In Israel’s most severe domestic political crisis so far, the efforts of mediators from the middle political spectrum have led to an impasse. The reason for the stalemate is that the real causes of the crisis remain hidden behind the standard flattened rhetoric. Due to their spiraling radicalization, the conflicting parties are barring themselves from reasonable dialogue and, like the Biblical Pharaoh with his escalating obstinacy of heart, are getting deeper and deeper into a paralyzing tunnel vision. Politicians can hardly signal any more willingness to compromise to the masses, which they themselves have brought to the brink of mass psychosis, without losing face.
So much nonsense has already been said in and about this conflict: Israel’s democratically elected government is pursuing the abolition of democracy, the Supreme Court is to be stripped of all its control functions, human rights are to be abolished… Misleading comparisons with the fall of the Weimar Republic and Hitler’s seizure of power in 1933 do no justice to the special constellation in Israel – and spread panic.
The point here is not to please one or the other party to the conflict. There is no denying that the government is making serious mistakes in its clumsy approach. It presented a judicial reform that went too far and tried to push it through in parliament without seeking dialogue with the opposition. Haredi ministers outbid each other with militant bills that are not taken seriously even within their own ranks, and with his adolescent, blustering remarks Minister Itamar Ben-Gvir drives even the last good willing mediators between the government and the opposition to despair.
On the other hand, when studying the rich literature on the legal and historical background of the debate, even the layman inevitably concludes that there is no battle between good and evil raging here. The claim that the judicial reform means the end of democracy is demagogic and therefore dangerous, as it drives some citizens to refuse to serve in the army – an unprecedented transgression of boundaries in Israel that poses an existential threat to the Jewish state of Israel in the long term. The reaction of the reform opponents is demagogic because the initiative for judicial reform is based on legitimate concerns.
Supreme Court President Aharon Barak’s constitutional revolution in 1992 was criticized by distinguished experts, from his Deputy Supreme Court President Mishael Cheshin to influential law professors as Ruth Gavison and Daniel Friedman. In the eyes of numerous experts, Barak’s legal activism has severely damaged the separation of powers between the Knesset and the Supreme Court. In this sense, the reformists are concerned with strengthening the separation of powers in Israel, and not “abolishing” it, as opponents of reform claim. In particular, the standard of reasonableness has opened the floodgates to some arbitrary obstruction of the Knesset by the Supreme Court and needs to be restricted (not abolished). Some experts advocate also greater political influence on the judges’ selection committee because, in its current composition, it does not represent the Israeli population. Greater parliamentary involvement in the election of judges would make it more democratic rather than dictatorial.
Why, then, is the debate conducted in such an irrational and demagogic manner? Because the confrontation surrounding judicial reform serves as a proxy conflict in Israel’s deeply divided society. What is at stake are the big questions of the identity of the State of Israel, a discussion of which has been avoided, at least in public discourse, since the founding of the State.
What is a Jewish state and how do religion, culture, ethnicity and nationality relate to each other? How does one create a meaningful synergy between Judaism and democracy, and what does this mean for the relationship between church and state? What is the position of religious minorities in the Jewish state, and what about the right of homosexuals to marry and raise children? How can the Haredim smooth their way into the middle of Israeli society with equal duties and rights without relinquishing their own identity? The position of the liberal currents of Judaism in Israel must finally be clarified and the legitimate demands of the seculars for civil marriage and public transport on Shabbat must be taken seriously.
Although these topics have been discussed in various expert circles for years, the debate must finally be flushed to the surface of public discourse. The demonstrators who are chanting “democracy” on Israel’s streets really call for an open, fair debate on the fundamental issues of Israeli identity, within the tension between Judaism and democracy. However, legislation is not the right means for the task at stake, and the heterogeneous state of Israel is simply not yet ready for the establishment of a constitution. What is needed is an open civil society dialogue, supported by politics, the judiciary and the media, which will ultimately lead to a reformulation of the Israeli ethos and to a formation of a new Israeli social contract.
Instead of fueling fears and hostilities through tendentious misrepresentations, false historical comparisons and radical platitudes, both politicians and the media would do well to stimulate rational discussion about the existential questions at hand. At the proud age of 75, the legendary “Srulik” is now in the middle of an adolescent identity crisis. In the face of the new Jewish year 5784, everyone would do well to reduce hostility and demonization and, drawing on the best tradition of Jewish debate and argument, to support Israel’s transition to its next phase of development.