Pluralism in Israel:
From Covenant to Social Compact
Daniel J. Elazar
Democratic Consent and its Contradictions
How
does a democracy resolve its contradictions? Without confronting
this question it is difficult to consider the problem of
pluarlism, especially in Israel.
Let me start by stipulating two points. One, that a modern
democratic polity rests on the consent of its citizens and must,
if it is to be a democratic polity. Indeed, as we have seen very
recently in Eastern Europe, any kind of modern polity has to have
a sufficient consent of its citizens for its regime to survive.
Second, let me also stipulate that there are inevitably
contradictions, that there are problems in governing any polity,
no matter how democratic, that are problems for a democratic
theory. Without considering the special situation of Israel, we
have at least three "normal" contradictions. First, we have
issues of human nature, namely that there is some need for the
possibility of coercion to keep civil society in order. Second,
we have issues of safety, or security, which at some point
necessitate restrictions on the freedom of individuals. This is
a problem that market economists face as well. However efficient
the market, not everybody perceives their self-interest rightly,
nor is everybody willing to abide by the rules. The same thing
is true in democratic states. However far one might get with
voluntary cooperation on the part of 90 percent or more of the
population, there will be some who will not play by the rules and
whom the 90 percent must be able to coerce, at least in the hope
that the threat of coercion will keep them in line even without
its use.
The third normal contradiction is not so much a contradiction
as the fact that democracy has two dimensions. Democracy is
self-government and democracy, certainly modern democracy
emphasizes the protection of individual rights. While this is
not necessarily a contradiction, it does mean that there are two
faces of democracy that have to be considered. To think of
democracy only as the latter, as has frequently become the case
with contemporary democratic theorists is, it seems to me,
problematic.
In addition, we have the special contradictions which Israeli
democracy faces. One is the contradictions that arise from its
being a state of Jews that seeks in some way to be a Jewish state
and must confront Judaism. A second is the fact that it is a
state that has to confront a situation of two peoples claiming
the same land, each of whose claims are fundamentally exclusive,
even if one people, and now maybe both have reached a position
where most of them recognize their inability to carry out that
fundamentally exclusivist claim in practice. I would like to
discuss both these sets of contradictions and then talk about
ways in which we might start an exploration as to how to build a
political philosophy to deal with them.
With regard to the normal contradictions, it seems that the
twentieth century has learned a lesson from the experiences of
the nineteenth century, that every society is ultimately a civil
society. The nineteenth century view that "society" was the
comprehensive category, somehow embracing government but able to
exist apart from it or beyond its scope, has turned out to be
incorrect. Today, we are more prepared to go back to
pre-nineteenth century theories of one kind or another -- that
every society is inevitably a polity or a civil society. I make
a distinction between polity and civil society here because in
polities, in the original sense of the term, there was no
distinction between the governmental and the social, that a
proper polity was a seamless web. (This is the understanding in
classic Greek thought, whether it was the case in practice in
certain Greek cities is a different question.)
The idea of civil society emerged in the seventeenth and
eighteenth centuries. The political philosophers of the time
came to see society as civil society, namely that every society
is established through one or more political compacts which
provide for a governmental dimension, but also guarantee space
for individuals to be free of government, for a private dimension
within the framework of civil society. This combination of
emphasizing the political frame of socail organization along with
the existance of private space is one of the major revolutions
brought by modern political thought.
In the nineteenth century the stylish ideologies took matters
a step further away from the Greek or medieval polity. Every
major ideology of the nineteenth century not only rejected the
notion that society had to be a polity but also that it even had
to be civil society. Marxism saw government -- the state -- as
something that would wither away once the revolution of the
proletariat was accomplished. Anarchism saw the state as
immediately bad, as inevitably bad, because it interfered with
the true goodness of human nature and prevented that true
goodness from coming out. Laissez-faire saw in the work of the
market, a replacement for government. Every single ideology of
significance in the nineteenth century can be said to have looked
to the automatic society, to a society that would function
without coercive institutions of government. All of those
ideologies have failed as satisfactory vehicles for establishing
political order and safety, security and rights, so that we have
to agree on the need for government.
There is a special problem here with regard to dealing with
the normal contradictions and that is, what understanding of
democracy do we use? I would suggest that there are basically
three understandings of democracy that are prevalent in the
contemporary world. One is collectivist democracy. Lately,
since the 1960s, it has been called participatory democracy.
Everybody sits around and collectively reaches some kind of a
consensus in decision-making. In Eretz Israel it was certainly a
very prominent aspect of the original kvutzot and kibbutzim.
The second, I would suggest, is Jacobin democracy which is
essentially an application of Rousseauian concepts of the general
will with the added dimension that if the general will is not to
be determined by 50 percent plus one vote -- and the reason it
cannot be is that a state cannot rely upon popular majorities to
be right -- then the state needs a guiding elite that will define
the general will, which is the position the original Jacobins
took during the French revolution. As Talmon and others have
appropriately and effectively argued, this view is the basis for
at least the form of totalitarian states.
The third is what I would call, after the writings of the
founders of the United States, federal democracy, using federal
not only in its eighteenth century sense but in its seventeenth
century sense of covenant, that is to say, a democracy which is
established by covenant or compact that expresses itself through
the diffusion of power, through an understanding that there is no
general will or permanent majority in civil society but, rather,
that all members of the body politic have interests and concerns
which converge and diverge at different times under different
conditions, so that, in any polity, everybody is part of many
minorities for some purposes and majorities for others. The
latter are essentially coalitions of minorities that change from
time to time, fairly frequently on some issues, and so,
therefore, any efforts to make decisions on a collectivist basis
or through a guiding elite are bound to injure the democratic
rights of some significant segment of the population. I do not
think that we articulate these different understandings of
democracy sufficiently in our discussions of democracy; we
usually leave these as unstated premises which is why we
generally talk past each other on these matters.
The Special Contradictions of Israel
Turning now to the special contradictions of Israel, let me
start with the problems of state, democracy, Jews and Judaism.
It seems to me that the most concrete and pressing questions
confronting us are: What should be the status quo or should there
be a status quo? What is the relationship between individual
liberty and the desire to maintain a Jewish content in the public
space of the state? What about the Law of Return as a barrier to
being a fully democratic state?
The real problem in confronting these issues is not the fact
of a Jewish state but the lack of consensus within the Jewish
state as to what it should be. Were Israel a state in which there
was a substantial consensus about what constitutes Judaism, I do
not think we would have problems of Judaism and democracy.
Indeed, I think that we would not have any insurmountable
problems in reconciling the governance of the state and halakhah.
There are people of impeccable halakhic credentials -- for
example Rabbi Chaim Hirschenson, who, on paper, did a fine job of
reconciling a modern state with a fully, one might even say
ultra-Orthodox (at least for his time) understanding of halakhah
over 60 years ago. The problem is that there is no agreement on
the need to do so or the desirability of doing so.
Nor is the Law of Return a problem, per se. Every state
recognizes certain privileged people, born outside of its
boundaries, who are entitled to automatic citizenship. For
example, the children of American citizens born outside of the
United States are entitled to American passports and can go to
the United States freely while their peers, who were born in the
same place at the same time but do not have that fortunate or
unfortunate advantage, cannot do so. France holds to the
principle that one can never cease to be a French citizen or a
national. Frenchmen born outside of France even elect two
Senators to the French national legislature. Other states take
the same position. So this problem, in essence, is the lack of
consensus with regard to the need or the desirability of such an
arrangement for Jews as Jews.
Much the same thing is true with regard to the question of
democracy and the two peoples in the land. Here I think the lack
of consensus is based upon a failure of will in two groups. Let
me make it clear; I do not refer to the lack of consensus between
Jews and Arabs -- the consensus between Jews and Arabs has not
even begun to form -- but to the lack of consensus within Israel
with regard to what position Jews should take vis-a-vis the
Arabs, the Palestinians, the other people in the land. This lack
of consensus is a relatively new thing. I think that there was a
far greater consensus with regard to what to do with the Arab
inhabitants of the land before 1967 than subsequently. The
consensus underwent several changes over the years but the fact
that those who were outside the consensus, such as Brit Shalom
and, at certain times, Hashomer Hatzair, were so clearly so, was
a sign that the consensus was very broad indeed. This consensus
was shattered after the 1967 war, certainly since 1973. In my
opinion, this is because of a failure of will in two groups. I
use the phrase "failure of will" deliberately; even though it is
a very problematic term.
I think that there is a failure of will on the part of what
we generally think of as a segment of the generation of 1948 who,
compared to where their fathers and mothers stood on these
issues, see in the protracted conflict something that is to be
very much feared for a whole host of reasons. My concern here is
not whether they are right or wrong, but the fact of the matter
is that their parents' generation was prepared to enter into an
intense and protracted conflict to achieve their Zionist vision
while they are not.
I think the other group is a segment of the post-1967
generation which had great expectations in the aftermath of the
1967 war, hopes that were disappointed by a reality which we
helped forge. They are disappointed in that reality and are
undergoing the same kind of failure of will.
On the other hand there may be a lack of adaptation on the
part of those who may have the will or believe they have the will
to continue the conflict but who have not adapted to the changed
situations that have occurred. Again, whatever is correct, and I
do not know that we know which is correct, this leads to a
breakdown in the consensus within the Jewish population of Israel
with regard to how to proceed.
Once, at a conference with Palestinians, I watched a group of
that part of the generation of '48 which has taken the lead in
the peace movement, reject a Sephardi who was clearly of their
political orientation on that issue. They literally would not
talk with him. They would huddle by themselves and talk about
this and that and the other thing, but they were more prepared to
talk with an Ashkenazic woman from Gush Emunim who was there than
they were to talk with him, even though he was absolutely within
their ranks. I mentioned this to her at a certain point and she
said, "Yes, don't you understand? Why do they want what they
want with regard to peace? They are dreaming of what they
remember of Israel in their childhood and youth and they figure
first we will settle with the Arabs by giving back the
territories through partition so we will get rid of them. We
will only have the ones in the Galil. We cannot help that, but
they are a small minority. Then they can get rid of the Orthodox
because that is Gush Emunim -- after all, in their view all
Orthodox have to be Gush Emunims. They can get rid of them if
they cut them off. And then they can get rid of the Sephardim.
Then the country will be really nice, right? Only the nice
people will be there."
Now she was Gush Emunim, I am not Gush Emunim and I do not
share her views about Gush Emunim, but I happen to think in this
case she was right about these particular people. Why? Because
I saw their behavior, which cannot be explained ideologically,
but which to them no doubt was perfectly reasonable. Of course,
we may find similar phenomena on the other side, although I do
not have any good examples of it.
It is unquestionably harder to reconcile the two peoples, but
I do not think that it is impossible if there were a sufficient
will to do so on both sides. Basically, I do not think that
Israelis, whatever side of the peace question they are on, really
want to be reconciled with Arabs. I think they want peace with
them based upon separation in one way or another. There are
those who want to achieve separation by returning to the pre-1967
borders or something like that, and those who want separation by
hoping somehow for emigration of the Arabs, or transfer. The
fight is over that issue, but the desire for separation I think
is as strong in both quarters. I think the desire on
the part of the Arabs for the removal of the Jews is, if
anything, even stronger.
The Partial Breakdown of the Present Social Contract
This now brings me back to the question of internal Israeli
society again -- to the present social contract and why it seems
to be breaking down -- perhaps not entirely, but at least
partially. What did the original social contract of 1948 include
of particular relevance to us here? I think we can talk about
five elements that are particularly relevant:
-
The status quo in sharing public space -- that is to say, the
status quo agreement that was established really had to do with
sharing public space between Orthodox and non-Orthodox.
-
Part of the social contract was not insisting upon a religious
or halakhic definition of who is a Jew, but developing a
quasi-secular one that is built upon certain initial premises
associated with the religious understanding.
The agreement that, with the exception of certain yeshiva
students, no matter how one views the other issues in society,
one carries out one's security obligations. One serves in the
military; one participates in the defense of the country.
The agreement that, even where different visions are involved,
there should be a consociational sharing in institutions. The
Zionist idea itself increasingly became the faith of the fathers
but remained a faith. This essentially meant that the system of
proportionality would be maintained. Each different movement
with its ideology and constituencies would fight in the accepted,
agreed-upon political arenas, would win whatever percentage of
public support it could in those arenas, would enter into
coalitions or not accordingly, and would, in return, get some
equivalent share of the common enterprise. That is the basis of
consociational sharing.
There was a general agreement that we would recall the Second
Commonwealth and its failures and that we would not repeat the
same mistakes. Ben-Gurion and Begin both drew out special
lessons from that experience. Ben-Gurion emphasized the lesson
that Israel could not afford to get into conflict with the major
power in whose sphere of influence it was, the way ancient Judea
came into conflict with Rome. Begin emphasized a different
lesson, namely that Jews could not allow themselves to fall into
civil war. Both these lessons, I think, were accepted by all
parties, as witnessed by the decision on the part of the Israeli
parties then of the left to ally Israel with the United States,
not entirely a voluntary decision but still there were choices
made, and Begin's decision first not to fire back during the
Altelena affair and then to allow the Etzel to be disbanded and
to join in the normal political processes, even though for him,
at any rate, and his colleagues there was great provocation and
he was under some pressure not to do so.
Now what has happened with this original social contract of
1948. With regard to the status quo and sharing public space, I
think there has been increasing rejection in two directions. One
is the rejection by the ultra-Orthodox. They now want what I
would suggest is not so much the sharing of public space as a new
status quo based upon what Mordechai Rotenberg, and others, have
described, drawing from a traditional idea, as the
Issachar-Zebulon transfer. In other words they see themselves as
the guardians of Torah which keeps Israel alive and they think
that the rest of the state should simply support them, their
institutions, and their people. On that basis, I believe they
are prepared (except for the most extremist among them) to
maintain civil peace provided there is unrestricted support of
their institutions. Otherwise sharing public space involves too
many compromises and they are no longer prepared to accept that.
I will come back to why that makes a difference now when it did
not make a difference in 1948, since they probably did not see
matters much differently 40 years ago.
On the other side is the rejection of the old status quo by a
new generation of hedonistic individualists. Characteristic of
the original generation of 1948 that accepted the status quo in
this area was that they were more militantly secular than most of
the people who oppose it today. I am not talking about the few
active secularists; I mean the general population. They were
more militantly secular but they also had two things. They had a
deeper understanding of what the sharing of public space was
about because they knew what being Jewish was about in a
traditional sense even if they had rejected the religious
dimension of Judaism, and second, they had an appreciation for
the some of the ancillary values, not the religious values, but
the ancillary values of a yom menucha (day of rest) and of moadim
(the cycle of Jewish holidays) that reflected the tradition.
They were, indeed, in many cases interested in maintaining both
by pouring new wine into old bottles.
The present generation is probably much less secularist. If
you polled them, most of them would probably even own up to a
belief in God. But they want their conveniences like most
everybody else in the Western world these days. And if they want
to have their conveniences on Shabbatot and hagim and so forth,
they do not want to be restricted because of some status quo that
requires them to share public space in a way that those
conveniences are somehow limited or made unattainable. This is a
more serious assult on the status quo, one which, in my opinion,
almost inevitably disrupts the previous arrangements. The only
comparison I can think of, but I am sure there are others, is
what happened in those Western societies at the end of the
nineteenth century where Reformed Protestantism had a very strong
hold and required closing down commercial and recreational
activities for the Lord's Day -- "blue laws," as they were called
in the United States. When there was no longer a consensus
around those laws -- and most of the time they were not even
enacted into law until there was no longer a consensus to sustain
them on a voluntary basis -- then the Protestant fundamentalists
managed to secure such legislation in a period of transition. It
never worked, because unless there is a consensus, one cannot
successfully impose such things by law in a free society.
The second element in the breakdown is the ultra-Orthodox
attack in the who is a Jew issue. In fact this was an attack
that in its serious form was generated from outside the state.
Those inside the state who originally generated this attack, in
my opinion, did it as a smokescreen to get more money in the
Issachar-Zebulon transfer. But when the Lubavitcher Rebbe
started, he had a different agenda in mind. What is important
about this, again, is not the issue itself but the shifting
balance of energy in the Jewish people which, it seems to me, is
a very serious issue; that with the demise of energetic Zionism,
ideological energy has been shifted to fundamentalist Orthodoxy
as ideological energy in much of the world has flowed to
fundamentalist religion in general in the last decade or so. This
is not necessarily an inevitable or enduring phenomenon, but for
the moment almost the only people who have ideological energy in
Jewish life today are the fundamentalists.
Second, there is demographic energy. This is even more
apparent in Jewish life than the ideological question. The only
people who are reproducing themselves today in substantial
numbers are the Orthodox and ultra-Orthodox. In the diaspora
there is less than zero population growth and while in
non-Orthodox Israel there still is some population growth, it
does not compare. This kind of energy also effects the tide of
events. As we know, most human events are not shaped by vast
majorities that are relatively inert, but by energetic
minorities. And this is a very energetic minority and it is
energetic on two of the most crucial fronts of Jewish life at any
time, namely the ideological and the demographic. So it means
something when the assault on the status quo comes from that
quarter.
Third, there is a growing refusal of a still fringe but
perhaps a portentious fringe group to carry out their security
obligations because of their opposition to certain government
policies as in the case of Yesh Gvul. This has not gone nearly
as far as have the actions of the ultra-Orthodox in breaking down
the status quo. I think that there is still a very strong
consensus with regard to carrying out security obligations, but
there is no question that it is not the essentially universal
consensus that we had come to know.
Fourth, there is a great decline in the consociational bridge
that provided a linkage between the contentious groups that
comprised the Zionist movement and later the State of Israel.
This has led to an intensification of the confrontation in the
realm of ideas. The consociational bridge could maintain itself
as long as most people in the country fit into one or another of
the camps and parties that comprised the consociational system.
Today almost the only people who find themselves at ease in this
kind of framework are the Orthodox and ultra-Orthodox, the
religious camp in its broadest sense, and perhaps some elements
of the far left and far right and I am not even sure about them.
For most Israelis today, however they vote, Labor or Likud, they
do not identify themselves heart and soul with some camp. They
are not tied into the institutions of that camp except in a
residual way. They do not live their lives within the framework
of that camp as had been the case up until the mid to late 1960s.
And therefore the consociational bridge is no longer available,
while at the same time the willingness to share, to communicate
in the realm of ideas, remains strong.
Finally, the collective recollection of the failures of the
Second Commonwealth is still holding. To me it is extremely
significant with regard to the social contract that holds Israel
together that at those moments when violent confrontation has
crossed certain red lines, it has immediately ceased and pulled
back. After the murder of Emil Grunsweig, the demonstrations
stopped almost immediately on both sides. When the burning of
bus stops led to reciprocal violence against synagogues and
yeshivot, again there was a full stop. Everybody stopped, even
the people we would think of as being outside the consensus,
their leaders stopped them. These to me are signs of this
collective memory, so to speak, and it is still holding.
Now this means that there are still some elements of the
status quo, of the original social contract, that are holding,
but there are so many that are not that the others are likely to
erode if there is not a restoration or a renegotiation of the
social contract.
Toward a Covenant of Civil Peace
Let me say a final word about dealing with the
contradictions. Again, let me reiterate that every proper
democratic state rests upon the consent of its citizens, not as
an armistice between enemies but as an agreement among partners
in a common project. If it is really an armistice between
enemies, then it may suffice to keep a certain modicum of civil
peace but it certainly cannot function as a civil society. A
social contract in this sense is a minimum. Appropriately a
society would be based on a mutual covenant which is much more
than a social contract.
A contract is properly understood as an agreement entered
into by two or more parties primarily for the individual benefit
of each and only secondarily for their mutual benefit. That is
the difference between a compact and a covenant. A social
contract is something that is useful because there is an
individual benefit in maintaining sufficient civil peace to
protect at the very least one's life and maybe beyond that one's
liberty, one's property, one's pursuit of happiness, the phrases
that we are used to using in describing such matters. But it is
a minimalist requirement, designed primarily for individual
benefit and only secondarily for mutual benefit.
Contracts are written the way they are, crossing every "t"
and dotting every "i," because it is legitimate for each side to
try to interpret the contract to get the maximum for himself and
to give the minimum to the other side. It may not be the best,
most self-interested policy, but it certainly is possible, and
because it is possible, that is why contracts are written the
way they are, as distinct from covenants or compacts in which
there is a dimension of hesed, of mutual obligation and
responsiveness that goes beyond the letter of the past. In any
covenant, it is expected that the partners have a goal of mutual
benefit that is at least as high if not a higher priority than
that of individual benefit, and which requires everybody to act
with a certain openness and forthcomingness in such matters.
Every civil society that is based upon a compact or a covenant,
as distinct from a contract, has some term, frequently a legal
principle -- hesed in Hebrew, comity, for example, in the
Anglo-Saxon world -- that embodies this requirement that people
behave in such a way. Otherwise the compact or the covenant
cannot hold.
In this connection, I think that there is an advantage in
turning to perhaps the most hard-headed, hard-nosed philosopher
of them all, Thomas Hobbes, as a starting point. In the Israeli
situation, Hobbes has the virtue of starting from an utterly
secular, a radically secular beginning, though he ends up
acknowledging if not requiring a religious understanding of what
he proposes as well. Starting from that utterly secular
grounding, he makes a powerful argument for a certain kind of
political covenant which is designed to protect life and to make
civil society possible. Without accepting his anti-democratic
institutional solution as to how this covenant should be
implemented, it is useful to take another look at the fifteen
natural laws or fundamental covenants that form his covenant of
civil peace. That covenant offers a starting point for serious
discussion in any civil society of how to create the kind of
compact or covenant necessary to make it work. They are as
follows:
- To seek peace, and follow it.
- By all means we can, to defend ourselves.
- That men perform their covenants made.
- That a man which receiveth benefit from another of mere grace,
endeavor that he which giveth it have no reasonable cause to
repent him of his good will.
- That every man strive to accommodate himself to the rest.
- That upon caution of the future time, a man ought to pardon
the offences past of them that repenting, desire it.
- That in revenges, men look not at the greatness of the evil
past, but the greatness of the good to follow.
- That no man by deed, work, countenance, or gesture, declare
hatred or contempt of another.
- That every man acknowledge another for his equal by nature.
- That at the entrances into conditions of peace, no man
require to reserve to himself any right which he is not
content should be reserved to every one of the rest.
- If a man be trusted to judge between man and man, that he
deal equally between them.
- That such things as cannot be divided, be enjoyed in common,
if it can be; and if the quality of the thing permit, without
stint; otherwise proportionably to the number of them that
have right.
- That the entire right; or else, making the use alternate, the
first possession be determined by lot.
- That all men that mediate peace, be allowed safe conduct.
- That they that are at controversy, submit their right to the
judgement of an arbitrator.
These are all basic laws for civil peace. In my opinion it
would advance the Israeli discussion a great deal if we were to
focus on them as the basis for thinking in more practical or more
immediate terms about Israel's practical and immediate situation.
