Democracy in Israel
Israel’s Emerging Constitution, 1948-1951.
by Emanuel Rackman.
Columbia University Press. 196 pp. $3.00.
Virtually the only writing in English critical of Israel has been produced by anti-Zionists, Zionist writers for the most part studiously refraining from public criticism (Maurice Samuel is the most notable exception). Against this background, Dr. Rackman’s book is unique, important, and bravely candid.
Dr. Rackman has undertaken to present a coherent, analytical description of Israel as a working state in terms of the legislation that governs it. He discusses the several drafts of the indefinitely deferred Israel constitution, and the principles, directions, and specific legal precedents of Israel’s legislation during its first three years. He deals painstakingly with both enacted and rejected bills, and with all the debates around them. Since jurisprudence touches on almost every sphere of human endeavor, he manages to embrace within his consideration the whole complex of the new state’s life—its traditions, behavior patterns, and dilemmas.
An assistant professor in political science at Yeshiva University, an officiating Orthodox rabbi, and a Zionist of the Mizrachi persuasion, Dr. Rackman writes with starling objectivity even on things as sensitive as the right relation of Israeli law to Torah, or the so-called church and state problem in Israel. This is one of two major problems affecting the very nature and future of Israel that are treated in this book. The other is the status of civil liberties in a country that has lived in a state of war since its birth seven years ago, and for this reason has vested unusual emergency powers in the executive branch of its government.
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The large area of jurisprudence known as “personal staus” law is today the exclusive province of the ecclesiastical courts in Israel; marriage, divorce, and the legitimation of offspring require the sanction of the clergy. This interrelation between civil and ecclesiastical jurisprudence has to some extent influenced even public law, as illustrated by the army’s kosher kitchens and the restrictions on pig farms, and by the shutting down of harbors and airfields on the Sabbath, and the suspension of railway service and all interurban and most urban bus traffic.
However, Dr. Rackman advises liberals who urge adoption of the American pattern with respect to the relations of church and state to “consider the unique situation prevailing in Israel’s legal order . . . a picture that must first be understood before panaceas can be offered.” He recalls that the authority of the ecclesiastical courts was not vested in them by Israel, but dates back to a legal attitude established under the Turks and the British Mandate. He points out, moreover, that “The United Nations General Assembly resolution required that the constitution of Israel respect the law of family and personal status . . . of the several religious minorities in the new state.” Hence the present Kulturkampf in Israel involves not only the Israelis, but also the UN, and the enactment of civil marriage and divorce in Israel might even precipitate a holy war in the Middle East. To preserve certain rights for Moslems and Christians while abolishing them for the Jews would be an incredible act of schizophrenic discrimination against irreligious Christians and Moslems, and against Orthodox Jews. And to set up, as the late Hayim Greenberg once proposed, civil courts for the general citizenry, while preserving the religious courts as semi-public institutions for those who wanted them, would, in Dr. Rackman’s view, only exacerbate an already difficult situation.
Should the civil courts “apply the rules of the religious courts which might have had jurisdiction over the parties, Greenberg’s objections [to imposing the authority of the religious courts upon the non-religious] will not have been answered,” Rackman writes. “If they apply a new and special set of rules, then there has been added to the already numerous jurisdictions a civil one which compounds the chaos in every religious community. . . .”
The American liberal should also remember, as is evident from Dr. Rackman’s book, that religious marriage and divorce, which the liberal regards as an imposition in Israel, is abided (by cheerfully by a majority of the Jews in America, who have free choice in the matter. This is written with due regard for the fact that conditions to which one submits by choice become offensive if imposed by law.
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The peril to civil liberties in Israel arises, as Dr. Rackman sees it, primarily from the usurpation of the prerogatives of the legislature by the executive branch, and from the absence of firm constitutional principles providing for the judiciary’s intervention in such event. The Fundamental Principles of the first Knesset, for example, made freedom of speech and assembly conditional on “due regard for the security of the state, its freedom and independence, as well as respect for private rights.” Dr. Rackman says that this “unfortunately is very broad,” and that “it almost negates the right altogether.” He is surprised that the Israelis do not seem to fear that the “extension of government action” might “lead to the decline of freedom,” and that their country “might ultimately become totalitarian.” He adds: “Can it be that this type of alarm prevails only in countries where the rich are numerous and can induce it? Or is it the fact that most Israelis are reconciled to the ‘ingathering of exiles’ and understand that to fulfill this program the state must act on many fronts?” (We have moreover seen in recent years, and most recently in the Kastner case, that the judiciary can function with real independence.)
The potential threat to liberty may be very real, but Dr. Rackman seems to be writing out of the disillusionment of American liberals with extensive social planning when he suggests that the threat derives inherently from the welfare state. What must really concern us, however, are his disclosures of the woeful lack of sophistication on the part of Knesset members of all parties as to things democratic. This, rather than the welfare state, is one of the sources of possible trouble. He summarizes, for example, the views expounded by Meir Grabovsky (Argov), now Mapai chairman of the Knesset Foreign Relations Committee and one of his party’s chieftains, during the constitutional debate: “His misgivings about democracy caused him to urge even the curbing of freedom of expression; an unbridled press—even the unbridled use of placards—is hardly conducive to the best political education of the masses. To the use of the referendum he was violently opposed.” Argov’s opposition to frequent elections was sound, practically, but his arguments and principles were all wrong and echoed the sentiments of the Nativists in America in the last decades of the 19th century. Argov, according to Rackman, “asserted . . . that frequent elections and referenda would only cause them [the newcomers] to retain party loyalties acquired else-where instead of becoming assimilated politically into existing party frameworks.” These statements reveal Argov as possessing a low democratic quotient, but an impressive capacity for political prognosis, for he clearly anticipated the reverses suffered by Mapai in the recent Knesset elections.
Dr. Rackman is on quite solid ground when he points to another source of danger to personal freedom in Israel—the political parties and functionaries and their vested interests. In Israel, legislative initiative is almost wholly out of the question. Government bills generally originate, as in Britain, with the various ministries—net as a matter of law, but of practice. But under the system of proportional representation on a national scale, the legislator is not responsible to a geographically defined constituency. The Knesset member’s exact place on his party’s ballot determines his election and the party can lower a candidate’s position on the ballot, or drop him altogether without consulting any but its own interest.
Dr. Rackman suggests that the multi-party system and the introduction of district elections might secure a more democratic procedure. Now Ben Gurion is as impatient as anyone with vested party interests, yet one cannot be certain that his grasp of democratic procedures differs radically from Argov’s. He himself has inspired some of the arbitrary emergency legislation passed during the three years under review in Rackman’s book. And American experience indicates that district elections can sometimes actually accelerate the corruption of democratic processes. Dr. Rackman’s assumption that some such mechanical solution can secure a people against the perils inherent even in the best legislation is much too sanguine, even as he is inclined to underestimate a democratic people’s ability to live within the democratic pattern no matter how loosely worded and unqualified its laws might be.
The actual perils to democratic procedure in Israel are scarcely constitutional; they are more “sociological” and historical. The East European pioneer, the Central European survivor of Nazi rule, the Oriental Jew from the casbah, and the sabra veterans of the struggle against Mandatory rule in Palestine, had all learned to persevere by means of a Jewish communal ethos outside the pale of governmental law. While they are quite capable of endless accommodation, they are by this time, by temperament and training, indisposed to take official law as of too serious consequence in their private or communal lives.
Another peril is the upper-echelon government bureaucracy. The party functionary, deriving his strength from the rank and file of his party, may be annoying, irritating, and even exasperating, but he is not really dangerous. The upper-echelon bureaucrat who has won favor with large sections of American Jewry may, on the other hand, become a real threat, especially since Israeli finances still depend on American generosity. This is not because Israel is a welfare state, but because, like its legislators, it has to acquire greater democratic sophistication.
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Dr. Rackman’s book has two defects that flow from his initial approach. He is an American liberal writing on law; hence there is an overemphasis on written law and too little emphasis on the living conditions of Israeli democracy and the patterns it projects into the future. Dr. Rackman conveys the impression, moreover, that, except as to church and state relations, Israel should transplant American legal patterns wholesale. One has to bear in mind, however, that law must be tailored to the specific needs of specific peoples, and in Israel, where half the population has lived in the country less than seven years, and where a great proportion of the population does not yet really belong to the country, the nation must be born before it can evolve a constitution. Strangely (or rather not strangely at all), the only law all Jews in Israel have in common, as a memory if not as a living experience, is religious law.
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