Copyright © Ariella Atzmon, 1998
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The Narrative of liberal Jurisprudence contra Jewish Halacha
The case of Israeli public sphere.
To explain Israeli democracy and its complicated relationships
with elements of the legal system, I shall use A diagram which
will serve to elaborate the subject. The Israeli socio -political
arena is likened to a battlefield where three focal elements are
linked in a continuous endless confrontation with no chance for
resolution. This is illustrated as a triangle (figure 1) with
each apex representing one of three elements termed: 'The State',
'Democracy' and 'Judaism'.
The narrative of Israel's intricate public domain is determined by the necessary coexistence of these three interrelated key elements.
'Judaism' 'The state' Figure 1 (the three element which determine
the Israeli public sphere)Israeli democracy's uniqueness is linked
to the most essential characteristics of Judaism, defined both
as a religion and a nation. The State of Israel was therefpre
established as a 'national shelter' for the Jewish people the
world over. To unravel the entangled interconnection of these
three aspects of Israeli reality, it will be useful to include
the aporetic aspect of Zionism in the complex definition of Judaism.
By adding Zionist terminology, we shall find that Israeli democracy
is uniquely loaded with irreconcilable
contradictions which I shall later define as the case of a 'Differend'. Although the fact that all three aspects mentioned above are incontrovertibly interrelated, for didactic reasons I will focus upon each dyad separately.The controversy between Jewish Halachic law and Liberal jurisprudence, in the specific case of Israeli democracy, is a symptom of profound contradictions inherent in the very difference between classic liberal ideas and orthodox Jewish thought. .The first contradiction, typical of the Israeli sphere lies in an aporetic controversy between the two apexes - Judaism versus what is titled 'the State of Israel'. This contradiction originates in two distinguished philosophical perspectives regarding the nature of human subjectivity.According to the spirit of enlightenment rooted in Cartesian thought, human beings are conceived as sovereign and autonomous individuals. The term 'Individual' refers to something quite different from the controversial term referring to the human being as a 'subject'. The term 'Individual' presupposes that human beings are intellectual agents, free thinkers who are not coerced by their actual historical, cultural or socio-political circumstances. According to this view 'Individuals' are fully conscious, and can experience self knowledge. On the other hand, the term 'Subject' (in the Heideggerian notion), conceives human beings to be products of a signifying chain "The World is created by The Word". The category of the 'Subject' however questions the notion of self as synonymous with consciousness. It is quite obvious that conceptualizing human beings as subjects coincides with orthodox Jewish assumptions.Here I would like to elaborate the linkage between attitudes regarding the legal system and various approaches vis a vis the problem of the individual and society. The way views are related to the human subject's self image has crucial implications for the basic attitudes to 'law', 'Morality' and 'Ethics'.Liberal views portray the human being as a rational individual, a conscious actor able to grasp the basis of his actions. This belief in the individual's rational, free choice (essential for the existence of liberal democracy) is compatible with the liberal traditional approach to law. We may add that liberal legislators strive "to reveal through pure reason a picture of an unchanging and universal unity beneath the manifest changeability and historical variability of law, legal institutions and practices, and thus to establish a foundation in reason for actual legal system" According to the opposite view, human beings are socialized once language is acquired, and it is language that constitutes the human being as a 'subject'. Should we be reminded that this view coincides with Judaism as well?We may conclude that liberal legal theory ( mainly formalistic-positivistic versions), claim to be politically neutral and taking a hold on a method of resolving conflicts objectively. This claim implies a pragmatic conclusion which regards all conflicts as litigations. This liberal postulate regarding the legal system, leads us to another essential topic, which is related to the law's inclination to be viewed as distinct. To use Stanley Fish's words "law.. desires that the components of its autonomous existence be self declaring and not be in need of piecing-out by some supplementary discourse......" The liberal legal system drives back any attempt to threaten its autonomy. Since the liberal legal system insists on autonomy, by identifying categories like 'legally valid' with 'morally right', we may infer that legal judgments (or obligations) result from moral intuitions. And again in Fish's words "many moralities would make many laws, and the law would lack its most saliently desirable properties generality and stability" This might be the reason why law is extremely suspicious of becoming contaminated by morality, or ethics. Classic liberal tradition repudiates textual hermeneutic interpretations. Regarding law as equated with morality and ethics is a view which illustrates quite incisively how the notion of interpretation is reckoned. Now we can relate to the problematic topic, namely: hostility towards interpretation as an act of deconstruction. While liberal law by its nature rejects hermeneutic interpretative activities, Halachic law is established by an endless process of interpretation.. Thus interpretation is conceived as 'thinking the between' an operation which will never come to an end, because the human 'subject' is constructed by language's signifying chain.The resemblance between Jewish Halacha and post-structural thought comes into view where Judaism dictates a legal system which entirely negates the concept of 'individualism', 'pure reason', or 'free choice'. Jewish Halachic tradition created the notion of 'Seventy faces to the Torah'. The official Israeli legal system which is founded on the basis of secular liberal western law and has to live in an eternal aporia. We may conclude that: the rule of the law as embedded in Western legal and political thought is fixed in the basic metaphysical belief in concepts of justice and legal obligations. So, while these concepts originate in universal essences which are contemplated by rational individuals, the Halachic law as 'The Torah of Life' rejects the notion of the 'individual'.The second controversy is associated with another aporia concerning Judaism vs. democracy. In the wake of the previous remarks regarding the way human beings are conceptualized, the topic of individual free choice should be analyzed more comprehensively. Some implications of this analysis might complicate the discussion even more.Liberal democracy is typified by rhetorical styles which are dominated by scientism. By scientism I mean legitimacy bestowedin advance on statements in a scientific form. The reason these statements are publicly accepted is that they provide "neutrality", based upon 'rationality' and 'objectivity'. This kind of rhetoric gains its authority by 'signalyzing the linguistic sign'. It clearly indicates full agreement with the liberal belief in prudence and the individuals' deliberate 'free choice'.But, if human being are not conceived as full conscious free agent, if consciousness is grasped as cuptured by the autonomous play of language, then human beings are subjects of words, where words convey multiple meanings. Following all versions of post-structuralism the spoken subject (in contrast to the speaking subject) is shaped by the play of a culturally signifying chain. This view which dovetails with the main presumption of Judaic belief, must result in a full denial of the liberal-democratic paradigm. However a collapse of the basic principle upon which the democratic state is founded should imply another political system, where juridical activity deflects the free mind and instead puts words and gaps under endless hermeneutic interpretation. The human subject in Halachic law is considered to be guided by divine texts. Texts which by virtue of their divinity preclude the possibility of full textual interpretation. This is not only a denial, it is a negation!To conclude, we claim that there is a gap between the secular liberal notion of state regarding the self as an individual, and the view of the self as subjected to words (words without any primary or ultimate overt meaning), which is a negation of the democratic idea. This aporia is not recognized in the Christian world, because Christianity is able to conceive of human beings as individuals (similar with conservative trends in Judaism). For Christianity, secular law precedes religious law. In Islam and Judaism, however secular and religious law are united under the command of a divine authority. In the next section I elaborate this argument and analyze the distinctions between Judaism and Islam in order to illustrate Israel's peculiarly irreconcilable combination of Democracy, State and Judaism.The third dissonance is reflected in the dyad democracy vs. state. I want to relate this dyad to the concepts of Identity/Identification. It might be useful to examine what 'Israeli identity', means within the framework of Israeli democracy. Does 'Identification' mean to be constituted through community, state, ethnicity, or gender? In that case the expression 'Israeli identity' or whatever is the legal content given to Israeli citizenship, can be understood as a call for identification. A call which strives to direct Jewish citizens into discourses reflecting a denial of the other.Since Judaism is defined simultaneously as both a religion and a nation, it presents a unique case in which the meanings of the terms citizenship, nationality or religious belonging are thus redefined. The fact that Israel was established as a Jewish state, denotes the way in which the terms 'resident', 'migrant', and 'foreigner' are interpreted and signified. If we try to deal with the question: 'What is Israeli identity'? we find ourselves involved with two other disturbing questions: what are the judicial statutes of immigrants in the state of Israel? and 'what is considered Jewish in the context of the 'law of return'?The fact that Judaism signifies a national group and a religion at the same time, is the foundation for an intense need to maintain the spirit of Judaism, based upon common destiny and a deep belief in God's promise to his chosen people. This spirit is revealed in the verse "For from the top of the rocks I see him, and from the hills I behold him: it is a people that shall dwell alone, and shall not be reckoned among the nations" (Bamidbar). This verse is the source of Jewish orthodoxy's aversion to intermingling with 'others' manifested in the creation of obstacles discouraging conversion to Judaism.The state of Israel portrays a new society which proclaims brotherhood within the socalled'melting pot' designed for those who are defined as Jewish. Other minorities who are called 'cousins' at best, or strangers at worst do not count. In the case of Israel, the meaning of identity is confused with identification. The question is whether identity should refer to the concept of citizenship, or to religious belonging. This intricate situation leads to a permanent preoccupation with the question: Who is a Jew? If citizenship is conditioned upon a sense of religious belonging, then the legitimacy of conversion becomes an acute problem. In the light of another verse: "converts are as difficult for Israel as psoriasis", all political/ judicial crises concerning the procedures of conversion to Judaism become clear. Whenever personal identity is confused with identification, we trace a sharp trend towards modes of judicial wrong directed at those who do not belong. I shall refer repudiation of the 'other' characteristic to Judaism, to the way in which the divine contract with God is grasped as a promise to the children of Israel "you shall be my own treasure from among all people... and you shall be to me a kingdom of priests and a holy nation" (Exodus). Jews are perceived as committed to a contractual bondage thus creating linkage between being an observant Jew, and being chosen. This linkage distinguishes Jewish orthodoxy from Islamic fundamentalism. The sense of being chosen is connected with an existential Jewish desire to be hated and rejected as both cause and effect of being 'God's treasure'. This inspiration became the reason for maintaining Jewish community life throughout historic catastrophes. The rewarded contractuality led to a complicated position where The demand for equality was confused with the point of view which resulted from self persuasion of being chosen. Group identification becomes conditional upon the elevation of one particular group's past events at the expense of another group's historical narratives. Non-Jewish singularities are identified by personal biography not by group records. National memories and past narratives do not count. By praising unification Israeli Jews are torn between being Jewish or being Israeli. The conflict depends on the question of whether Israel is a Jewish state, or a state that (only) promises full rights for Jewish people. The essential principle of democracy as majority rule, encapsulates the group definition with which this regime identifies. In Israel's case, 'Identification' is confused because of commitment to the state as a defined territory, under a democratic constitution on the one hand, and commitment to a national, religious ethnic group, on the other. The second choice immediately relegates all non-Jewish citizens to an inferior status. The Israeli Jew is torn between the Zionist revolutionary promise of a new Jewish identity, and nostalgic attachment to the pre-revolutionary stage. The verse 'one nation and one heart', signifies the hegemonic power of Jewish brotherhood while negating creation of a new identity and presents cancellation of 'otherness'. The logic of equivalence which prevails in Jewish society reduces any possibility for genuine implementation of western law.At this point I shall include the problematic issue of Zionism. Zionism is comprised of a range of ideological nuances which unfold between two poles. The continuum ranges from the idea that conceives Israeli identity as established upon citizenship which is based upon territorial grounds, to the notion that Israel is the shelter for Jews from all over the world. The first strives towards a civic society perceiving Israeli identity as a new entity in the process of becoming . An entity however which insists upon complete liberation from any commitment and common destiny with the Jewish Diaspora.The second version firmly declares that 'all Jews are responsible for one another'. We realize that this second view represents the 'melting pot' type of identity which dovetails with the 'Law of Return'. This version expresses suspicion of evvoice that might constitute a threat to the wholeness of the Jewish entity. By definition, all modes of Zionism manifest a demarcation between two different kinds of Israeli identities: Arab identity which is excluded by differing degrees of hostility, and Israeli Identity which up to the present is still somewhat vague.An extreme version, which must no longer be called Zionist, is inclined towards a creating a hybrid identity, consisting of ingredients from all Israeli groups. It includes the demand to be detached from any obligation to the rest of the Jewish community abroad. This radical version, is shared by some Arab Palestinians attempts to charge the concept of Israeli identity with the spirit of citizenship in a democracy which is perceived as a civic society. Reshaping the understanding of Jewish Identity opens creative channels for a synthesis of new hybrid identity engaged in a process which is conditioned upon pluralistic communication. But, this is not welcomed by those who conceive of themselves to have been chosen. We may say that the question of Israeli democracy and its coexistence with the law, has to do with language, meanings and Differend . There is a new trend among sociologists and historians towards revising the articulation of Zionism. This reflects a conflict among those who strive to maintain forms of identification conforming with Halachic law, and those who represent expressions of identity, which emphasize individuality and free choice. Since the Israeli trend which insist upon an hybridic identity' manifests a declaration of war against the basic premises of Zionism, it should be excluded at the end of the day as non-Zionist. Redefinition of Israeli democracy is dependent upon the distribution of power between the advocates of all these trends. Zionism is built on belief in the continuity of Jewish history and the continuous link to the Fatherland. By taking to court the case of history against personal biography, Folk history will always win. This results in the most bizarre manifestations, Zionism, a typical late nineteenth century liberation movement lives in full symbiosis with the Israeli - Jewish judiciary. It ends by perpetuating the reality of the Differend . To sum up we may say that Judaism is characterized by an attempt to maintain boundaries on the one hand and to dilute diversity within those boundaries on the other. The question of Identity has to do with language, meanings and Differend, rather than with social, cultural and the political parameters. Israeli democracy is unique for two reasons:a) It is distinguished from that of western countries because those democracies originated within and alongside Christian culture. As I have shown above, when man is conceived as an individual, there is no contradiction between the secular and the sacred. b) Israeli democracy is also distinct from most religious Islamic regimes because of linkage between the observance of the law and the sense of being chosen. Judaism may be understood as both as observance of the law, and commitment to a contractual divine bondage (which awards the observant with being chosen). We may contend that Judaism views the status of human subjectivity as projected by 'The Word', rather than expressing a self possesion of observing the World objectively.
At this point after illustrating the three unbreachable dyads, I contend that Israeli democracy reflects aporia. It is a labyrinth blocked by dead ends. If we incline towards assimilation of non-Jewish 'others', then Zionism collapses. If we take the other viewpoint conceiving Israel as a Jewish state we shall have to reconcile ourselves to living in a situation where a wrong are done not against Jews, but by Jews themselves!. This tragic condition brings to the last section in this paper, where I would like to elaborate the concept of the Differend in order to illustrate a gloomy but also 'amazing' conclusion. From here, I will proceed linguistically. Language defines what the subject is able to know about the world and about himself. It is related to the reconstruction of history and the fabrication of our most inner experiences. Written materials such as historical textbooks, official government propaganda publications and statutes books, are all enlisted as the collective membrane for meanings in use. Therefore, if we accept the idea about the 'Real', the Real which will never be covered by the meaning in use, then the 'Real' is doomed to silence. It is the moment of silence which signifies the case of 'The Differend'.The irreconcilable controversy between Jewish Halachic law and Liberal jurisprudence is characteristic of the case of the Differend. The concept of 'The Differend' marks awareness of unmarked communication. Lyotard's term for 'The Differend' relates to a case of conflict which cannot be resolved due to the 'lack of a rule of judgment applicable to two discourses'. The concept of 'The Differend' deals with hegemonic discourses which ignore the 'lack of the other'. The 'Differend' stresses the idea of language as a limitation of reality. I shall stress that while the Differend signals silence, litigation is the possibility of settling an argument by using phrases from a common rule. When conflicts are signaled as litigations, differences are ignored, and transgressed.Since liberalism postulate the subject as autonomous, rational and reasonable in the process of decision making, liberal democracies reflect an inherent tendency to replace any case of a Differend (conflict) by litigation. In other words, liberal intellectual thought presumes human beings capable of acting autonomously and this trait as shared by all. Modern legal tradition attributable to this philosophic vantage point, considers universal norms a predetermined outcome of a process of dialogue which ends with the participants' 'consensus'. This view reflects the logic of theories which insist upon turning any conflict into litigation in order to effect closure in the realm of the political public sphere.The 'Differend' stresses the idea of language as a limitation of reality. Reality, in Hebrew - "Metziyut", does not mean what is found - "Metzia", but rather what is invented - "Hamtza'ah". These notions concerning the nature of reality as representation or simulation, reflect the two indispensable images of man (as an 'individual' or as a 'subject'). If post-structuralism grasps the subject as gazed and constituted by the text, then, Jewish orthodoxy much the same, celebrates the subject's total submission to Halachic law (resulting from the subject's free choice). We may conclude that what is common to both post-structuralism and the Judaic tradition is the assumption which regards the human subject as spoken rather than self defining. Paradoxically the notion of democracy based upon the human subject as an unitary free agent poses a problem for Jewish orthodoxy which shares a common vantage point with post-structuralism.Thus, we learn how Israeli existence reflects a reality manifested in an eternal struggle between two irreconcilable discourses. On the one hand are those who support democracy and equality by stressing pluralism and tolerance. However at the same time in the name of the great narrative of enlightenment, and liberal jurisprudencea they are trapped in an disposition that denies the reality of 'the Differend'. On the other bank of the divide, we encounter the revolt of those who refute 'individuality' and sovereignty of human beings, who conceive of themselves as subjects of a divine contract with God. Although they reject the western notion of liberal democracy, they have perfectly internalized the concept of the Differend (Is it not insightful evidence of a post-modern manifestation and the end of all great narratives?).There is no distinction between the meanings of culture and civilization in Hebrew. The Halakhic law followed by Hebrew culture 'Tarbut', means assimilation of the many into the 'one'. Fulfillment of the 'Mitzvot' can be seen as the rule of the group governing singularity. In the spirit of Judaism 'civil' is included in the same notion of culture (Tarbut), with a dissenting voice raised against the possibility of a Jewish 'civic society'. Bizarrely enough both post-structuralism and Jewish orthodoxy share a close and suspicious attitude towards the category of the autonomous citizen with its emancipatory implications.I have argued that while the secular (social and political) movements delineate the spirit of progress, leaving modernity behind, the march towards post-modernity is ultimately left to those who come to terms with what remains beyond the visible, and outside representation. If post modernity stresses the idea that liberal law is an illusion of universality revealed by agreement and consensus, then those considered the most reactionary in the Israel's public domain, are the very factors that take us beyond and outside the terminology of subjectivity.