Here’s the situation. On one side of the aisle, there are legitimate fears about judicial oversight, fueled by feelings of deep alienation from, and resentment towards, the so-called “liberal-elite.” This liberal elite has, to the minds of many people, reigned supreme for far too long.
On the other side of the aisle, there are legitimate fears about elected ministers throwing off the shackles of judicial oversight altogether, and about precious individual rights not being sufficiently insulated from the dangers of the proverbial tyranny of the majority. These fears and concerns, on both sides of the aisle, are warranted.
Sadly, and as Professor Yedidia Stern has pointed out, we’re not currently in a position to think realistically about writing a fully-fledged constitution for the State of Israel. We’re just too divided. A fully-fledged constitution would include a shared vision for what our State should be, and what it should stand for.
Nevertheless, Stern rightly suggests that we could, despite our many divisions, put our heads together, to write a “thin” constitution. A thin constitution would be a binding document that focusses only on matters of procedure: how should laws be passed, how should governmental powers be kept in check, etc.
This could all be achieved, I’m sure, if only our government were more concerned to bring about a consensus, rather than bashing through a constitutional overhaul at lightning speed. But let’s imagine, for a moment, that Israel somehow makes it through the current political impasse, and some new status quo is achieved. My question is, what next?
Yes, we need a thin constitution. A constitution is something like a social contract. It’s an agreement that binds the citizens of a country and its institutions of government. But the thing about a social contract is that it only creates a state. It doesn’t create a society. A healthy state isn’t the same thing as a health society. Thomas Paine, the great American revolutionary was keen for us to draw a sharp distinction between state and society. He wrote:
Some writers have so confounded society with government as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices … Society in every state is a blessing, but government, even in its best state, is but a necessary evil.
We need a government. We need a judiciary. We need for there to be checks and balances. And thus, we need for there to be a social contract, or a procedural constitution. But that’s just a technical fix to a technical problem. If we weren’t so divided as a people, into our warring tribes, it actually wouldn’t be all that hard. And thus, what we really need, more than the necessary evil of a functioning government, is the blessing of a functioning society. And we are very far from that indeed.
Rabbi Jonathan Sacks was greatly inspired by Thomas Paine, and he recognised how Paine’s philosophy – despite his great secularism and his religious skepticism – was born from a close reading of the Hebrew Bible. What’s so remarkable about the Hebrew Bible, when read as a political document, according to Rabbi Sacks, is the idea that you need a social contract to create a State, but before that, you need a social covenant to creates a society.
In the Hebrew Bible, the social contract doesn’t happen until, after many years of a sort of stateless anarchy in the land of Israel, the people requested a king. At that point in time, the prophet Samuel warned them against all of the dangers that can come along with a government, and he laid out the constitutional parameters that would define the powers of the king, and the rights and responsibility of his subjects. That’s when the first Jewish state was created. But long before that time, the Jewish people had been formed into a community – into a society – in the wilderness of Sinai. It is the fact that we had a social covenant before we had a social contract that allowed us to survive as a people for so long. In the words of Rabbi Sacks:
Jews survived in exile for two thousand years … because they were a society before they were a state. They had laws before they had a land. They had a social covenant before they had a social contract. So, even if the contract failed, the covenant remained. Even if they lost their state, they were still bound together as a covenanted nation. Even if they lost the land, they still had the laws.
Sadly, it looks as if the current political crisis is forcing us to reverse this procedure. We have to fix the state, before returning to the underlying fissures in our society. What we urgently need, therefore, in the short-term, is some sort of consensus about a procedural constitution. But the only reason that that’s such a difficult thing to achieve, and the problem that we’ll have to address in the long-term, once we somehow overcome the current impasse, is that we sorely need to renew our social covenant. We need to heal the fractures and the fissures that have torn our society into a motely collection of warring tribes.
What binds a collection of people together, more than anything else, into a single society, is a story that they can share. What we desperately need to articulate together is a story that embraces all of our experiences: an Israeli national narrative. This too was an insight that Rabbi Sacks gleaned from the Hebrew Bible. He wrote:
The Bible more or less invented the concept of a national narrative: the story of the exodus, endlessly repeated on Passover, when bringing first-fruits to the Temple and, once the synagogue was established as an institution, as part of the morning and evening daily prayers.
In the book of Deuteronomy, the entire nation is commanded to convene, every seven years, to hear a public reading of passages from the Torah. To Rabbi Sacks’s mind, such gatherings, like Presidential inaugurations in American history, would function as renewals of the national covenant, “in which leaders recalled the nation’s history, gave thanks to
God and rededicated themselves to the terms of their vocation.”
The massive challenge, of course, is that a national narrative, to be healthy, must be inclusive. It must embrace every member of the society. Rabbi Sacks was very clear about that fact. He wrote that an Israeli national narrative need not “be exclusive to Israel’s Jewish citizens [but] … can be, [and] indeed must be, inclusive.”
What would such a narrative look like? Sadly, Rabbi Sacks wasn’t forthcoming with an answer to that question. It is a task that he has left us to complete without him. But he has framed the challenge. How will a single story give equal weight to the Jewish experience of 2000 years of exile and yearning for return, and to the experience of Israel’s Arab citizens whose roots are deeply embedded into the same land, and whose language and culture have been displaced, as they became a proud minority in their own land? How will a single narrative bestow equal dignity upon the innovative and liberal culture of Tel Aviv as it does upon the piety and faith of the Yeshivot? How will it heal the rifts between Sephardim and Ashkenazim? How will it weave together the historical experiences of Druze, Jews, Christians, Muslims, the secular, and the religious, into one narrative that we can all tell to our children, that casts us all as brothers and sisters in one big society that can tolerate, accommodate, and even celebrate, our differences whilst consolidating and solidifying the things that we share? That, I believe, is the single greatest challenge facing Israelis today. Only if we can articulate a unifying narrative will we have any hope of creating the blessing of a society in which we all feel bound to one another by the bonds of responsibility and a shared destiny.
A procedural constitution might be urgent. But more important than a constitution is a story; a story that can bind together a broken society.
All quotes from Rabbi Sacks’ writings come from his book Future Tense, chapter 8.