Haifa 1998
Copyright © Ariella Atzmon, 1998
All Rights Reserved
The Narrative of liberal Jurisprudence contra Jewish Halacha
Law:
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.
'Democracy'
'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.