A (Levantine) Jewish and Democratic State

As a child it seemed to me natural for people to understand each other despite speaking different languages”

(Jacqueline Kahanoff, MiMizrah Shemesh, 1978, 11)

The State of Israel is perceived as detached from the geo-sociological Arab-Mideast space in which it is located. It is for good reason that some have likened Israel to a “villa in the jungle” that self-affiliates with Europe, its institutions, culture, and organizing ideas. The country’s ongoing aspiration to mimic the American-European liberal world has not spared its legal system. Efforts in this regard began when Israel’s judiciary was established as an independent system, at which time it was decided to build it on a liberal ideological foundation and not on the traditional foundation offered by ancient Hebrew law (Mautner, 2019). In the decades since, and with greater intensity once Israel’s Basic Laws were enacted, the issue of Israeli law’s ideological foundations has resurfaced, at a time when the state’s Jewish and democratic components became intertwined: their linkage by the innocent conjunction “and” has not remedied the painful gap between the two notions. Intra-judicial discussion of the issue – once an almost philosophical debate – has in recent years become practical, having been transposed to the political arena, making it doubtful that the debate can be confined to the theoretical, argumentative sphere alone. A concrete proposal for practical reconciliation between the two has become an immediate necessity. My proposal in this piece emanates from my identity as a legal scholar, a social justice and human rights advocate and as someone with roots in non-liberal Jewish tradition. As such, I suggest that we consider developing Israeli law in a way that draws inspiration from the Levantine space in which it exists.

Similar to other Israeli institutional frameworks, one can easily detect dissatisfaction in the legal sphere with our location in the Levant. Israeli law is guided by classical liberal-European lines of thought that originated in British common law and are almost completely devoid of Mediterranean influences, despite the fact that the Ottoman legal system held sway here for over a century (Likhovski, 1999). The Levantine idea that I wish to propose as an interpretative option is linked to both these influences yet requires an independent definition that will clarify the possibility of its bearing on the Israeli legal system. My search for an ideological framework for identifying a rich and high-quality basis for the needed definition, as experienced from an Israeli perspective, led me to the literary world, where the writer Jacqueline Kahanoff offered a strong conceptual basis for Levantinism. In the next section I will present an adaptation of her writerly definition, one tailored for the legal world, as part of my post-liberal critique of Israeli law as being a system that promotes radical individualism and suffers from rationalist overload and from a disconnect between legal norms and their context and location (Bitton, 2018).

Levantinism

Levantinism is a pluralistic cosmopolitan outlook, sensitive to context and nourished by the non-dialectic connection between the European West and the Mediterranean East. These two elements coexist within the Levantine individual in a colorful chaos packed with contradiction and complexity. The Levantine individual’s life is characterized by a traditionalist identity embedded in a deeply monotheistic religious context; by connection to a human and geographical environment that confers meaning; and by great appreciation for the Western contribution to his or her existence (Kahanoff, 1978). This Levantine richness gives the one endowed with it a persistently critical perspective, thanks to the dynamic selection of different, sometimes contradictory, ideological options Levantinism provides for consolidating his or her views.

Levantinism offers us, then, a different cognitive and conceptual framework for understanding the opposition to Israel’s judicial liberalization, which sometimes creates a sense of detachment, considered by some to be superfluous or even illegitimate, from the identity of many of the country’s Jewish citizens. Levantinism allows one to take a complex view of reality in a newly established nation with deeply rooted traditional identity, rather than the West-versus-East or secular-versus-religious binaries Israeli law offers us in its perception of “Jewish and democratic.”

Levantinism in Israeli law – How?

Levantinism can provide a conceptual space to connect those torn between the two binary worlds: one liberal, individualistic, achievement-oriented and competitive, attributing supreme importance to self-fulfillment via the pursuit of happiness; and the other, a world that favors collectivism, communal life, and cultural identification. To illustrate this general insight, I would like to present here a few possible implications for Israeli law had it been applied as a legal system informed by Levantinism.

1. Law as a sphere of pluralism, not of ideological monolithism

The liberal approach to law entails the use of clear and categorical tools and sharply-defined rational conceptualizations drawn from a closed monolithic source of justice, to ensure stable and consistent implementation of the law. This approach limits the law’s potential richness, embodied in its ability to examine a variety of options so as to assess the quality of the final ruling.

An example of this ideological dichotomy can be seen in the human rights sphere, with its liberal expectation of applying universalist views to decide the “prohibited” and “permitted.” For instance, a legal scholar concerned with human rights could identify the traditional opposition to Jewish assimilation as an obvious manifestation of “racism,” which by law should be prohibited. However, many Jews who object to marriage between Jews and non-Jews have a completely different motivation from that which, for instance, once drove American lawmakers to forbid mixed-race marriages. Although both prohibitions stem from a desire to keep communities within their identity boundaries, and to a certain degree “pure,” Jewish opposition to assimilation does this based on a cosmology of social order that does not entail subjugation or humiliation of the other, unlike the American case. Judaism’s prohibition of assimilation arises from a cosmology of recognizing the importance of belonging to a clear and defined community, a kind of “tribal” affiliation, as the basis for a social order that has no need for rational justification because its justification is faith-based.

Here we come to a point of contention that opens up an ideological, ethical, cultural, and social rift between the liberal camp and the religious and non-liberal camps. The liberal-secular world of meaning elevates the autonomous individual and gives precedence to rights over the society or community to which the individual belongs. Hence, any other collective identity – religious, gender, or national – is perceived as secondary to the person’s democratic identity as an individual. By contrast, in the Masorti (traditional)-religious world of meaning the individual’s identity is derived from his or her affiliation with a collective, with an emphasis on the heritage of the past, and the affinity for tradition and communal solidarity that are based on it (Taylor, 1994).

In the face of this Jewish rationale, it is very hard to justify superficially labeling opponents of assimilation as anti-democratic racists, regardless of the fact that assimilation must not be legally prohibited, of course. Furthermore, this insight does not keep the legal system from responding to certain situations that some might justify cosmologically, such as the exclusion of women from a public space. In this sense, the law must distinguish between identifying the justification for an offensive act – where it is not supposed to intervene – and designating as invalid the means for imposing that justification, e.g., employment discrimination against non-Jews as a barrier to assimilation – where the law is supposed to intervene.

To this crucial distinction one may add the suspect nature of the legal system’s indifference toward behaviors motivated by ethnicity that are justified based on liberal ethics. Consider, for instance, the refusal to rent a property to a Muslim tenant, Israeli law tolerates such behavior in the name of property rights and the property owner’s right to autonomy (Bitton, 2008). The fact that the law can devise such balances on behalf of the liberal principle of property and autonomy, and that this principle takes precedence over the general humanistic ideal of non-discrimination, even more strongly reinforces the sense of alienation from it.

2. The law as something that is influenced by concrete, not universal, contexts

Israel’s legal system is founded on the idea of universal ethics, itself based on the belief in a “truth,” an ethical code that cannot be invalidated in any context, and that is not grounded in localism (Bitton, 2018). As with the rational justification of the admissibility of science based on its universality – “one plus one equals two” in all languages and in all places on earth – liberalism benefits from the legal system’s legitimacy being founded on this idea. Universalism holds that knowledge is produced by rational means available to all; the truth and validity of these means are in any case not connected to a specific context or a concrete localism. Universalism in law thus favors uniformity even where there is difference, as difference often represents local deviation that could divert prevailing rational lines of thought and action from the general, scientific track that is supposed to suit all surroundings and all frameworks (Harbers, 2005).

A major legal embodiment of this idea is the principle of liberal equality before the law, which constitutes its Archimedean point for ensuring justice. This principle seeks “similarity” or tries to blur irrelevant “difference” between people in the name of the universalist Aristotelian rule requiring “similar treatment for similar cases and different treatment for different cases.” Against this background arose the “colorblindness” ideal [that originated] in American law, as a tool for enforcing the universalism that discrimination violates. Blindness to characteristics that distinguish people from each other allegedly returns the “different” sides to a position of “similarity” as human beings, in accordance with the universalist approach.

Adherence to both the universalist idea on the one hand and the principle of equality on the other creates a basic tension between the two. Doctrinally, legal equality requires that the group seeking protection in court detach itself from its unique attributes and from the community in which it exists, as the means of constructing its discrimination claim. This requirement acts on non-liberal groups within Israeli society in a way that could potentially thwart their struggle for equality. Their deep need for connection to their roots actually distances them from the universal standing on which the equality principle is based, as universality holds each person to be “similar” to others, and therefore entitled to equal treatment.

Let us consider, for example, the struggle of Israeli Mizrahim for equality. The universal foundation of the equality principle demands of them a dual identity process: They must be differentiated from Ashkenazim, who comprise the socio-ethnic elite, and they must join the “club” of groups suffering discrimination on the basis of their identity, alongside the Arabs/Palestinians. Here the liberal equality equation’s blindness to Levantine reality is revealed, as the expectation for a Mizrahi differentiation from Ashkenazim could be perceived as detachment from a deep “Jewish foundation” of their identity, while the liberal expectation that they join the Palestinian collective as sufferers of discrimination leaves them cut off from the communal-tribal tradition that is a source of meaning for them. The principle of solidarity between groups who share a given space, and not the principle of universal “similarity,” could potentially produce less opposition on the part of these groups, and leave each group in a democratic space where its identity is not subject to threat (Bitton, 2014).

3. Law as inferred from individual experience to broader understanding, and not vice versa (induction rather than deduction)

Common law, in its modern philosophical approach, is thought to be a system informed by a code of basic ethics and basic rights organized hierarchically and possessed of eternal meaning (Cohen, 1996). The legal analysis of a given matter, however human, as opposed to “ideological” or “theoretical,” is conducted in accordance with, and from within, this conceptual-theoretical system. This being the case, the use of human life experience as a basis for rulings is considered random and in any case as something that could disrupt regular, rational, and universal legal thinking. Requiring the law to act in a way that recognizes the existence of diverse human experiences and the unique life experience of different people as part of a reference group with a given context and location, is thus a Levantine requirement. It is possible, for instance, that rulings vary according to concrete and local context and still remain completely logical and deeply justified. The wisdom of halachic decisors in the Moroccan-Jewish tradition could have served as an inspiration for such a ruling. These poskim were capable, for instance, of ruling that a married woman may remove her (religiously required) head covering if it poses an obstacle to her ability to interact with the secular surroundings in which she works. Feminist legal criticism would classify such rabbinical ruling as an organized effort to comport with developing gender perceptions and not as “unintentionally erroneous” or as a “compromise” on the part of the community’s elders, as typical Ashkenazi rabbis reacted when learning of like decisions and annulling them. The recognition that it concretely embodies the feminine experience is what allows it to provide appropriate protection to women living in the Jewish community in Morocco, but also active outside it. Should the law manage to free itself from its deductive line of thought and shift toward inductive, reasoning when deliberating on cases that differ from the life experience of “humanity in general” – as with “feminine life experience” (Bitton, 2003) – this would also reinforce its connection to the diverse Israeli scene, which allows varied, inclusive, and non-stagnating adjudication.

4. Law engaged with the community and its aspiration to solidarity and the common good, rather than being engaged solely with the individual and his/her aspiration to autonomy

Liberal law revolves around the individual, safeguarding his or her right to realize her or his potential. This is not, of course, a bad thing in and of itself, but the autonomist outlook may distance the individual from a richer and more meaningful community life in which mutual responsibility and caring for others are inseparable parts of his or her experience. This is especially true of Israeli society, where systems constantly act upon the individual in a manner that position him or her within connected and communal frameworks: family, neighbors (“neighborhood”), army or national service, religious denominations, traditionalism and community life, and the like. Despite the ongoing disintegration of Israel solidarity, these formative frameworks and life experiences persist among Israelis with impressive consistency. Against these communal characteristics, Menachem Mautner has noted law’s central role in conceptualizing the social process of extreme individualization in Israeli society. According to him, the legal system has, in so doing, promoted divisiveness and a rise in the power of the National Religious movement as an alternative to the process of disintegrating the familiar sense of solidarity and belonging. The legal system’s refusal to address collective rights as such, and its fear of their existence, are also what led to the delegitimization of several of these groups, and in particular the Arab sector (Pinto, 2007).

The aversion to recognizing groups in a legal framework, and the insistence on the individual being as the primary object of the legal system’s rights and obligations stand in contradiction to Israeli experience. The existence of separate state education systems for Jews and Arabs, for example, is an outcome of Israeli reality, where the “Jewish” component of the state’s definition dictates some of the material in the state curricula. Thus, this separation is not necessarily a violation of the familiar democratic code of integration, but rather an expression of the natural human tendency to congregate and form national-identity environments for groups that have strong affinity to traditional identity. However, recognition of the Arab education system’s right to group identification is lacking and makes it harder to fight for its right to separate curricular supervision.

Conclusion

The legal system is a sophisticated apparatus of rules, ideas, and concepts incorporated by judges into specific rulings. Despite its beauty and richness as a democratic system, it seems to lack the complex human angles that challenge the narrow liberal conception of human existence as primarily being autonomist and individualistic. This kind of post-liberal challenge could, however, be mounted on behalf of the Israeli legal system, and for the public good, by Israel’s Levantine citizens.

Over time, Israeli law with its near-total reliance on Eurocentric liberal values has become alienated from its surroundings, which are situated in the Middle East, where identity is a matter of traditional heritage with a clear religious context, and of community life. The Israeli legal system should consider opening its doors not only to the liberal value system on which democracy is graciously founded, but also to the local, Middle Eastern and traditional values present in its environment. For all of these it should constitute a “third,” connecting, space for intelligent, effective, and inclusive use of the new compound that will emerge from the mixture of all these elements. Within this “Third Space”, the phrase “Jewish and democratic” will operate in such a way that the state’s characterization as “Jewish” will connect us to the Levantine space from the angle of community, tradition, and particularism, while the state’s characterization as “democratic” will connect us to the Levantine space from the angle of its esteem for the human wealth embodied in the advancement of Western-liberal values.

This is, therefore, a call for the Israeli judicial “villa” to consider opening its windows, and perhaps even its doors, to an interesting, diverse, and enriching environment: the imagined – but altogether Levantine – “jungle” in which it is embedded and operates.

 

Bibliography

Bitton, Yifat (2003). “Feminine Life Experience” and the Foreseeability of Harm.” Mishpatim, the Hebrew University Law Review, 33(3), 585-654. (In Hebrew)

Bitton, Yifat (2008). “Bringing Power Relations within the Scope of Negligence Liability.” Mishpatim, the Hebrew University Law Review, 48(1), 145-215. (In Hebrew)

Bitton, Yifat (2018). “Three Pillars of Liberalism and One Falling Equality,” Labor, Society and Law, 15, 55-74. (In Hebrew)

Cohen, Haim H. (1996). The Law. The Bialik Institute. (In Hebrew).

Kahanoff, Jacqueline (1978). MiMizrah Shemesh. Yariv in cooperation with Hadar Publishing.

Likhovski, Assaf (1999). “Between ‘Mandate’ and ‘State’: On the Division of Israeli Law into Time Periods. Mishpatim, the Hebrew University Law Review, 29, 689-721. (In Hebrew)

Mautner, Menachem (2019). Liberalism in Israel. Tel Aviv University Press. (In Hebrew)

Pinto, Meital (2007). “Language Rights, Immigration and Minorities in Israel.” Law and Government, 10, 223-269. (In Hebrew)

[In English]

Bitton, Yifat (2014). The dream and its construction: Mizrahi-Arab cooperation to combat discrimination. Journal of Levantine Studies, 4(1), 174.

Harbers, Hans (2005). Science in context: The paradox of Universalism and Liberalism. Science, Technology, & Human Values, 30(4), 575–582.

Taylor, Charles (1994). Multiculturalism: Examining the politics of recognition. Princeton University Press.

Yifat Bitton, a professor of law and activist for equality, is President of Achva Academic College.