Walter Bagehot opened the 1872 edition of his English Constitution by reflecting on the difficulties of recording a country’s political culture as it is actually practiced and lived. Bagehot’s work set out to explain the governmental system of a country that had no single constitutional document—whose constitution was nothing but the weight of political experience and the realities it had helped create. Wrote Bagehot, “There is a great difficulty in the way of a writer who attempts to sketch a living Constitution—a Constitution that is in actual work and power.” At the time Bagehot was writing, English democracy was undergirded by a 650–year tradition of more or less peaceful evolution, spanning from the Barons’ Rebellion against King John in 1215 to the passage of the Reform Act of 1867 (the event which precipitated the second edition of Bagehot’s book). England’s vast political history backed Bagehot’s central premise—that the system was itself a constitution.
Israel is also a country without a written constitution. But if one were to sketch the Jewish state’s equivalent of Bagehot’s “living constitution,” the picture would be decidedly bleak. Unlike England, Israel’s democracy is not reinforced by centuries of democratic development, nor by mutually agreed–upon constitutional precepts and values. Israel has been in a 60–year transitional phase, with few meaningful changes to its political system since the pre–state era and little, widely–accepted constitutional thinking on issues like religion and state, minority rights, or the overall purpose and orientation of the state.
Israel’s lack of a constitution was at least initially the fault of historical circumstance. The political leadership of the country’s founding period was faced with the challenge of establishing a democracy within physically vulnerable borders that included a large Arab minority—this in the midst of a war that would kill about one percent of the nascent state’s population. Israel’s founding generation achieved short–term stability and framed a future democratic order against incredible, even unprecedented odds. It did this through emphasizing political continuity, partly though providing a constitutional basis for the prestate political system before tabling the constitutional issue altogether.
Politically, Israel weathered the chaos of 1948 by maintaining its Yishuv, or pre–state era legislative structure, which included a proportionally elected legislature without any local representation. Political scientist Peter Medding has written that the Yishuv system gave Israel “the advantage of being able to establish the new political and administrative institutions of the state on the basis of existing structures.”
Yet even before 1948, the Yishuv leadership realized that these “existing structures” could provide little more than short–term political certainty. Shortly after the partition vote in November of 1947, the Jewish Agency gathered representatives from the Yishuv’s various political blocs (including marginalized groups like the Revisionists and Communists) to create a draft constitution that a democratically elected constituent assembly could finalize and ratify. The Declaration of the State in May of 1948 supported these early efforts at constitutionalism, and called for the passage of a constitution “not later than the first day of October, 1948.” The War of Independence effectively did away with the Declaration’s timetable. But war was far from the only obstacle to constitutional consensus.
From the beginning, constitutionalism exposed some of the ideological divides that made Israel’s existing system so inherently fragile. Religious parties believed that secular constitutional authority would represent a “writ of divorce” from traditional religious law, while then–Prime Minister David Ben–Gurion, a secularist from the politically–dominant Labor party, believed that parliamentary majoritarianism gave Israel all the constitutionalism it would need. His efforts in giving the new state a semblance of legitimacy within traditionally anti–Zionist ultra–Orthodox communities further jeopardized the proposed constitution. The opposition argument—that a lack of constitutional checks and balances granted almost unlimited power to the ruling, Labor–led parliamentary bloc—gave a political dimension to Ben–Gurion’s hostility to a written constitution. The constitutional issue revealed crucial differences in the political philosophies of Israel’s early leadership. But it also turned into an irritating political wedge between Labor and its opponents.
The failure to resolve these political and ideological differences initiated a long tradition of Israeli constitutional malaise. Within months, the Constituent Assembly—which had been elected with the express purpose of drafting a constitution for the new state—had reconstituted itself as the first Knesset, or parliament, under the provisions of the 1949 Transition Law. Intended as a constitutional stopgap, the Law, which detailed the responsibilities of the legislature and outlined a future “law that would establish the basis for the democratic and republican form of government in the State of Israel,” was passed to grant the Constituent Assembly formal authority while a constitution was being drafted. But once the constitutional development process stalled, the Law took on a pseudo–constitutional character.
What followed was constitutionalism by inertia: the first Knesset’s failure to change the Yishuv–era system of complete proportional representation left it as the country’s default electoral system, through even through today. Meanwhile, the undefined role of the Supreme Court left it virtually powerless, with the Knesset waiting until 1952 to give automatic tenure to the country’s judges. A “Basic Law” on the role and composition of the judiciary didn’t appear until 1984; laws on the constitutional role of the military and freedom of vocation also would not appear until several decades later. Meanwhile, with the death of prospects for a written constitution in the 1950s, the Transition Law and Declaration of Independence remained the State’s two leading constitutional documents.
Ben Gurion’s belief in the constitutional power of political consensus would produce several early, glaring discrepancies. Arabs in Israel had full citizenship and the right to vote, in spite of living under a restrictive military government until 1966. And in a state founded on secular, essentially socialist ideals—and in a time when those ideals had considerable cultural and political purchase with most of the country’s citizens—marriages and conversions were (and still are) governed by religious courts overseen by Israel’s chief rabbinate.
The constitutional lethargy of Israel’s founding period would give way to stretches of constitutional assertiveness. The 1970’s and 80’s produced a spate of “Basic Laws” on the judiciary, elections, territoriality and other issues (although “Basic Law: Knesset” made permanent the Yishuv–era proportional system). In particular, the 80s witnessed the so–called “Judicial Revolution,” in which Supreme Court president Aharon Barak helped form a legal foundation for individual rights—something that had been missing during Israel’s first three decades of statehood.
But Israel’s constitutionalism is far from robust. While the Basic Laws operate as a de facto constitution, they skirt fundamental issues like separation of powers, the intersection of religion and state, and minority rights. Meanwhile, the amendment of Basic Laws requires the agreement of every party in the current ruling coalition. In June of 2008, this allowed the Sephardic–Orthodox Shas party to single–handedly veto a comprehensive reform to the Basic Law: Knesset laws that would have allowed regional elections for up to half of the Knesset—a reform that a majority of Knesset members and all three of Israel’s major political parties supported.
For Israel, the present lack of a coherent constitutionalism affects personal and immediate issues such as marriage and citizenship, state, legislative, and judicial systems, fundamental questions as to Israel’s purpose and ideological orientation. The country’s lack of a constitution translates into a paucity of clearly articulated values that the state represents and defends. And this translates into tangible challenges and problems—especially the growing, potentially catastrophic gulf between Israel’s secular and religious Jews, as well as between its Jewish and Arab citizens.
A single document cannot singlehandedly determine the nature of the Jewish state, or whether it is prepared to view its non–Jewish citizens as full partners in some version of Zionism. But a constitution could clear up some of the very basic ambiguities that currently wrack Israeli politics and society.
In 2003, Tommy Lapid’s secular–Zionist Shinui (or “change”) party won 15 seats in the Knesset based on a platform of strict separation between religion and government. The brief success of an explicitly anti–religious party like Shinui, and the continued success of borderline–theocratic parties such as Shas and United Torah Judaism, speaks to the stilltenuous position of religion in Israeli public life. From a secular perspective, the government’s deferral to the Orthodox rabbinate on issues like conversion and marriage demonstrates the need for an explicitly secular state, perhaps one with a Jeffersonian understanding of religion as “a matter which lies solely between a man and his G–d.” Yet from a religious perspective, the State’s ideology of secular nationalism obligates it towards Israeli rather than necessarily Jewish interests.
This leads to two radically divergent understandings of Jewish statehood. In one camp are Lapid–style secularists who believe that the state should draw its legitimacy and authority from Jewish nationhood rather than from Jewish religious law. In the other camp are religious–Zionist and ultra–Orthodox Jews who view the state as a vehicle for Judaism, and for the values codified in biblical and rabbinic, or halachic (legal), texts. This plays out most dramatically in debates over “Greater Israel”: many Israelis view Jewish settlement and military occupation of the West Bank as costly, impractical, and anti–democratic. But a religious Zionist minority argues that Israel would be betraying its mission as a “Jewish state” if it uprooted Jews living on land within biblical Israel.
Similarly, ultra–Orthodox blocs oppose civil marriage and the official sanctioning of non– Orthodox conversions. Their belief that the government should operate within halachic bounds assumes that the Jewish tradition should have legal status within a Jewish state, and that, perhaps, there can be no Jewish state without some form of formalized religious law. Such a state would cease to be secular or perhaps even national, instead drawing its sense of self–definition from a shared adherence to Jewish values.
Currently, Israel grants enough formal authority to the Orthodox rabbinate to alienate secular and progressive Jews, but the seeming indifference of the Jewish state towards Judaism alienates those who see its secularism as a betrayal of Judaism and Zionism both. This incoherency—which sharpens the divide between religious and secular Jews, as well as between disenfranchised Reform and Conservative Jews and Israel’s Orthodox population—is also a constitutional failure.
Yosef “Tommy” Lapid, a stridently secular Holocaust survivor who led Israel’s Shinui party and served as Justice Minister in Ariel Sharon’s government.
This failure was crystallized in the Supreme Court’s notorious “Who is a Jew?” decision in 1968, in which an army officer married to a non–Jew petitioned Israel’s Interior Ministry to have his children’s nationalities officially recognized as Jewish. The case raised two as–yet unresolved constitutional issues: the tension between the legal status of “nationality” versus “citizenship” in Israel, and the related matter of what kind of formal status the state should convey to religious authority and law. In a bizarre, uniquely Israeli procedural quirk, the Ministry of the Interior relied on a halachic argument, or a religious legal decision, in rooting its refusal formally to recognize the children as Jewish in the religious principle of matrilineal descent.
A Supreme Court whose authority rested on purely secular legal grounds soon found itself adjudicating an issue of religious law. Unsurprisingly, the justices—who decided in favor of the petitioner by a 5–4 margin—avoided comment on what Israeli legal scholar Pnini Lahav calls the case’s “substantive issue of the relationship between Jewish statehood and individual self–determination.” Beyond that basic and still–simmering issue of whether individuals should have any formal (or even informal) obligation towards the maintenance of national identity, the justices failed to address the role of Jewish law in a “Jewish and democratic” state.
It’s a failure that has endured, thanks to halacha’s continuing role in determining the civil status of secular Israelis. In 2007, the Orthodox rabbinate refused to ease conversion standards for the approximately 300,000 immigrants from the former Soviet Union who are not Jewish according to their religious dictates, leaving about five percent of Israel’s non–Arab population in legal and social limbo. According to Ha’aretz, a leading Israeli newspaper, about 50 Israeli women are denied halachic writs of divorce from their husbands each year; because of Israel’s lack of civil marriage, these women are allowed to remarry only in the relatively rare case of a religious court forcing the husband to divorce them. Meanwhile, thousands of Israeli couples who are unwilling or unable to get an Orthodox rabbi to perform their wedding ceremony depart to Cyprus to receive civil marriages each year, marriages which the Israeli government recognizes as valid. Ironically, Israel is one of the only countries on earth where Conservative and Reform rabbis are not permitted to conduct legal marriages.
The “Who is a Jew?” case resulted in a political crisis that ended in religious parties forcing the Knesset into passing a law that denied Jewish status to those without a Jewish mother or an official Orthodox conversion. The law not only undermined the country’s already–fragile system of checks and balances by overruling a Supreme Court decision on a major constitutional issue. It also formalized the state’s presently–untenable relationship between religious and civic life.
A constitution that affirms the state’s commitment to Jewish values without granting them formal legal authority would probably anger Israelis who believe that a Jewish state that compartmentalizes the civic influence of Jewish law is not worthy of the title. Yet in his 1973 book Talmudic Law and the Modern State, former Israeli Supreme Court Justice Moshe Silberg argues that Jewish law could play a foundational role in Israeli jurisprudence, providing a normative framework that can guide legal decision–making without supplanting it altogether. He argues for a legal system that is neither ruled by Jewish tradition nor completely ignorant of it. His vision of a secular legal order inspired—but not dictated—by Jewish law tradition would be a constructive starting point for Israel’s future constitutional framers.
Silberg’s book proves that Israel can retain its Jewish character without jeopardizing “individual self–determination,” and without formally imposing some version of Jewish identity and practice. Israel’s present constitutionalism, however, teeters between imposition and indifference—a balance that the latest Knesset elections proved to be less tenable than ever. The February elections saw the ascendance of yet another radically anti–clerical party: the nationalist, anti–Arab, and anti–religious Israel Beitenu, which drew most of its support from socially marginalized and nominally secular Russian immigrants. Orthodox fears over the newfound political power of a secular–backed, explicitly anti–clerical party produced one of the more bizarre incidents of Israel’s “mud month.” On Feb. 9, Shas spiritual leader Rabbi Ovadia Yosef announced that Israel Beitenu voters “gave strength to Satan.” “They have violated your Torah” Yosef said of Beitenu’s Russian–Israeli base, later adding that “these are people who do not have Torah, people who want civil marriages, shops that sell pork, and the army enlistment of yeshiva students.”
Israel’s secular–religious cleavage has acquired a nasty, ethnically–motivated aspect that constitutional reform probably won’t be able to erase. But it would be an attempt at reaching a compromise between religious and secular interests that isn’t based solely on convenience.
As the religious debate demonstrates, Israeli constitutional history has been, in some sense, characterized by an uncertainty as to whom exactly the state is meant to serve.
The Basic Laws provide a fractured answer. The Knesset Basic Law provided something approximating a constitutional grounding for Israel’s system of representative government, while the land–related Basic Law, and, to an extent, the Jerusalem Basic Law addressed the unique territorial issues facing the Israeli government. But Israel’s survival as a Jewish, democratic state depends upon the creation of some kind of a durable definition of “Jewish democracy,” something that none of Israel’s recognized constitutional documents provides.
The controversy over the attempted banning of Arab parties from last February’s Knesset elections demonstrates that for Israel, constitutionalism is anything but an abstract legal question. In late January, during the height of Israel’s assault on Gaza, the Knesset’s Central Election Committee (CEC) voted to ban the body’s only two exclusively–Arab parties from the next month’s elections, arguing that they violated a standing prohibition against political parties explicitly opposed to Israel’s existence as a Jewish state. Israel Beitenu initiated the ban, although members of every major party supported it. Aside from war hysteria, right and center–right parties were seizing on an incoherency spawned by one of the state’s many inadequate attempts at formal self–definition.
A 1992 update to the Basic Law governing Knesset elections required that all parties support “Israel’s right to exist as a Jewish and democratic state.” Excluded from the political process—at least in theory—are explicitly anti–Zionist or anti–democratic political blocs. According to this law, Arab anti–Zionists, binationalists, religious anti–Zionists, anarchists, or fascist nationalists (such as Meir Kehana, whose Kach party was banned prior to the 1988 elections) have no part in the political life of the state. In reality, Israel’s binational socialist party currently has four seats in the Knesset, while Balad, whose leader is now in exile in Egypt after being accused of aiding Hezbollah during the 2006 Lebanon War, did not have its legality challenged until January’s CEC vote. Thus, one of Israel’s primary legal means of enshrining its Jewish, democratic character allows for politically dominant blocs to alter the boundaries of political inclusion whenever and however they see fit. But it also allows for an unlimitedly lax—although potentially exclusionary—definition of what it means for a party to support Israel’s existence as a Jewish, democratic state.
The Supreme Court’s overturning of the ban only emphasized the systemic elasticity that allowed for the parties to be banned in the first place. Days after the CEC decision, lawyers for Balad and UAL submitted a 500–page brief that, according to the Jerusalem Post, contended that it was “‘extremely unreasonable’ to demand that the parties’ representatives show loyalty to Zionism.” The court swiftly threw out the ban after hearing arguments that directly attacked the 1992 election law. Argued Joseph Jabareen, a law professor at the University of Haifa, “In a real democracy, there shouldn’t be such a law that targets political platforms that are democratic by nature.”
Right now, the phrase “Jewish and democratic” carries almost no legal weight. During the controversy over the Arab political parties, some Jewish parliamentarians unsuccessfully used it as a justification for political exclusion, and then successfully subverted in the interest of political inclusion. Whether “Jewish democracy” is compatible with moderate Arab nationalism on the one hand or radical Jewish nationalism on the other was hardly addressed. And it’s an issue that cannot be resolved until a constitution defines Israel’s political system and reason for being. Right now, Israel’s constitutional system marginalizes secularism and minorities, clings to a discredited and anachronistic electoral system and settles for an ad–hoc constitutionalism that has led to stifling systemic incoherencies and failed to address the country’s major social or political divisions. Israel’s commitment to the traditional liberal values of personal choice and legal equality has been lukewarm. But its seeming indifference to a coherent constitutionalism betrays an even deeper illiberalism. In the first paragraph of the Federalist Papers, Alexander Hamilton drew a distinction between societies ordered through a process of “reflection and choice” and those that “depend for their political constitutions on accident and force.” In a constitutional climate where crucial matters of individual rights and national self–definition have been decided through “accident and force,” it is little surprise that Israel Beitenu, a party which supports the administration of a loyalty oath to Arab and ultra– Orthodox Israeli citizens, is now the third largest in the Knesset.
There is the possibility that Israel’s constitutional deficit is permanent. At the heart of this constitutional inertia is a hesitation towards even defining Jewish democracy at all; at settling on a single, Zionist vision that could be too Jewish or not Jewish enough; too nationalist or too inclusive. Rasan, one of the Israeli–Arab interview subjects in David Grossman’s Sleeping On a Wire, suggests that Israel’s lack of a constitution comes from a lurking fear of what constitutionalism would even mean for a state riddled with these tensions:
If Israel says, I want to be a normal, democratic state with a separation of church and state, where every person will have the right of self–fulfillment, then we can sit down and agree that the president and prime minister always be Jewish, according to the constitution. And we’ll also write a constitution that will ensure the citizen’s fundamental rights, his basic freedoms. And that’s one of the reasons, by the way, that you have no constitution. There will be a constitution. There will be a Jewish majority. But its laws will protect my rights as well.
It will take monumental courage for Israel to reconcile the contradictions of its social and legal history and give some belated resolution to the religious, ethnic and philosophical divides that have stalled the Jewish state’s constitutional development. But as Rasan suggests, Israel’s lack of creative legal thinking has left its society in perilous limbo. Ironically, Israel can only have a “living constitution”—a legal tradition that does something other than stave off the difficult decision–making that is inherent in any constitutional process—when it recognizes that it cannot maintain its perilous Jewish–democratic balance without a written, stable constitutional document. It is something that Israel owes to the citizens that its current constitutional disorder marginalizes, and something that it owes to anyone concerned with the survival of the Jewish state.
ARMIN ROSEN, List ‘10, is a Senior Editor of The Current.
Above: Independence Hall in Tel Aviv, where David Ben–Gurion pronounced Israel’s Declaration of Independence in May 1948.