There are many who argue persuasively that behind the so-called ‘judicial reform’ initiated by this government is the Prime Minister’s desire to remain free from punishment at the end of his trial for corruption and to allow other convicted criminals in his cabinet to continue to serve in office. They point out that as recently as slightly over ten years ago, he asserted in a rousing defense of a “strong and independent” legal system and concluded, “I believe that a strong, independent court allows for the existence of all other institutions in a democracy.” Netanyahu added: “I ask that you show me one dictatorship, one undemocratic society, where a strong independent court system exists. There’s no such thing.” But his desire to protect himself and fellow criminals apparently has changed his mind. The passage of yesterday’s legislation undermining the independence of the Israeli Supreme Court is the first dagger in the heart of Israeli democracy thrown by this Netanyahu led coalition government.
But this immediate reason is not the true beginning of the story. It all starts with the fundamental question of what is a Jew, a question Israel has never really answered. The term “Jew” itself is a reminder of a split between two competing visions of who we are. “Jew” is a shortening of the term “Judean,” denoting inhabitants of Judea who were remnants of the Davidic kingdom that was led the nation of the twelve tribes of Israel. After about 75 years of sovereignty in the Land of Israel that Davidic kingdom split into two competing states, the two tribes of Benjamin and Judah becoming the “Southern Kingdom” of Judea with its capital in Jerusalem and the other ten the so-called “Northern Kingdom” of Israel, with its capital in Samaria. After the latter’s defeat by Assyria and the dispersal of the ten tribes, Judea continued a bit longer until like Israel it was conquered by the Babylonians and its people also dispersed. In both cases, divisions and internal conflict preceded and led to these invasions and defeats. Later, after the Hasmonean dynasty reestablished Jewish independence in Judea as it too approached its 75th year of sovereignty it likewise faced disintegration and defeat because of internal strife and infighting, this time between those who sought to Hellenize and those who demanded a theocratic attachment to Judaism as they defined it.
The aftermath of these divisions and defeats always led to Jewish wandering and exile from our national home as well as the experiences of being barely tolerated minorities among many nations – with sporadic but regular occasions of persecution, expulsion, and sorrow. How did this happen? History seems to suggest we did not know how to maintain a state more than 75 years without turning on one another, making us ripe for invasion and conquest.
Throughout this lachrymose history, what kept the Jews a single people is not obvious. Was it their attachment to their religious holidays and traditions? These changed and owe much of their character as a response to the nations and peoples among whom they dwelt. Indeed, finding a common element in Jews is one of the greatest puzzles of history. Are we a religion, an ethnicity, a race, a nationality, and a single people? The answers are not obvious.
When after two thousand years, the Zionist idea of a return to the ancient homeland gained currency, the question of whether Jews the world over had enough in common to be ingathered in a common nation remained central. Secular and socialist Zionism tried to make believe that it could by an act of political will clear the slate and filter Jewish history so that modern sensibilities and ideas could anchor themselves in Biblical history, when we were a single people still, and forget about the two millennia of diaspora and wandering, and start again with an entry and conquest of the land in the twentieth century. It looked past the question of finding a common element to unite the Jews, banking on a common land to make the puzzle moot.
Religious Zionism, initially with fewer adherents, also struggled with the same question of what the Jews were and how Zionism might solve the problem, and tried to combine the secular ideas of statehood with the religious ones that dreamed of Zion, viewing the return to the ancient homeland as less a modern idea and more the fulfillment of the messianic dream of a Divinely guided return and redemption. Both wanted a Jewish state, but the secular and socialist group wanted a democratic one while the messianists wanted and imagined a theocratic one.
Actually, most Jews of the 20th century were not particularly interested in either of these Zionist visions, being more or less used to their diaspora cultures and ways of life. But the tumultuous history of the twentieth century intervened. The dislocations and changes caused by two world wars, a Soviet revolution and the end of colonialism especially in the Middle East and North Africa shook up the very Diasporas in which a majority of Jews lived. Suddenly, the Zionist settlement in Palestine became a refuge for many of them. Although the “Promised Land” in the ancient Holy Land initially was for Jewish refugees a second choice to the “Land of Promise” in North America, after the State of Israel was declared in 1948 Jewish refugees from the Holocaust and expulsions from Arab lands came in droves to the fledgling country.
Once again, the question of what and who was a Jew reared its head, along with the associated puzzle as to what could unite all these immigrants into a single people? It was not a language, since most spoke little or no Hebrew. Nor was it religion, as a majority were not religious, and not all were believers in the messianic or Zionist idea. Indeed, one group – the Haredim – actually saw Zionism as heretical and believed messianism could only end the God-given exile with Divine intervention but definitely not under the leadership of secular, socialist, heretics. Neither the values of democracy nor secularity were universally shared nor were the theocratic dreams of the messianists.
For the founders of the new Zionist state these various streams of Jews were familiar from the diaspora but they had no real solution for how to blend them into a single national identity. The resurrection of Hebrew as a modern tongue and the national language was extraordinary and by no means a given, but its success – in spite of the Haredi ideological insistence on speaking Yiddish among themselves – made Zionists believe the intra-cultural differences would also be solved and disappear over time as the new immigrants would build the new state and be built up by it into Israelis. Numerous wars with the Arab states, the union of pre-state militias into the Israel Defense Forces, and other institutions as well a common calendar would, the leaders imagined ultimately integrate all these Jews into a single nation, and wipe ethnic, social, class, and religious differences away or at least dim them. But as time passed and more and more people came to Israel, divisions not only persisted, they grew.
In the meantime, elections were nevertheless held for the new state, in the hopes of forming a government. But the results always ended up in coalitions of a variety of parties and views because unity was difficult for the Jews. These coalitions ran the 120-member Parliament and appointed the Prime Minister. For the last 75 years of Israeli independence those coalitions have moved increasingly from the left to the right of the political spectrum, from the dominance of socialism and democracy headed by the overwhelmingly European roots of the founders of Labor bloc to nationalism, capitalism and the dictatorship of theocracy headed by the Likud bloc whose embrace of Middle Eastern and North African Jews challenged the dominance of many of the state’s Ashkenazi founders.
Wars and the political changes of the late 20th century and early 21st have continued to intervene. From the 1967 war, the rise of the Likud nationalists under Menachem Begin in 1977 through the latest operations within the conquered and occupied territories of Israel and the increased influence of Jewish settlements based on religious prophesies and beliefs, the divisions between theocrats and messianists on one side and democrats and secularists on the other have sharpened. The occupation and its inequalities have taken a great toll on the beliefs in the possibilities of democracy here in a Zionist state.
Clearly, the initial divisions among Jews at the dawning of the state have never been really overcome. Such questions as to whether modern civil law and courts should determine what was right and wrong or should Jewish law, the halacha, be the ultimate arbiter of right and wrong and rabbinic courts rule over the civil courts still have not been resolved. The problem of where all those in the state who were not Jews fit in has still not been solved; should they be treated as ‘strangers’ as Torah law defines them or full-fledged citizens as civil democratic law does? Are women to be treated equally, have the right to vote and run for office, are non-Jews to be given equal rights and access? The answers are not final.
A constitution at the time of the state’s formation might have answered these questions, but the theocrats and democrats could not and still cannot agree on which law should undergird the constitution. The former continue to say there already was a constitution – the Torah – and the latter, who do not guide themselves by it only or even necessarily believe in it want something in line with the United Nations Universal Rights Declaration, or Israel’s Declaration of Independence (modeled after the American one). Unable to answer these questions, the new state of Israel deferred the writing of a constitution, and to this day has none.
In its place the civil courts and the Supreme Court became the effective stand-in for a constitution, ruling what could and could not be done legally, using such measures as so-called “basic laws” and the concept of “reasonableness” to decide if laws passed by the legislature were legal. In time, as the country moved toward the theocratic and nationalist right, judicial review by the Supreme Court became the only institution way with the power to check its effort to replace democracy. Increasingly the court was no longer seen by many on the religious and nationalist right as impartial but rather seen as representing secular elites – even though many of its justices were actually appointed by right wing governments. In the distillation of the divisions, one side saw the court as dictating what was to be done, while the other saw religious fanatics and theocracy as doing the same.
All this freighted history has come to a head in the protests against the current government extreme right-wing coalition. While the opponents of this government coalition made up of theocrats, messianists, and haredim call for ‘de-mo-cratia,’ the pro-government champions call for ‘teo-cratia’. The fight is no longer simply to keep Netanyahu out of jail and in power; it is a struggle for what will be the nature of a Jewish state.
The efforts to defeat the ability of the secular Supreme Court to determine the legality of laws created by the legislature, in which this government scored its first victory on the 6th of Av, July 24, 2023, recalls the history of divisions among Jews and the high cost of deferring the writing of a constitution. Once again on the eve of the 9th of Av, the day that according to Jewish tradition the first and second exiles began as well as other calamities of Jewish history seems to be repeating itself around the 75th year of our latest sovereignty. Are we in this land once more standing at the precipice of destruction from our divisions, as our external adversaries watch carefully? Having deferred the hard decisions, the sins of the fathers are being visited on the children. Again, the divisions that turn a deaf ear to the calls for negotiation and compromise stand out. The stubbornness of those who believe they know God’s will and do not believe God wants them to compromise is visible. The inability to compromise tears us apart. Apparently, we Jews are unable to learn from the history and condemned to repeat it.