If we were to compare our sovereign existence to the life cycle of a person, we might say that Israel has made it through infancy and childhood with flying colors: We have ingathered the exiles, created a formidable national security architecture, nurtured a flourishing economy, reconstituted our culture, and established a democratic political system with liberal characteristics. We have survived the common childhood diseases. But in the current generation – and especially now in the country’s eighth decade of independence – Israel is experiencing the typical torments of adolescence: a radically and dramatically judgmental attitude toward others; turmoil, confusion, and instability in coming to grips with reality; the impulse to test limits; and a broadening of the emotional range, sometimes to a disruptive degree.
In its childhood, Israel was a “consensual democracy.” There was basic agreement between the different sectors regarding the state’s vision and goals. In its adolescence, however, Israel has become a “democracy in crisis,” marked by disagreement and constant conflict between different conceptions of the common good. The discord persists along the national divide, between Israel’s Jewish and Arab citizens; across religious fault lines, between secular, traditional, national religious, and ultra-Orthodox Jews; on the social front, between center and periphery; and at the cultural level, between liberals and conservatives.
The severity of the crisis stems from the fact that unlike most multicultural countries – where each population group strives first and foremost to protect its own interests and has no aspiration to dictate the national outlook as a whole – in Israel every group has a vision that it wants to instill and impose upon everyone else. The controversy relates to the common destiny, not just to the common good.
After the tumultuous crisis of its adolescence, will adulthood arrive with all the balance and discernment that characterizes maturity?
Israel’s identity crisis is not resolvable in the foreseeable future. It can be argued that Israel’s ideological diversity is a paradoxical source of wealth – “riches kept by the owner thereof to his benefit.” But in order to progress from adolescent turbulence to adult equanimity, we need to achieve a pan-Israeli consensus regarding the rules of conduct and decision-making on the basis of which we will manage our identity dispute. As long as it is impossible to reach a common vision that would enable the enactment of a full constitution, it is appropriate to take a second-order approach to the controversy: rules of the game that, while not silencing any of the participating voices, will nevertheless promote an Israeli public life marked by social solidarity and cooperation between the different segments of society. These rules of conduct and decision-making are the substance with which, in my view, Israelis need to imbue the uniquely Israeli term mamlachtiyut, which roughly translates as statehood – the idea of setting aside partisan differences for the sake of the state.
In an era of culture war, the mamlachti approach obliges the parties to the dispute to commit themselves to inclusivity. This inclusivity rejects fundamentalist demonization of the other, is not zealous for a particular vision, does not view Israel as a battleground of all against all, and is capable of acceptance in the sense of affording full legitimacy to conflicting visions. A mamlachti code of state conduct should include a ban on incitement, boycotts, loyalty-versus-treason rhetoric, and other offensive language that undermines the legitimacy of the other.
Mamlachtiyut is supposed to enable Israelis not only to manage their disagreements in a mature fashion, but also to decide their outcomes, when necessary, in a mature way. As is well known, in the past generation identity disputes – which are supposed to take place in the marketplace of ideas and in the political sphere – have steadily drifted into the legal arena in Israel. There the dispute is conducted in normative language – a discourse of rights – with the aim of reaching a determination. But besides the fact that a rights discourse is unsuitable for managing identity conflicts, due to the nature of that discourse, the judicialization of the culture war is poisoning the relationship between large swaths of the public and the judicial system. Mamlachtiyut must therefore also regulate the manner in which the rights discourse seeking to decide the controversy will be conducted. It must affirm that the three branches of government when exercising their powers in legislative, executive, and judicial activity, are charged with the responsibility of respecting the identity stratification and ideological diversity that characterize Israeli society. The future of the rule of law in Israel depends on the success of all the branches of government in conveying to the Israeli public the message that they conduct themselves fairly when encountering ideological adversaries.
The legislative branch must exert legislative authority in a way that eases the sense of alienation felt by those who are not part of the hegemony and avoids a “winner takes all” agenda. The Knesset majority must avert frequent changes to the Basic Laws, which are part of our nascent constitution. Israel does not have a full constitution or bill of rights. In this sense, Israelis live on shifting sands. Mamlachti Knesset members have to be sensitive to this and submit to the basic norms of liberal democracies, even if they are formally authorized to discard them.
The executive branch, in exercising its power – the strongest form of governmental authority vis-à-vis the individual and the public – must strike a balance between the aspiration to implement a preferred policy (for which purpose elections are held) and the restraint required in light of the needs and sensitivities of groups outside the governing coalition.
This is even more true regarding the judiciary. The judicial branch is not elected by the public and is not meant to promote the identity preference of a specific group, and so the demand that it respect the ideological controversy and refrain from determining its outcome is even stronger. Indeed, the big question now reverberating in Israel is how to regulate the exercise of judicial power in light of the court’s involvement in the identity discourse. A judicial system aiming to meet the challenge of mamlachtiyut must recognize the important distinction between issues that are the province of politics and those that are the province of law. The court must recuse itself from deciding issues of the first type.
The right way to ensure that the three branches of government meet the challenge of mamlachtiyut is to enact a “thin” constitution. This differs from a full constitution in that it does not include sections pertaining to the identity of the state and basic human rights – about which, at this moment in adolescence, it is not possible to agree – but only a section dealing with the relations between the branches of government. A thin constitution would contain chapters that bring together, with adjustments, the existing Basic Laws – those pertaining to the president of the state, the Knesset, the government, the judiciary, and the state comptroller – with the addition of what is lacking today: Basic Law: Legislation. The constitution would stipulate that the arrangements set forth in it will be safeguarded so that any change or amendment could be made only with a two-thirds Knesset supermajority. Such a constitution would lay out the rules of the game by which the ideological dispute is to be conducted. It would subdue the current fracas between the branches of government over their powers and over the ability to decide the present Israeli controversy, and it would do this without silencing any of the ideological camps that are party to the controversy.
The actual collective picture is better than the image Israelis have of themselves. The identity crisis casts its shadows on Israel’s sovereign existence, and their gravity should not be downplayed. Israelis can cope with them with a broad national consensus that transcends identity camps, and by adopting a mamlachti approach toward both the management of the identity struggles and how they are to be decided. This is the bridge from adolescence to adulthood on which the State of Israel will be able to walk in the next generation. ■
The writer is president of the Jewish People Policy Institute and professor emeritus in the Faculty of Law at Bar-Ilan University.