Should Israel be democratic? Maybe it never fully was

Democracy is a respected Jewish value, that may be constrained. This is also the approach adopted in many other societies, including in the US.

December 24, 2014 21:41
The Committee of Five presents the Declaration of Independence

A painting by John Trumbull depicting the Committee of Five presenting their draft of the Declaration of Independence to Congress, June 28, 1776. (photo credit: Wikimedia Commons)

Israel’s president, Reuven Rivlin, told the Globes 2014 Israel Business Conference that, “I’m concerned the public won’t go to vote because it no longer believes, and that perhaps there will be those who say that democracy is not beneficial.” As Israel appears to be gearing up, once again, for expensive general elections, it might be fair to ask, “Is a democracy best for Israel? To answer this question, first we need to ask another: what do we mean by “democracy”?

Rabbi David Rosen wrote, “The Alexandrian Jewish philosopher, Philo Judaeus, described the polity of Judaism as a ‘democracy.’ Philo of course does not use the term in the modern sense of a government elected by the whole populace, but rather defines democracy as a system that ‘honors equality and law and has justice for its rulers.’” We, too, understand democratic to mean equitable treatment under the law. Everyone agrees with that, and Israel’s democracy is exemplary under this definition. Indeed this form of democracy arguably evolved from Jewish values. US ambassador Rabbi David Saperstein, ambassador-at-large for international religious freedom, sees “manifestations of proto-democratic institutions” in Judaism, including four values he sees as necessary for democracy that are found in Judaism’s view of human society: That all people (not just Jews) are created in the image of the divine and are therefore of inherent dignity and value; the equality of all peoples; the belief in the rule of law to which even the highest rulers are held accountable; and the autonomy of human beings to choose between good and evil (freedom of choice and the exercise of conscience) that provide a moral justification for the right of people to determine their political destiny.

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But is democracy in the sense of majority rule also a Jewish value? The Talmud determined that a majority of scholars would determine the law, rather than an appeal for heavenly intervention (BT Bava Metzia 59b). David Weiss Halivni points out an important caveat to this, however: “One must not incline after the majority for the purpose of perverting justice.”

Indeed in the Talmud the majority generally prevailed, but as the Mishnah in Eduyot 1:5 wonders: “Why do they record the opinion of a single person among the many, when the halachah must be according to the opinion of the many?” It responds, “So that if a court prefers the opinion of the single person it may depend on him.”

The rabbis included minority and majority opinions in the Talmud, in one of history’s first efforts to institutionalize a free marketplace of ideas (which is vital for democracy to function), and that the halacha is not static but evolves.

Democracy is a respected Jewish value, that may be constrained. This is also the approach adopted in many other societies, including in the US.

WE HAVE also to distinguish between abstract, theoretical democracy and the forms of democratic government actually attempted. In a democracy, the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system. The two main systems used to implement democracy are popular or direct democracy, as first practiced in Athens in the 6th century BCE, and indirect or representative democracy, which provides for universal suffrage, political franchise (including the right to vote for representatives), initiatives and referenda.

Even in Athens, it was not one person, one vote. Not even close. Suffrage was far from universal.

Only 10 percent to 20% of the inhabitants participated. But for those eligible to participate, and for 186 years, the citizens of Athens governed themselves, debating and voting individually on issues great and small, from matters of war and peace to the proper qualifications for ferry-boat captains, in a system at best suited to a city-state. This idealistic system did not last long. As the historian Thucydides (c.460-c.400 BCE) commented, “It was in theory, a democracy, but in fact it became the rule of the first Athenian.”

The US practices a more limited form of representative democracy called a republic.

It was designed to overcome the chief and distinguishing feature of a democracy: rule by omnipotent majority. In a democracy, the individual, and any group of individuals composing any minority, have no protection against the unlimited power of the majority. This is true whether it is a direct democracy or a representative democracy and leaves wide open the door to unlimited tyranny-by-majority.

The term “republic” derives from Roman practice, where the executive is legitimized both by a constitution and by popular suffrage.

Philosophers and politicians advocating for republics over the years include Niccolò Machiavelli, Montesquieu, John Adams and James Madison. All were concerned about tyranny by the majority, a concern shared by the framers of the United States Constitution who during the constitutional debates condemned the “excesses of democracy” and “abuses under any Democracy of the unalienable rights of The Individual by The Majority.” As Thomas Jefferson famously thundered, “173 despots would surely be as oppressive as one.”

In the US, The Connecticut Compromise of 1787, engineered by Roger Sherman and Oliver Ellsworth, provided for two houses for the proportional representation in the lower house, but required the upper house to be weighted equally between the states. The US president is indirectly elected through the Electoral College. This was also the traditional system for electing the Sanhedrin, the Jewish High Court in Temple times, and is also the system used for electing Popes.

Today, the number of electors in each state (equal to two senators plus the number of representatives in the House or a minimum of three) gives somewhat more weight to the smaller states, just as the founding fathers intended, with a total of 270 votes needed for election. On four occasions, a president was elected without receiving a majority of the popular vote. The winner-take-all manner of allocating a state’s electors generally decreases the importance of minor parties.

Israel, if anything, suffers from the opposite malady – tyranny by minority parties and special interests, whose consent is needed to cobble together a coalition of at least 61 Knesset seats in order to form a government. Israel has been addressing the problem of tiny parties by steadily increasing the threshold or minimum number of votes needed for any party to be elected. It’s currently set at 3.25% (four of 120 Knesset seats), up from 1% in 1988. Israel uses the closed list method of party-list proportional representation where citizens vote for their preferred party and not for any individual candidates. Each party internally selects 120 candidates and rank-orders them; the elections determine which of elected members is drawn for each party. The new threshold, however, in comparison with many other countries is still low and more favorable to minor parties. It results in greater instability.

Nominally elected for four years, Israel is now electing its 20th Knesset since 1948.

Israel has taken baby steps toward a constitution, passing piecemeal 12 basic laws that together form a partial constitutional framework and which take precedence over other legislation. Currently being much debated is a proposed Basic Law: “Israel as the Nation-State of the Jewish People.”

Clashes between a secular constitution and halacha (and many other, mostly social issues, as well as the inevitable “whose ox will be gored by this change?” question) have impeded the drafting of an Israeli constitution since 1950. Beginning over 100 years ago, when he was only 26, Rabbi Dr. Isaac Halevy Herzog (1888-1959), chief rabbi of Israel from 1936 to 1939, tried valiantly to synthesize those aspects of halacha considered relevant to “non-religious” or “secular” law, such as property rights, damages (torts), contracts, and so on, with secular law. He hoped that would form the basis for a constitution. His efforts were erudite but less than successful. Israeli law evolved more from British and Ottoman common law, with the exception of family law. Supreme Court justice Menachem Elon continued Rabbi Herzog’s efforts, which were notably opposed by justice Aharon Barak.

SO IT all comes down to this: Israel has never been, since its founding, an Athenian-style democracy, and without a constitution cannot be a republic. Arguably, a republic, where the government is constrained by a constitution, is an ideal form of government for Israel, and many hope that basic Torah principles can be incorporated into such a constitution.

So if Israel is neither an Athenian-style democracy nor a republic, what is it? I argue that the present situation is – at best – barely controlled chaos, in many ways like the days of the biblical Judges (17:6), when “ there was no king in Israel; every man did that which was right in his own eyes.” The situation is just shy of hefker, anarchy.

Can anything be done? Perhaps a constitutional convention might work. It took the US from a 1776 “Resolve” by the Second Continental Congress until 1787 to secure the approval of 12 of the 13 original states (Rhode Island declined to send delegates) for a “Grand Convention” on “the second Monday in May next.” It took a further 20 months of hard work for it to be ratified.

The Founders had serious disagreements to resolve, chief among them questions surrounding slavery, a veritable can of worms.

That can, in typical government style, was kicked further down the road. In a compromise, the slave trade was allowed to continue for 20 years, after which time the Congress could regulate it. Thus, after 1808, Congress could abolish the slave trade and it did, prohibiting the slave trade effective January 1, 1808. (The other major issues were “states’ rights,” trade and adequate protection for smaller states and individual rights.)

After much debate (well documented in the Notes of James Madison) the US Constitution, a brilliant federal organization characterized by compromise and an intricate system of checks and balances, was signed by 38 of the 41 delegates present on September 17, 1787. It was a veritable bundle of compromises. Under Article VII, however, the document would not become binding until it was ratified by nine of the 13 states.

That only occurred on June 21, 1788. On September 25, 1789, the first Congress of the United States adopted 12 amendments to the US Constitution – the Bill of Rights – and sent them to the states for ratification. Ten of these amendments were ratified in 1791. In November 1789, North Carolina became the 12th state to ratify the US Constitution. Rhode Island resisted ratifying the Constitution until the US government threatened to sever commercial relations with the state. Finally, on May 29, 1790, 14 years later, Rhode Island voted by two votes to ratify the document becoming the last of the original 13 colonies to join the United States.

I mention all this detail, little remembered today, to give you a flavor of how difficult it was to ratify the oldest written constitution in operation in the world. Not one of the members of the Philadelphia Convention got exactly what he wanted.

IS THERE hope for a constitutional convention and constitution for Israel? The challenges, like those that faced the US Founding Fathers, are myriad and hard to bridge. Some, like the Jewish nature of the state, can be deferred. Others, like proportional representation protecting minorities from the tyranny of a majority, might be solved the same way as the Founding Fathers did it, with a bicameral legislature. One house might be elected based on local geographical districts, comparable to the US House of Representatives. The other might be elected nationally by voting for parties, with the prime minister directly elected to a four-year term (with a maximum of two consecutive terms) by all the voters.

Any constitution needs to clarify the respective powers of the executive, legislative and especially judicial branches of government, and the separation of powers.

It might also usefully clarify impeachment as well as the “enumerated powers” of the Knesset. The US Constitution has 30 in all (or up to 35, depending on how you count), many of them listed in Article I, Section 8. Other powers of government left up to local (or perhaps regional) government.

A constitution is not a panacea, and would surely not solve all societal ills. But it certainly would ensure greater stability in government and provide greater clarity in the operating rules of the legislature and courts, and the conduct of representative elections, all much needed. I am not a constitutional scholar; you may have better suggestions.

Can an Israeli constitution even happen? Even a Basic Law requires an absolute majority vote of the Knesset (61 votes) to pass. In Israel’s fractious society, that itself might be a significant but not insurmountable impediment.

As Professor Ruth Wisse reminded us, David “Ben-Gurion once said he was prime minister of a country of prime ministers, implying that Jews are hyper-democratic.”

As Rabbi Tarfon taught: “It is not your responsibility to complete the task [of perfecting the world], but you are not free to desist from it either” (Avot 2:16). And as Hillel used to say, “If not now, when?” (Avot 1:14).

The author is a writer and former entrepreneur. He has six published books including Evernote For Dummies, V2, has nearly completed his first novel, about the Jewish treasures in the Vatican’s secret archives, and is hard at work on a book about the Talmud for general readers.

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