By Michal Shaked | 03/10/2010
In Menachem Mautner's book, Law and Culture in Israel at the Threshold of the Twenty First Century (Hebrew: Am Oved, Sapir College and Tel Aviv University, 2008), the former hegemonic cultural group that has supplied the Israel Supreme Court with justices is not handled with kid gloves. In Mautner's view, these picture: Paol Benny, photo: Eyal Izhar
individuals used their superiority in numbers in the Supreme Court in order to reestablish there the hegemony that their group had lost in society. Michal Shaked believes that Mautner errs in this analysis, although she finds his practical suggestions brilliant and considers them an excellent tool for opening up a vital social discourse
Menachem Mautner's recent and brilliant book deals with the major issues of law and order in Israel: What led to the harsh criticism of the Supreme Court and how can such criticism be dealt with? What judicial steps can be taken to deal with the rift between secular and religious Jews and between Jews and Arabs? What should be the definition and identity of the State of Israel? These issues have already been discussed extensively in the past, and the innovativeness of Law and Culture in Israel at the Threshold of the Twenty First Century lies in its proposing a new theoretical and conceptual framework for handling them.
The book consists of two parts. The first surveys the development of the Israel Supreme Court's judicial activism and analyzes its meaning and consequences, while the second part proposes the introduction of a new liberal paradigm for the Israeli judicial system.\
The Decline of the Hegemony of the Founding Generation and the Reinforcement of the Jewish Religion in Israel
Mautner's book opens with an historical-sociological narrative in which Mautner follows in the footsteps of Baruch Kimmerling's analysis of Israeli society. According to this narrative, Israel was ruled by a hegemonic cultural group whose members were among Israel's founders. Their culture was Western and secular; initially, it was collectivist and, at a later stage, it was individualist and liberal.
The overt turning-point was the political upheaval of 1977 when, for the first time since Israel's establishment in 1948, a right-wing party, the Likud, came to power. Parallel to the decline of the hegemonic group, other groups, the most important of which were the religious groups, became stronger. Many of the members of these religious groups want to mold Israel as a theocracy and propose Jewish religious culture as an alternative to the secular Western liberal culture of the “former liberal hegemonic group” (as Mautner defines the hegemonic group whose power and influence have declined). Furthermore, many of the members of these religious groups oppose liberalism and the culture that they propose is a religious, Jewish-ethnocentric, communal culture that is against any links with the West.
The strengthening of Judaism in Israel, argues Mautner, signifies the renewal of the major battle over Jewish identity that began with the Jewish enlightenment movement in 18th-century Europe. After Israel's establishment, it appeared that Judaism had emerged the loser in this struggle; however, between the Six Day War of June 1967 and the late 1970s, it became clear that Western secularism's victory had been only temporary. Mautner reminds us that the decline of the secular hegemony penetrated the Israeli judicial system in 1980 with the passing of legislation that required judges in Israeli courts to turn to the “legacy of Israel” in cases of a judicial lacuna and subsequently with the passing of the Basic Laws, which defined Israel as a democratic Jewish state (1992). This legislation forced the judicial system to participate in the dispute over the identity of the State of Israel.
The Supreme Court and the Activist Revolution
Various theories have been proposed to explain the activist revolution that the Israel Supreme Court launched from the early 1980s onwards. In this revolution, the Supreme Court assumed wide administrative powers, extended its judicial aegis over bodies and topics that had hitherto been beyond its jurisdiction, and assumed the authority to intervene extensively and intensively in the activities of both political parties and Israel's parliament, the Knesset, as well as in the appointment of officials, in political disputes, in ethical issues, in matters of national security and in matters relating to the jurisdiction of religious institutions and bodies. This revolution increased in scope and gathered momentum until it reached its climax – which also marked the beginning of its disintegration – with the Supreme Court's declaration of a “constitutional revolution” (1995).
The explanation that Mautner proposes links judicial activism to the anxiety that attacked the “old liberal hegemonic group” when it lost its hegemony. Mautner argues that, after it lost its control of the political institutions and the sphere of public administration, its members “turned the Supreme Court into an important arena for their political and cultural activity,” whereas the Supreme Court for its part supported them “against a background of common cultural identity.” Its justices “joined forces with the liberal secular Jewish group and closely and consistently collaborated with it in order to defend the values that they held in common: the values of Western liberalism.” Judicial activism “provided the members of the former liberal hegemonic group with the means for interfering with the Knesset's legislative activities, thereby appropriating for themselves powers that this group did not enjoy according to the balance of power in the Knesset itself”. Moreover, judicial activism has created a situation in which “political decisions in Israel are made not only by the body of the state's elected legislators, the Knesset, but also by the Supreme Court and the other courts of law in the country – institutions that operate within the framework of the world of liberal values and where the presiding judge or justice is generally a member of the former liberal hegemonic group.” In Mautner's eyes, the meaning of judicial activism is the Supreme Court's admittedly unconscious ambition to increase the use of its powers in order to help a sector that has been very much weakened. The other side of the coin, he maintains, is the alienation of the other groups.
In my view, another thesis can explain the activist revolution. I believe that the activist revolution was not the reaction of the Supreme Court's justices to social and cultural change but is rather an extension of the secular, liberal culture that the Supreme Court has always held dear. In my opinion, judicial activism developed from that same secular, liberal culture and was primarily a result of the Supreme Court's collaboration in the judicialization of politics and public life that was occurring during those years in many Western countries, including Britain, Canada and France. An equally important factor was the position taken by Supreme Court President Meir Shamgar and his successor Aharon Barak – namely, the need for increasing the judicial review of governmental mechanisms. Both Shamgar and Barak pressed for this stepped-up judicial review even before they were appointed Supreme Court justices.
If Mautner's description is correct, the conclusion that emerges from it is that the Supreme Court is neither objective nor neutral and that it is instead a one-sided body speaking on behalf of a shriveled-up hegemonic group. The Supreme Court is identified with the “left,” it has alienated religious Jews, and, in recent years (as Mautner justifiably notes), it has even become the target of vitriolic criticism from some of its traditional supporters.
Although Mautner himself has on more than one occasion criticized judicial activism, he does not propose that the Supreme Court return to the days of judicial self-restraint, that it cancel the constitutional revolution or that it abandon the struggle for liberalism. Quite the contrary, he writes, “the Supreme Court obviously should continue to fulfill its function as an important agent of liberalism's values,” and its actions should be aimed at providing it with the power “to conduct a legitimate conceptual war over Israel's ethical image, rather than a war over the Supreme Court's good name or a war over the public's trust in it.” On the other hand, Mautner believes, the Supreme Court must take action in order to stop the alienation.
But here is where the problem lies: When his proposals are looked at more carefully, it is tempting to ask whether he is, in fact, taking the bull by the horns. For instance, one of his recommendations is that the Supreme Court's verdicts should include elements from Hebrew law. This recommendation has three weak points. First, Supreme Court justices who did not receive an advanced Torah education would remain ignoramuses regarding the content and richness of the halacha, Jewish religious law. Can this situation be altered without a substantive change in the composition of the Supreme Court, in the composition of the teaching staffs of law faculties, and in the admission requirements for law faculties? Second, Mautner recommends Hebrew law as it was presented in the vision of the Movement for the Revival of Hebrew Law, which was active in pre-state Israel in the 1920s and 1930s. The problem also lies in the fact that the movement's agenda aimed at creating a judicial system in the Jewish state that would be secular and modern and which would be based on Hebrew law. It is hard to believe that this kind of agenda could reduce the alienation felt by the religious Jewish community in Israel. Third, the hostility of many religious and traditional Jews in Israel toward the Supreme Court is ideological, political, class-based and ethnic, rather than judicial.
Is there any remedy for the fact that the activist revolution consumes its proponents? Or for the threat voiced by politicians to “castrate” the Supreme Court? Or for the obsessive hostility to the Supreme Court? Or for such expressions as “empty people who do not take things seriously” (Rabbi Ovadia Yosef) and a “branch of the [left-wing] Meretz party?” Or for the harsh criticism from the academic community? Or for the fact that Supreme Court justices must be provided with bodyguards? I believe that there are remedies. However, a consideration of such remedies would be beyond the parameters of the present discussion.
A multi-cultural liberal paradigm
As noted above, Mautner does not suggest the option of abandoning liberalism as the basis of the Israeli regime. However, he does suggest that the current paradigm be replaced by a new multi-cultural liberal one. The second half of his book presents this idea. It develops and discusses proposals that should be adopted by the state and by its civic society. Actually, this section, which is more abstract than the first half and which distances itself from the obsession concerning the “Supremes,” is, in my view, ground-breaking and eye-opening and it encourages Israeli liberalism to criticize itself. I highly recommend that people read the book's second half.
The principal differences between the classical (“comprehensive”) liberal idea on which Israeli law is based and the multi-cultural liberalism that Mautner proposes are related, as he explains in the book, to the attitude toward such questions as “What is the ideal way of life that the individual should lead?” and “What role should be played by the state and the system of law and order?” Classic liberalism, the product of the era of reason and enlightenment, is, at its core, anti-religious. It is an individualistic, atomistic philosophy whose center is the individual. It assumes that human beings are reasonable and rational and believes that the ideal way of life is one in which human beings can translate their choices and autonomy into reality. Classic liberalism places the individual squarely in front of the state without any intervening agency, such as an identity group or a cultural group, and regards the state as an instrument for attaining the ideal way of life.
According to Mautner, these assumptions and beliefs no longer suit Israeli society, which has abandoned the melting-pot idea. Classic liberalism cannot handle the rift between religious and secular Jews or the rift between Jews and Arabs without the instrumentality of struggle.
Mautner, who opposes the idea that liberalism should be abandoned, fears that the religious or national struggle could lead to disaster. Thus, he proposes that classical liberalism be replaced by “political liberalism” because, in accordance with liberalism's principles, there is no justification for the universal imposition of a single philosophy of both human nature and the meaning of life. He proposes that the normative arrangements in the state express the basic normative perceptions of all the main cultural groups. According to Mautner, there are six such groups in Israel: the secular and religious Jews; the Muslim, Christian and secular Israeli Arabs; and the Druse.
The political liberalism that Mautner draws upon from various thinkers, chief of whom is John Rawls, should be a liberalism that represents agreement among groups that do not agree with one another. The political liberalism that Mautner proposes will not be based on any particular philosophical outlook. It will instead be based on the understanding that only some of the individual's needs can be supplied within the general context of the state. It will champion the decentralization of norms, that is, it will accept the idea that only some of the normative arrangements will be established at the state level and that other arrangements will be established at the sub-state level; furthermore, it will accept the idea that different norms will apply to different civic groups. It will teach citizens to be tolerant, and it will be different in principle from the framework of arrangements of modus vivendi because it will perceived by the citizens of the state as worthy and ideal and because it will be founded on long-term agreements on principles, as opposed to short-term agreements.
Mautner argues that Israel already has the beginnings of a pluralistic liberalism, as seen, for example, in such topics as local government, education and family status.
Regarding certain subjects, Mautner proposes that there be increased decentralization, while, regarding other subjects, he proposes decreased decentralization. He believes that most of the members of Israel's religious community are interested in a liberal democratic society and that pluralistic political liberalism can be attained. He supports the definition of the State of Israel as “Jewish, democratic and multi-cultural.” As he attests concerning himself, it is possible to argue that he is overly ambitious. His response is that life is complex and that there is always the need to obtain equilibrium among the various considerations.
However, the major importance of this book lies not in its concrete proposals. It lies in the discourse that it opens up, and Mautner clarifies that, in our post-hegemonic and postmodern world, there is a need for rethinking the concept of liberalism.
Dr. Michal Shaked is writing a monograph on former Supreme Court president Moshe Landau
Translated by Mark Elliott Shapiro