Constitutions

By Yehudah Mirsky
Monday, June 28, 2010

Among the issues brought to the fore by the recent crisis in Israel over ultra-Orthodox (haredi) schools is the unresolved role of the state's judiciary. Israel has no written constitution. To some, the absence invites disaster. To others, it is what holds Israel together as a Jewish and democratic state.

Efforts at constitution-writing in the years immediately prior to and after Israeli statehood came to naught for several reasons, prominently including the inability to find or even imagine formulas for striking a sustainable balance between religion and state. But Israel does have a robust and raucous democratic culture. It also has a series of "Basic Laws" laying out the structure of government and guaranteeing rights and liberties. In the absence of a constitution, the judiciary has used those laws to develop American-style doctrines of judicial review and civil and minority rights.

One Israeli minority, the ultra-Orthodox, has seen things differently, however.  Swelling in size and assertiveness, it no longer takes for granted the "status quo" that for decades has governed religion-state relations. Indeed, it has come to view the judiciary, and especially the Supreme Court, as its enemy, both for the liberal values the Court seeks to enforce and for its challenge to the primacy of rabbinic law and da'at Torah, a much-disputed doctrine of rabbinic supremacy in matters of governance and public policy.

There is a history here. Through the many centuries of Jewish statelessness, non-Jewish legal and political systems were accepted and legitimized through a talmudic principle, dina de-malkhuta dina, literally, "the kingdom's law is the law." (To be sure, when it came to religious matters and intra-Jewish civil disputes, having recourse to Gentile courts was severely frowned upon; Jews may not have had sovereign institutions, but they had courts and laws of their own.) But what of secular courts in a Jewish state?

Many haredi Jews regard these courts as singularly illegitimate, grounded as they are in the heresies of Zionism and secular ideologies. The suggestion that in defending minority rights generally, the judiciary defends the ultra-Orthodox as well, is dismissed as meager recompense for the Court's seeking to thwart haredi agendas and prerogatives.

Other currents are at play as well. Religious Zionists, for their part, have historically entertained a positive, not to say romantic, view of the state. For many, however, the romance ended with Ariel Sharon's disengagement from Gaza in 2005. The same occasion sidelined a joint effort by Yaakov Medan, a prominent religious Zionist rabbi, and Ruth Gavison, a leading jurist (and distinguished critic of the Supreme Court's overreaching), to promote a new covenant  aimed at calming the roiling waters of religion's relationship to the state.

As for a constitution, several potential versions have been put forth by bodies including the Israel Democracy Institute and the Institute for Zionist Strategies.  Proponents and critics of the initiative exist on both sides of the aisle. One key question is whether the benefits of a constitution would be outweighed by the inevitable price to be paid in formalizing the power of the current rabbinic establishment. Another is whether Israeli society can survive the ratification debate, which is bound to bring to the surface the most wrenching questions of national and religious identity. 

In the American context, the moral purposes of constitutionalism are deeply linked to procedural values; freedom of speech, association, and religion are corollaries of the rules of the road that enable American democracy to function, thus also serving as a sound basis for judicial review. Israel operates with a much thicker sense of moral purpose and of religious and national identity, but one that is interpreted in radically different ways by different sectors of society. While the arguments over Israel's judiciary may seem to parallel American debates over judicial review, the existential stakes involved and the deep, deep gulfs among the parties make the American debates seem like bean bag.

Even to admirers of the U.S. Constitution, a document that, inadvertently or not, would freeze and institutionalize Israel's entrenched domestic differences might be thought worse than no constitution at all.


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