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Israel: Religion and Society

Pluralism in Israel:
From Covenant to Social Compact

Daniel J. Elazar

Democratic Consent and its Contradictions

How does a democracy resolve its contradictions? Without confronting this question it is difficult to consider the problem of pluarlism, especially in Israel.

Let me start by stipulating two points. One, that a modern democratic polity rests on the consent of its citizens and must, if it is to be a democratic polity. Indeed, as we have seen very recently in Eastern Europe, any kind of modern polity has to have a sufficient consent of its citizens for its regime to survive.

Second, let me also stipulate that there are inevitably contradictions, that there are problems in governing any polity, no matter how democratic, that are problems for a democratic theory. Without considering the special situation of Israel, we have at least three "normal" contradictions. First, we have issues of human nature, namely that there is some need for the possibility of coercion to keep civil society in order. Second, we have issues of safety, or security, which at some point necessitate restrictions on the freedom of individuals. This is a problem that market economists face as well. However efficient the market, not everybody perceives their self-interest rightly, nor is everybody willing to abide by the rules. The same thing is true in democratic states. However far one might get with voluntary cooperation on the part of 90 percent or more of the population, there will be some who will not play by the rules and whom the 90 percent must be able to coerce, at least in the hope that the threat of coercion will keep them in line even without its use.

The third normal contradiction is not so much a contradiction as the fact that democracy has two dimensions. Democracy is self-government and democracy, certainly modern democracy emphasizes the protection of individual rights. While this is not necessarily a contradiction, it does mean that there are two faces of democracy that have to be considered. To think of democracy only as the latter, as has frequently become the case with contemporary democratic theorists is, it seems to me, problematic.

In addition, we have the special contradictions which Israeli democracy faces. One is the contradictions that arise from its being a state of Jews that seeks in some way to be a Jewish state and must confront Judaism. A second is the fact that it is a state that has to confront a situation of two peoples claiming the same land, each of whose claims are fundamentally exclusive, even if one people, and now maybe both have reached a position where most of them recognize their inability to carry out that fundamentally exclusivist claim in practice. I would like to discuss both these sets of contradictions and then talk about ways in which we might start an exploration as to how to build a political philosophy to deal with them.

With regard to the normal contradictions, it seems that the twentieth century has learned a lesson from the experiences of the nineteenth century, that every society is ultimately a civil society. The nineteenth century view that "society" was the comprehensive category, somehow embracing government but able to exist apart from it or beyond its scope, has turned out to be incorrect. Today, we are more prepared to go back to pre-nineteenth century theories of one kind or another -- that every society is inevitably a polity or a civil society. I make a distinction between polity and civil society here because in polities, in the original sense of the term, there was no distinction between the governmental and the social, that a proper polity was a seamless web. (This is the understanding in classic Greek thought, whether it was the case in practice in certain Greek cities is a different question.)

The idea of civil society emerged in the seventeenth and eighteenth centuries. The political philosophers of the time came to see society as civil society, namely that every society is established through one or more political compacts which provide for a governmental dimension, but also guarantee space for individuals to be free of government, for a private dimension within the framework of civil society. This combination of emphasizing the political frame of socail organization along with the existance of private space is one of the major revolutions brought by modern political thought.

In the nineteenth century the stylish ideologies took matters a step further away from the Greek or medieval polity. Every major ideology of the nineteenth century not only rejected the notion that society had to be a polity but also that it even had to be civil society. Marxism saw government -- the state -- as something that would wither away once the revolution of the proletariat was accomplished. Anarchism saw the state as immediately bad, as inevitably bad, because it interfered with the true goodness of human nature and prevented that true goodness from coming out. Laissez-faire saw in the work of the market, a replacement for government. Every single ideology of significance in the nineteenth century can be said to have looked to the automatic society, to a society that would function without coercive institutions of government. All of those ideologies have failed as satisfactory vehicles for establishing political order and safety, security and rights, so that we have to agree on the need for government.

There is a special problem here with regard to dealing with the normal contradictions and that is, what understanding of democracy do we use? I would suggest that there are basically three understandings of democracy that are prevalent in the contemporary world. One is collectivist democracy. Lately, since the 1960s, it has been called participatory democracy. Everybody sits around and collectively reaches some kind of a consensus in decision-making. In Eretz Israel it was certainly a very prominent aspect of the original kvutzot and kibbutzim.

The second, I would suggest, is Jacobin democracy which is essentially an application of Rousseauian concepts of the general will with the added dimension that if the general will is not to be determined by 50 percent plus one vote -- and the reason it cannot be is that a state cannot rely upon popular majorities to be right -- then the state needs a guiding elite that will define the general will, which is the position the original Jacobins took during the French revolution. As Talmon and others have appropriately and effectively argued, this view is the basis for at least the form of totalitarian states.

The third is what I would call, after the writings of the founders of the United States, federal democracy, using federal not only in its eighteenth century sense but in its seventeenth century sense of covenant, that is to say, a democracy which is established by covenant or compact that expresses itself through the diffusion of power, through an understanding that there is no general will or permanent majority in civil society but, rather, that all members of the body politic have interests and concerns which converge and diverge at different times under different conditions, so that, in any polity, everybody is part of many minorities for some purposes and majorities for others. The latter are essentially coalitions of minorities that change from time to time, fairly frequently on some issues, and so, therefore, any efforts to make decisions on a collectivist basis or through a guiding elite are bound to injure the democratic rights of some significant segment of the population. I do not think that we articulate these different understandings of democracy sufficiently in our discussions of democracy; we usually leave these as unstated premises which is why we generally talk past each other on these matters.

The Special Contradictions of Israel

Turning now to the special contradictions of Israel, let me start with the problems of state, democracy, Jews and Judaism. It seems to me that the most concrete and pressing questions confronting us are: What should be the status quo or should there be a status quo? What is the relationship between individual liberty and the desire to maintain a Jewish content in the public space of the state? What about the Law of Return as a barrier to being a fully democratic state?

The real problem in confronting these issues is not the fact of a Jewish state but the lack of consensus within the Jewish state as to what it should be. Were Israel a state in which there was a substantial consensus about what constitutes Judaism, I do not think we would have problems of Judaism and democracy. Indeed, I think that we would not have any insurmountable problems in reconciling the governance of the state and halakhah. There are people of impeccable halakhic credentials -- for example Rabbi Chaim Hirschenson, who, on paper, did a fine job of reconciling a modern state with a fully, one might even say ultra-Orthodox (at least for his time) understanding of halakhah over 60 years ago. The problem is that there is no agreement on the need to do so or the desirability of doing so.

Nor is the Law of Return a problem, per se. Every state recognizes certain privileged people, born outside of its boundaries, who are entitled to automatic citizenship. For example, the children of American citizens born outside of the United States are entitled to American passports and can go to the United States freely while their peers, who were born in the same place at the same time but do not have that fortunate or unfortunate advantage, cannot do so. France holds to the principle that one can never cease to be a French citizen or a national. Frenchmen born outside of France even elect two Senators to the French national legislature. Other states take the same position. So this problem, in essence, is the lack of consensus with regard to the need or the desirability of such an arrangement for Jews as Jews.

Much the same thing is true with regard to the question of democracy and the two peoples in the land. Here I think the lack of consensus is based upon a failure of will in two groups. Let me make it clear; I do not refer to the lack of consensus between Jews and Arabs -- the consensus between Jews and Arabs has not even begun to form -- but to the lack of consensus within Israel with regard to what position Jews should take vis-a-vis the Arabs, the Palestinians, the other people in the land. This lack of consensus is a relatively new thing. I think that there was a far greater consensus with regard to what to do with the Arab inhabitants of the land before 1967 than subsequently. The consensus underwent several changes over the years but the fact that those who were outside the consensus, such as Brit Shalom and, at certain times, Hashomer Hatzair, were so clearly so, was a sign that the consensus was very broad indeed. This consensus was shattered after the 1967 war, certainly since 1973. In my opinion, this is because of a failure of will in two groups. I use the phrase "failure of will" deliberately; even though it is a very problematic term.

I think that there is a failure of will on the part of what we generally think of as a segment of the generation of 1948 who, compared to where their fathers and mothers stood on these issues, see in the protracted conflict something that is to be very much feared for a whole host of reasons. My concern here is not whether they are right or wrong, but the fact of the matter is that their parents' generation was prepared to enter into an intense and protracted conflict to achieve their Zionist vision while they are not.

I think the other group is a segment of the post-1967 generation which had great expectations in the aftermath of the 1967 war, hopes that were disappointed by a reality which we helped forge. They are disappointed in that reality and are undergoing the same kind of failure of will.

On the other hand there may be a lack of adaptation on the part of those who may have the will or believe they have the will to continue the conflict but who have not adapted to the changed situations that have occurred. Again, whatever is correct, and I do not know that we know which is correct, this leads to a breakdown in the consensus within the Jewish population of Israel with regard to how to proceed.

Once, at a conference with Palestinians, I watched a group of that part of the generation of '48 which has taken the lead in the peace movement, reject a Sephardi who was clearly of their political orientation on that issue. They literally would not talk with him. They would huddle by themselves and talk about this and that and the other thing, but they were more prepared to talk with an Ashkenazic woman from Gush Emunim who was there than they were to talk with him, even though he was absolutely within their ranks. I mentioned this to her at a certain point and she said, "Yes, don't you understand? Why do they want what they want with regard to peace? They are dreaming of what they remember of Israel in their childhood and youth and they figure first we will settle with the Arabs by giving back the territories through partition so we will get rid of them. We will only have the ones in the Galil. We cannot help that, but they are a small minority. Then they can get rid of the Orthodox because that is Gush Emunim -- after all, in their view all Orthodox have to be Gush Emunims. They can get rid of them if they cut them off. And then they can get rid of the Sephardim. Then the country will be really nice, right? Only the nice people will be there."

Now she was Gush Emunim, I am not Gush Emunim and I do not share her views about Gush Emunim, but I happen to think in this case she was right about these particular people. Why? Because I saw their behavior, which cannot be explained ideologically, but which to them no doubt was perfectly reasonable. Of course, we may find similar phenomena on the other side, although I do not have any good examples of it.

It is unquestionably harder to reconcile the two peoples, but I do not think that it is impossible if there were a sufficient will to do so on both sides. Basically, I do not think that Israelis, whatever side of the peace question they are on, really want to be reconciled with Arabs. I think they want peace with them based upon separation in one way or another. There are those who want to achieve separation by returning to the pre-1967 borders or something like that, and those who want separation by hoping somehow for emigration of the Arabs, or transfer. The fight is over that issue, but the desire for separation I think is as strong in both quarters. I think the desire on the part of the Arabs for the removal of the Jews is, if anything, even stronger.

The Partial Breakdown of the Present Social Contract

This now brings me back to the question of internal Israeli society again -- to the present social contract and why it seems to be breaking down -- perhaps not entirely, but at least partially. What did the original social contract of 1948 include of particular relevance to us here? I think we can talk about five elements that are particularly relevant:

  1. The status quo in sharing public space -- that is to say, the status quo agreement that was established really had to do with sharing public space between Orthodox and non-Orthodox.

  2. Part of the social contract was not insisting upon a religious or halakhic definition of who is a Jew, but developing a quasi-secular one that is built upon certain initial premises associated with the religious understanding.

  3. The agreement that, with the exception of certain yeshiva students, no matter how one views the other issues in society, one carries out one's security obligations. One serves in the military; one participates in the defense of the country.

  4. The agreement that, even where different visions are involved, there should be a consociational sharing in institutions. The Zionist idea itself increasingly became the faith of the fathers but remained a faith. This essentially meant that the system of proportionality would be maintained. Each different movement with its ideology and constituencies would fight in the accepted, agreed-upon political arenas, would win whatever percentage of public support it could in those arenas, would enter into coalitions or not accordingly, and would, in return, get some equivalent share of the common enterprise. That is the basis of consociational sharing.

  5. There was a general agreement that we would recall the Second Commonwealth and its failures and that we would not repeat the same mistakes. Ben-Gurion and Begin both drew out special lessons from that experience. Ben-Gurion emphasized the lesson that Israel could not afford to get into conflict with the major power in whose sphere of influence it was, the way ancient Judea came into conflict with Rome. Begin emphasized a different lesson, namely that Jews could not allow themselves to fall into civil war. Both these lessons, I think, were accepted by all parties, as witnessed by the decision on the part of the Israeli parties then of the left to ally Israel with the United States, not entirely a voluntary decision but still there were choices made, and Begin's decision first not to fire back during the Altelena affair and then to allow the Etzel to be disbanded and to join in the normal political processes, even though for him, at any rate, and his colleagues there was great provocation and he was under some pressure not to do so.

Now what has happened with this original social contract of 1948. With regard to the status quo and sharing public space, I think there has been increasing rejection in two directions. One is the rejection by the ultra-Orthodox. They now want what I would suggest is not so much the sharing of public space as a new status quo based upon what Mordechai Rotenberg, and others, have described, drawing from a traditional idea, as the Issachar-Zebulon transfer. In other words they see themselves as the guardians of Torah which keeps Israel alive and they think that the rest of the state should simply support them, their institutions, and their people. On that basis, I believe they are prepared (except for the most extremist among them) to maintain civil peace provided there is unrestricted support of their institutions. Otherwise sharing public space involves too many compromises and they are no longer prepared to accept that. I will come back to why that makes a difference now when it did not make a difference in 1948, since they probably did not see matters much differently 40 years ago.

On the other side is the rejection of the old status quo by a new generation of hedonistic individualists. Characteristic of the original generation of 1948 that accepted the status quo in this area was that they were more militantly secular than most of the people who oppose it today. I am not talking about the few active secularists; I mean the general population. They were more militantly secular but they also had two things. They had a deeper understanding of what the sharing of public space was about because they knew what being Jewish was about in a traditional sense even if they had rejected the religious dimension of Judaism, and second, they had an appreciation for the some of the ancillary values, not the religious values, but the ancillary values of a yom menucha (day of rest) and of moadim (the cycle of Jewish holidays) that reflected the tradition. They were, indeed, in many cases interested in maintaining both by pouring new wine into old bottles.

The present generation is probably much less secularist. If you polled them, most of them would probably even own up to a belief in God. But they want their conveniences like most everybody else in the Western world these days. And if they want to have their conveniences on Shabbatot and hagim and so forth, they do not want to be restricted because of some status quo that requires them to share public space in a way that those conveniences are somehow limited or made unattainable. This is a more serious assult on the status quo, one which, in my opinion, almost inevitably disrupts the previous arrangements. The only comparison I can think of, but I am sure there are others, is what happened in those Western societies at the end of the nineteenth century where Reformed Protestantism had a very strong hold and required closing down commercial and recreational activities for the Lord's Day -- "blue laws," as they were called in the United States. When there was no longer a consensus around those laws -- and most of the time they were not even enacted into law until there was no longer a consensus to sustain them on a voluntary basis -- then the Protestant fundamentalists managed to secure such legislation in a period of transition. It never worked, because unless there is a consensus, one cannot successfully impose such things by law in a free society.

The second element in the breakdown is the ultra-Orthodox attack in the who is a Jew issue. In fact this was an attack that in its serious form was generated from outside the state. Those inside the state who originally generated this attack, in my opinion, did it as a smokescreen to get more money in the Issachar-Zebulon transfer. But when the Lubavitcher Rebbe started, he had a different agenda in mind. What is important about this, again, is not the issue itself but the shifting balance of energy in the Jewish people which, it seems to me, is a very serious issue; that with the demise of energetic Zionism, ideological energy has been shifted to fundamentalist Orthodoxy as ideological energy in much of the world has flowed to fundamentalist religion in general in the last decade or so. This is not necessarily an inevitable or enduring phenomenon, but for the moment almost the only people who have ideological energy in Jewish life today are the fundamentalists.

Second, there is demographic energy. This is even more apparent in Jewish life than the ideological question. The only people who are reproducing themselves today in substantial numbers are the Orthodox and ultra-Orthodox. In the diaspora there is less than zero population growth and while in non-Orthodox Israel there still is some population growth, it does not compare. This kind of energy also effects the tide of events. As we know, most human events are not shaped by vast majorities that are relatively inert, but by energetic minorities. And this is a very energetic minority and it is energetic on two of the most crucial fronts of Jewish life at any time, namely the ideological and the demographic. So it means something when the assault on the status quo comes from that quarter.

Third, there is a growing refusal of a still fringe but perhaps a portentious fringe group to carry out their security obligations because of their opposition to certain government policies as in the case of Yesh Gvul. This has not gone nearly as far as have the actions of the ultra-Orthodox in breaking down the status quo. I think that there is still a very strong consensus with regard to carrying out security obligations, but there is no question that it is not the essentially universal consensus that we had come to know.

Fourth, there is a great decline in the consociational bridge that provided a linkage between the contentious groups that comprised the Zionist movement and later the State of Israel. This has led to an intensification of the confrontation in the realm of ideas. The consociational bridge could maintain itself as long as most people in the country fit into one or another of the camps and parties that comprised the consociational system. Today almost the only people who find themselves at ease in this kind of framework are the Orthodox and ultra-Orthodox, the religious camp in its broadest sense, and perhaps some elements of the far left and far right and I am not even sure about them. For most Israelis today, however they vote, Labor or Likud, they do not identify themselves heart and soul with some camp. They are not tied into the institutions of that camp except in a residual way. They do not live their lives within the framework of that camp as had been the case up until the mid to late 1960s. And therefore the consociational bridge is no longer available, while at the same time the willingness to share, to communicate in the realm of ideas, remains strong.

Finally, the collective recollection of the failures of the Second Commonwealth is still holding. To me it is extremely significant with regard to the social contract that holds Israel together that at those moments when violent confrontation has crossed certain red lines, it has immediately ceased and pulled back. After the murder of Emil Grunsweig, the demonstrations stopped almost immediately on both sides. When the burning of bus stops led to reciprocal violence against synagogues and yeshivot, again there was a full stop. Everybody stopped, even the people we would think of as being outside the consensus, their leaders stopped them. These to me are signs of this collective memory, so to speak, and it is still holding.

Now this means that there are still some elements of the status quo, of the original social contract, that are holding, but there are so many that are not that the others are likely to erode if there is not a restoration or a renegotiation of the social contract.

Toward a Covenant of Civil Peace

Let me say a final word about dealing with the contradictions. Again, let me reiterate that every proper democratic state rests upon the consent of its citizens, not as an armistice between enemies but as an agreement among partners in a common project. If it is really an armistice between enemies, then it may suffice to keep a certain modicum of civil peace but it certainly cannot function as a civil society. A social contract in this sense is a minimum. Appropriately a society would be based on a mutual covenant which is much more than a social contract.

A contract is properly understood as an agreement entered into by two or more parties primarily for the individual benefit of each and only secondarily for their mutual benefit. That is the difference between a compact and a covenant. A social contract is something that is useful because there is an individual benefit in maintaining sufficient civil peace to protect at the very least one's life and maybe beyond that one's liberty, one's property, one's pursuit of happiness, the phrases that we are used to using in describing such matters. But it is a minimalist requirement, designed primarily for individual benefit and only secondarily for mutual benefit.

Contracts are written the way they are, crossing every "t" and dotting every "i," because it is legitimate for each side to try to interpret the contract to get the maximum for himself and to give the minimum to the other side. It may not be the best, most self-interested policy, but it certainly is possible, and because it is possible, that is why contracts are written the way they are, as distinct from covenants or compacts in which there is a dimension of hesed, of mutual obligation and responsiveness that goes beyond the letter of the past. In any covenant, it is expected that the partners have a goal of mutual benefit that is at least as high if not a higher priority than that of individual benefit, and which requires everybody to act with a certain openness and forthcomingness in such matters. Every civil society that is based upon a compact or a covenant, as distinct from a contract, has some term, frequently a legal principle -- hesed in Hebrew, comity, for example, in the Anglo-Saxon world -- that embodies this requirement that people behave in such a way. Otherwise the compact or the covenant cannot hold.

In this connection, I think that there is an advantage in turning to perhaps the most hard-headed, hard-nosed philosopher of them all, Thomas Hobbes, as a starting point. In the Israeli situation, Hobbes has the virtue of starting from an utterly secular, a radically secular beginning, though he ends up acknowledging if not requiring a religious understanding of what he proposes as well. Starting from that utterly secular grounding, he makes a powerful argument for a certain kind of political covenant which is designed to protect life and to make civil society possible. Without accepting his anti-democratic institutional solution as to how this covenant should be implemented, it is useful to take another look at the fifteen natural laws or fundamental covenants that form his covenant of civil peace. That covenant offers a starting point for serious discussion in any civil society of how to create the kind of compact or covenant necessary to make it work. They are as follows:

  1. To seek peace, and follow it.
  2. By all means we can, to defend ourselves.
  3. That men perform their covenants made.
  4. That a man which receiveth benefit from another of mere grace, endeavor that he which giveth it have no reasonable cause to repent him of his good will.
  5. That every man strive to accommodate himself to the rest.
  6. That upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
  7. That in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
  8. That no man by deed, work, countenance, or gesture, declare hatred or contempt of another.
  9. That every man acknowledge another for his equal by nature.
  10. That at the entrances into conditions of peace, no man require to reserve to himself any right which he is not content should be reserved to every one of the rest.
  11. If a man be trusted to judge between man and man, that he deal equally between them.
  12. That such things as cannot be divided, be enjoyed in common, if it can be; and if the quality of the thing permit, without stint; otherwise proportionably to the number of them that have right.
  13. That the entire right; or else, making the use alternate, the first possession be determined by lot.
  14. That all men that mediate peace, be allowed safe conduct.
  15. That they that are at controversy, submit their right to the judgement of an arbitrator.

These are all basic laws for civil peace. In my opinion it would advance the Israeli discussion a great deal if we were to focus on them as the basis for thinking in more practical or more immediate terms about Israel's practical and immediate situation.

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