Ted BelmanThe author is a retired attorney and the editor of Israpundit. In 2009 he made aliya and is now living in Jerusalem.
PM Netanyahu has made it clearer than ever, that the PA must recognize “Israel as the national homeland of the Jewish People.” But Israel must decide how Jewish it wants to be.
Most Israeli Jews embrace the mantra that Israel should be both democratic and Jewish but pay little attention to whether the two ideas are compatible. The left in Israel say that being democratic should not be compromised and Israel’s High Court agrees with it. The Right in Israel think otherwise, that being Jewish should take precedence over being democratic where the two are in conflict and they want the Knesset to pass the necessary laws to make it so.
Israel’s Justice Minister, Tziporah Livni, recently said to “those who want to claim that the power of the majority in the Knesset is greater than the power ?of the courts,” that “[The] Knesset operates according to the principle of the majority, but the job of the Supreme Court is to ensure that the Knesset abides by the values of justice, and therefore, one needs to defend it.”
It is both embarrassing and harmful that our Justice Minister should say such a thing. The job of the courts is to uphold the law and the role of the Knesset is to make the law. Presently the Courts are empowered to abide by the values of justice by virtue of Israel’s Basic Law on Human Dignity and Liberty which provides, inter alia, “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”
The Judges have held that being democratic trumps being Jewish without any legislative authority to do so. The Knesset has the power to say otherwise, making the maintenance of Israel’s Jewish character a higher value than protecting “human dignity”.
Paul Eidelberg in his very important book, "Jewish Statesmanship" argues for the latter.
“Contrary to the expectations of Jewish politicians and intellectuals who, out of fear of anti-Semitism, mindlessly portray Israel as a democracy so as to endow it (and themselves) with legitimacy and respectability, it is precisely this lack of Jewish national authenticity – this adulation of decayed democratic values – that underlies the international contempt for Israel.”
Prof. Eidelberg argues that Western normless democracy is inferior to Judaism.... “little more than a random aggregation of individuals and groups pursuing their own aims and interests.”
He characterizes this contemporary democracy as upholding “indiscriminate egalitarianism and unrestrained libertarianism.” Israel’s embrace, without question, of this form of contemporary democracy has lead to Arab Israelis who are PLO surrogates, and thus, enemies of Israel, being elected to the Knesset. It also leads, among other things, to the PLO being permitted their own press in Jerusalem, where they mightily contribute to anti-Israel propaganda and incitement. In other words, this slavish adherence to these contemporary democratic values threatens not only the character of the Jewish state, but its very existence.
Instead, he argues that Israel’s statesmen should emphasize Israel’s raison d’etre, as a Jewish State, and that this necessitates that democracy must be assimilated to Judaism. It means that an authentic Jewish Commonwealth should embrace the supremacy of Torah and not of democracy.
The Left in Israel and around the world considers this to be a sacrilege, at least for Israel, while at the same time, it recognizes that democracy must be accommodated to Islam and Arab culture in the Arab states and even in the U.:S. and Europe.
Prof. Eidelberg argues that Western normless democracy is inferior to Judaism. Such democracy is “little more than a random aggregation of individuals and groups pursuing their own aims and interests.” The result, he argues, is “eccentric pluralism and multiculturalism, fortified by the doctrine of moral and cultural relativism that dominates every level of education in the West. Lacking in contemporary democracy are not only unifying norms of human conduct, but any rational basis for national loyalty. Being normless, contemporary democracy denies the existence of universally valid standards by which to determine whether the way of life of one individual, group or nation, is intrinsically superior to that of another – superior in the sense of being more conducive to human excellence or to domestic and international harmony.
“In contrast, Judaism is a nationality and a prescribed way of life.”
He goes on to describe the conceptual differences between Judaism and contemporary democracy, noting that Judaism has a different conception for democracy (replacing the will of the majority with the considered judgment of the majority subject to the Torah.), freedom (freedom to serve a higher purpose rather than freedom to do what you want) and equality (everyone’s life is equal to another’s, but their obligations may vary, i.e., more is expected of a learned man than an ignoramus).
The Left worries that Israel would become a “theocracy”. By this, they probably mean a state ruled by rabbis. If so, then Israel could not be a theocracy, because in Judaism, the rabbis don’t rule. “There is no Church in Judaism, neither theologically, since there is no mediation between G-d and the individual Jew, nor institutionally, since there is no ecclesiastical hierarchy. But, if ‘theocracy’ means the rule of G-d, then Judaism is theocratic, for G-d is the ultimate source of law and authority.” So, what does this mean operationally?
In Judaism, “only publicly tested scholarship can lay claim to any validity regarding the laws of Torah.” Thus, scholarship is the highest value of Judaism and any and all Jews can pursue it. A Jewish Israel would be ruled by the most learned people in the Knesset and in the courts, much the same way as it is in Western democracies, but with the added caveat that they are all subservient to the Torah.
Jewish law has developed and governed the Jewish people for thousands of years. It consists of laws between man and man (mishpatim) and laws between man and G-d (hukim). The former are based solely on reason and thus must be interpreted or administered to reflect new factors. The secularist need not worry about mishpatim. As for hukim, that’s between man and G-d. Since the secularists have no fear of G-d, they need not worry about hukim, either.
Eidelberg: “Strange as it may seem, secular Zionists in the pre-state period recognized that Israel’s national renaissance and the rebirth of its national consciousness required the restoration of Jewish Civil Law, otherwise known as mishpatim. As early as 1909 they declared:
“Our law is one of the most valuable assets of our national culture and a unifying force [among Jews] throughout the world. The Jewish People have developed and maintained a remarkable system of law whose foundations were laid at the dawn of our national existence: hundreds of generations have toiled over it, perfected it and adorned it, and even today, it retains its power to renew its youth and to develop in a manner appropriate to the outlook of our time. During the thousands of years of the existence of our nation, this law was influenced by many material and spiritual factors. It absorbed religious and ethical concepts; it reflected cultural, economic and social values; and it can still faithfully reflect the life of the people throughout the future.”
Unfortunately, over the last century, Israel has moved away from the primacy of Jewish law to embrace the law as it exists in the Western democracies. As Prof. Eidelberg and many others points out, this represents a greater existential threat to Judaism and to Israel than do the Arabs:
“Severed from its own laws and constitutional history, a country’s political, economic and social history will be largely unintelligible. Its legal heritage will cease to have practical relevance. Fewer and fewer people will understand their past, the way their forefathers related to each other in daily life, the conditions under which they lived, their way of thinking; without such knowledge, Israel will forget its world historical mission.”
This loss of mission leaves Israel defenseless before the onslaught of the Muslim mission to recover all the lands of Palestine. Rather than pursue our rights to the Biblical land of Israel, which are both historical and religious in nature, we abandon such rights and only pursue an illusory peace. We hear a great deal from the governments of Israel and the USA about protecting our security, but nothing about protecting our rights to the land. It’s as if we didn’t have any rights.
The peace process should not be a contest between their rights to the land and our right to security as enshrined in UN Resolution 242, but between our rights and their rights. The more we assert our Jewish rights to the land, the more support we will have for our cause. We could then argue that truth and justice are on our side. As it is, by default, the world considers that we are occupying Palestinian land and therefore must give it back. With Jewish leadership, this would change.
The notion that religious law is in conflict with democracy is not well founded or well understood. Religious law, mishpateem, laws between man and man, reflect Jewish jurisprudence developed over thousands of years. As such, it reflects our values which in the main, come from the Torah and the Tanach. Democracy on the other hand, originally meant rule by the people. Nowhere was democracy synonomous with democratic values. Since then it has evolved to embrace certain values, particularly after the enlightenment. These values share much in common with Jewish values, but also differ in many respects. It is wrong to say that democratic values are superior to Jewish values. They have only been around and tested for 400 years and have not always passed the test.
One can argue that democracy means being ruled by man, whereas Judaism accepts G-d’s Law as as the ruling authority. It is for man to interpret it and apply it.