Six years ago I purchased a condominium in Yaffo , and the builder referred me to his lawyer for the paperwork. The lawyer explained that even though I would pay his fee, he would be representing the builder. When I asked Israeli lawyer friends about this arrangement, they replied that’s how these purchases are done in Israel. I too am a lawyer, but I was educated and am practicing in the U.S., so I found this kind of attorney-client relationship odd. But I also realized that if I wanted the condo I would need to accept this way doing things. When in Rome, one does as the Romans do. I paid the lawyer.
Six years later, I’m still trying to get all the services he promised. I’ve sent dozens of letters and emails and placed numerous phone calls. He never called back, though he eventually felt sorry for me and sent a note telling me to wait. The lawyer is right. I agreed to an arrangement that is the norm in Israel; he is free to ignore me.
But this got me thinking: Just as I accepted this strange arrangement with the lawyer, Israelis accept other strange arrangements as the norm. Take, for example, the concept of a Jewish democracy. One of the main pillars of democracy is an electoral system in which the people choose representatives to pass laws on their behalf. In no democracy does the government defer to laws the legislature never passed. Yet the Jewish state accepts religious laws—which some believe are God’s laws—that were written thousands of years ago, and certainly not by democratically elected lawmakers.
Imagine if the Knesset were to accept the laws of the U.S. as Israel’s own. This would create a huge uproar, and the legislators would be impeached. But this is exactly what is done in Israel. When legislators defer to religious laws, they ignore their obligation to legislate.
The same contradiction applies to any nation that claims to be both religious and democratic. It is an oxymoron to have a Muslim democracy or Christian democracy or Jewish democracy. The essence of a democracy is that its legislators make laws based on principles they represented to their constituents in their campaigns for election.
It’s true that Israel’s religious laws are mostly confined to immigration and to such personal matters as marriage and divorce. But it’s also true that immigration and domestic laws significantly shape a nation’s character. Among other government-sanctioned restrictions, Israel’s laws preclude interfaith marriage and prevent the immigration of non-Jews to Israel. In those areas, the Knesset defers almost exclusively to Biblical and Talmudic law. Those who enforce the domestic laws are largely the rabbinate. The determination of “who is a Jew” (which controls who can marry and divorce and immigrate to Israel) is left in the hands of religious leaders who rely on Biblical principles, not on guidelines or definitions set by Israel’s elected legislature.
Israeli law also exempts certain segments of the population (mostly Muslims and ultra-religious Jews) according to their religious beliefs. About 20 percent of the population is comprised of Orthodox Jews, who, to a large extent, live their lives based on Biblical and Talmudic laws and are less affected by secular laws passed by the Knesset. Another 20 percent is comprised of Israeli Arabs, mostly Muslims, who, to a large extent, live their lives based on the Koran and Sharia law. Both Orthodox Jews and Muslims in Israel have their own leaders, who are not elected by the general population but have significant political control over their communities. The Knesset agrees to defer to these leaders and to religious laws on the most meaningful matters affecting the nation’s character. Precisely because of these contradictions, Israel has never been able to come up with a Constitution. It is unable to align its desire for democracy with the contradictions inherent in its self-description as a Jewish democracy.
Another contradiction in Israel’s government is the separation of powers. A modern democracy relies on separation between the legislative, executive and judicial branches. But in Israel, the 120 members of the Knesset (the legislative branch) form coalitions to create a government (the executive branch). Most government officials, including the prime minister, are members of both the legislative branch and the executive branch. Members of the coalition government appoint Israel’s judges (the judicial branch). People in the legislative branch vote for laws in the Knesset, then drive few miles to their executive office and enforce the laws on which they just voted. They appoint the judges who are supposed to overlook any illegality of the legislature’s actions. There is substantial intermingling between the executive and legislative branches and substantial influence by the executive branch over the judicial branch. This concentration of power creates a lack of transparency and encourages political stagnation, both of which undermine a functional democracy.
Israel’s other glowing inconsistency is the strange manner in which it decides who is entitled to citizenship. Normally, all those who live OR ARE BORN In a nation are citizens of that nation. Just imagine if the U.S. government were to decide that “undesirable” parts of Texas were not part of its democracy and that most Texans (with the exception of those in big cities where Democrats are in the majority) didn’t have the right to vote because this is a Democratic country and Texas has too many Republicans. This is precisely what Israel does. It has decided that the Palestinians of East Jerusalem are citizens of Jerusalem only. They have the right to vote for the city government but not for the Israeli government. The Palestinians in the West Bank and Gaza are not allowed to vote for the Israeli government even though the Israeli settlers in those areas are allowed to. This is clearly selective democracy. A government is not truly democratic when it pre-selects and screens its voters.
Israel’s form of government is unhealthy. The nation concedes its government to religious elements, both Jewish and Muslim, that undermine its democratic aspiration. By injecting religion into its government, Israel is forced to defer to both Biblical and Sharia law and to deny citizenship to the Palestinians, all for the purpose of maintaining this unsustainable “religious” democracy.
Is it possible to have a democratic state and still offer protection to the world’s Jews? To do that, Israel must establish a true democracy, one with a constitution that gives legislators the power to make laws that protect all religious believers. The constitution must guarantee the right of citizenship to those within its borders, and the right of all its citizens to live in safety and peace and to practice their religion; it must not give priority or preference to any religion. A first step on the road to that democracy would be the Israeli Palestinian Confederation, a third government for the peoples of Israel and Palestine together, one that guarantees the free practice of religion but remains separate from religion. The Constitution for such a government is available at http://www.ipconfederation.org/constitution-english.aspx