoyments. Those are matters of conscience.
Matters of Jewish status must, of course, be controlled by Torah, not secular, authorities, as those are based on the Torah and not on legislation or court rulings. And a Jewish state – and not just a State of Jews – would have delayed the start of summer time until two days after the Pesach seder and not two days before it. (Whose idea was that?)
Above all, a Jewish state fulfills G-d’s declaration that “This nation, I created for Me; it will relate My praise” (Yeshayahu 43:21, this week’s haftarah). It evaluates each deed, legislation and diplomatic venture on the basis of its furtherance of G-d’s praise. It elevates above all the purpose of life as the essential objective of statecraft rather than just revel in the appurtenances of life. Certainly this involves respect for Torah study and observance of mitzvot but also care of its neediest citizens, humanitarian assistance to others, the development of technology that benefits all of mankind, and an effective military that focuses exclusively on defense and not at all on social engineering.
It is not that Israel is neither Jewish nor democratic today. Perish the thought. It is that both definitions can be enhanced in ways that better the lives of our citizens in all spheres and bring glory to the Creator who has afforded us, after almost two millennia of exile, this wonderful opportunity to reclaim our sovereignty, assert our uniqueness, and perfect the world according to His prescriptions.
It is true that Israel does not have a formal constitution but it does have basic laws, which are quasi-constitutional (hence, the term “basic law”). This was a compromise between those who wanted a constitution, those who did not (in particular Ben-Gurion, who wanted to be able to do as he pleased), and those who wanted the Torah declared the constitution.
As for democracy, as noted it can also be dictatorial. It can even be totalitarian. The Nazis came to power democratically and ruled with the overwhelming support of the German people (thus the generals waited until 1944 to attempt a coup). Madison & Co. wanted a republic. That is to say, a democracy with limitations.
Of course, as with everything else, it depends on whose ox is gored. In the US there are renewed calls from the Left to pack the Court because its composition does not suit them. The right wanted to impeach Earl Warren. As noted in Megillat Taanit, Shimon ben Shetach did not condemn the institution when the Sadduccees took over. He worked hard until they were replaced. This is the task of the coming generation – to turn the Bagatz into the Sanhedrin we pray to be reinstated.
I remember learning when I passed the Israeli Bar Exam that there is no technical difference between a Basic Law and any other law. Even a Basic Law can be changed by a simple majority vote. Thus, the Court’s decision to elevate Basic Laws is itself undemocratic.