LAW & THE CULTURE OF ISRAEL, by Menachem Mautner. Oxford: Oxford University Press, 2011. 267pp. Cloth $60.00. ISBN: 9780199600564.
Reviewed by Martin Edelman, Department of History, Philosophy, Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.
pp.85-87
In addition to its well-known security problems, the Jewish State of Israel is beset by a number of fiercely contested domestic political issues. The Israeli Supreme Court is at the center of most of those controversies. The great value of Law & The Culture of Israel is its clear account of how a judicial body has come to occupy center stage in the country’s democratic politics. Now, Menachem Mautner argues, that role is jeopardizing the legitimacy of the Supreme Court because the struggle is about the very nature and soul of Israel itself.
Professor Mautner situates the current conflict as a struggle between two competing culture systems – law and religion – that constitute individual identities, collective identities, and social interaction. Zionism, the Jewish national liberation movement that created Israel in 1948, contained many disparate strands. But the great divide was between the secularists who perceived Jews as a distinct people with their own national identity and culture, and those who perceived Jews primarily in terms of a religious identity shaped by the tenets of Orthodox Judaism.
At independence in 1948, the Zionist movement was dominated by socialists. Not only did this involve a heavy involvement of the State in the economy, but the House of Labor engendered a collectivist culture that considered the good life as contributing to the revival of a secular Jewish national identity suitable for a modern (Western) society. The Supreme Court during this period of the “first Israeli republic” (1948-1977) acted to promote the importance of the rule of law – to sustain most actions of the democratically elected Government while occasionally insisting upon the importance of individual rights.
As a democratic movement, the dominance of the Israeli labor/socialists had not extinguished the other political groupings within Zionism and the new State. Over time, demographic, political, economic and educational changes gradually eroded the hegemonic political culture of the “first republic,” thereby shifting power to those other groupings and new, indigenous groups within Israeli society. The size of the Orthodox and ultra-Orthodox communities grew considerably. The very large number of Jews from the Arabic-speaking lands (the Sephardim) did not assimilate into the collectivistic culture of Labor Zionism. And the second generation of secular Israeli Jews adopted an individualistic and rights oriented outlook. The political culture of the “first Israeli republic” shattered. Disagreement among the competing political elites created deadlock and drift in the elected agencies of government.
As secular Israelis became more rights oriented, they turned increasingly to the Supreme Court to remove the restraints [*86] on their individual actions. Since the Supreme Court, sitting as the High Court of Justice, also functions as a court of first instance, Israeli citizens had direct, immediate access to it. Professor Mautner demonstrates how the Justices, now overwhelmingly members of the secular liberal segment of society, responded. The “Court practically extinguished the doctrine of standing, and dramatically expanded the scope of the doctrine of justiciability” (p.3). More often than not, while handing down decisions on an increasingly wider range of issues, the Court sustained individualistic interpretations of Israeli law and policy. Given the immobilism of the electoral agencies, the Israeli public (with the notable exception of the Orthodox Jewish communities) approved of the increased judicial activism.
The Court’s activism in advancing liberal-individualistic values culminated in the “Constitutional Revolution” of 1995. Led by Chief Justice Aharon Barak, the Justices took the extraordinary step of declaring that Israel no longer lacked a written constitution! Henceforth, they proclaimed, the 11 Basic Laws that had been periodically enacted by the Knesset (parliament) would function as the supreme law of the land. (Previously, the status of Basic Laws relative to other Israeli laws was a highly contested matter and most authorities believed that Israel was one of the few countries in the modern world lacking a written constitution.) Moreover, the Justices claimed the authority to enforce that constitution by an American style power of judicial review – any Government law or policy that the Court held to violate a Basic Law would be unenforceable. Little wonder, then, as Mautner states, the Israeli “Supreme Court is widely regarded as the most activist in the world” (p.1).
In 1995, however, it was no longer clear that the Supreme Court could rely upon the support of a majority of Israelis. By that time, the “second Israeli republic” (1992-present) had clearly emerged. It has a culture marked by sharp divisions. While secular Israeli Jews had come to share a worldview that sees life in terms of personal self-determination, they are sharply divided along liberal/nationalistic security policy lines. The former remain highly supportive of the Supreme Court and its decisions based on liberal, individualist values. The more nationalist Israeli Jews have resented the Supreme Court’s intrusions into public policy, particularly when they related to the rights of the large (20%) Palestinian-Israeli group. The Orthodox Jewish communities have been completely alienated by the Court’s liberal decisions, which they feel are utilizing State law to undermine their basic values. As Mautner notes, the “Supreme Court has alienated and even agitated many in the religious-national group[s] and thus contributed to the decline of its standing” (p.175).
Most Israeli Governments in the “second republic” have been formed by the political parties representing the cultural orientation of nationalist and Orthodox Jews. And just as Mautner all but predicted in this most insightful book, the Supreme Court has become politically besieged. Prominent leaders openly attack Court opinions. Ministries find ways to avoid implementing Court decisions. Ministers propose new laws to essentially reverse decisions. And the [*87] Minister of Justice has even called for a different method of selecting the Justices in order to change the substance of Supreme Court rulings.
In another branch of analysis, Mautner notes how the sizable Palestinian-Israeli minority is affected by this struggle. These citizens have always been excluded from meaningful membership in the larger society. Politically, their elected representatives never exercise real governmental power. Administratively, their needs are addressed at a minimal level. Their best hope for fuller participation and incorporation into Israeli society lies in the adoption of a liberal political culture. An emphasis on the “Jewish” nature of Israeli society, as the Orthodox component of recent Government coalitions insists upon, isolates Palestinian-Israelis. “The more Israel accentuates the Jewish elements in its public life, the more it alienates its Arab citizens; and the more Israel dilutes these elements, the more it agitates its Jewish religious citizens” (p.224).
“Israel’s multicultural condition – cultural divide within the Jewish groups and between Jewish and Arab groups” – leads Mautner to suggest that liberalism is the “most appropriate … political theory and regime” for Israel (p.201). A deeply embedded liberal culture would enable Israelis to unite behind a shared political conception of the State while enabling each group to develop its own unique culture. Whatever one may think about the desirability or feasibility of this proposal, there can be no doubt that Professor Mautner has made a significant contribution to our understanding of law and culture in Israel. His book is a model of an intelligent, thought-provoking study of law and society.
Copyright 2012 by the author, Martin Edelman.
