Can Israel balance being Jewish and democratic? The view from the bench

Former Supreme Court president Beinisch voices optimism about the future of Israel despite current tensions and threats to its democracy.

By STEVE LINDE
Interview with Yohanan Plesner, the President of the Israel Democracy Institute, and Justice Dorit Beinisch, the former President of the Supreme Court of Israel
FORMER SUPREME Court President, Justice Dorit Beinisch and Israel Democracy Institute President, Yohanan Plesner, believe that Israel can strike the right balance between being a strong democracy and a Jewish state. In an interview at the Israel Democracy Institute in Jerusalem, they both said that in spite of the challenges and threats to Israel’s fragile democracy as it celebrates its 70th birthday, they are upbeat about the future of the country.
How do you see the state of democracy in Israel today?
Beinisch: I believe our democracy will be here for years, but it’s a fragile democracy.
There are many dangers we have to overcome if we truly wish to sustain a liberal democracy, despite the multifaceted challenges we face in Israel. Israel has many problems, but I want to believe and do believe that our democracy will remain stable in spite of the dangers that we face. Considering the history of the State of Israel, it’s actually a miracle that we have established a democracy here, amidst such difficult conditions. At the beginning it was hard, but I believe that we have many significant achievements to show for it. The problem will be to uphold our achievements, given the global climate and the turbulence of our region. This is a challenge that we, as a nation, will have to confront in the future.
Plesner: There are some unique pressures on Israel’s democracy, and some global trends that are threatening Western democracies in general, as the explosive growth of social media. Israel’s democracy has proven to be extremely resilient if we consider the challenges it has had to overcome since the establishment of the state. At the same time, we are discovering how fragile it is. I believe the next few years are going to continue to pose significant challenges to our democracy.
Thankfully, I think we can count on the Israeli public. It turns out Israeli public opinion is deeply supportive of Israel as a Jewish and democratic state, and favors constitutional freedoms such as freedom of speech. Our institutions have also proven to be strong.
So I believe that we have the two pillars needed to maintain and foster Israeli democracy; the support of the people and robust institutions. But both of these need nurturing.
Justice Beinisch, how do you see the relationship between the judicial and executive branches in the country?

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Beinisch: There is tension. It happens everywhere. It is normal for there to be a tension between the judiciary and the legislature, because the judiciary also applies judicial review on the legislature. Yet in Israel, judicial review is not practiced enough.
The legislature does not fully comprehend the significance of judicial review, because Israel has never had a constitution. We have a parliamentary system, so extending the court’s responsibilities to reviewing legislation isn’t easy, and this tension is endangering the strength of the court, which is crucial for a functioning democracy.
As Israel approaches its 70th birthday, do you think it needs a constitution?
Beinisch: I’m sure we need one, but I’m not too optimistic about the prospect of adopting a constitution. Considering the current situation in the Knesset, I often think it’d be better to wait, because I don’t think we can rely on our current legislature to pass the best possible constitution. Actually, we lost our constitutional moment when the state was established. There were many reasons for that, and since then, the process has been very difficult. It will take time Plesner: There are some major underlying disputes that have yet to be resolved. One concerns the constitution. We are a functioning democracy without a foundational document, which is unique. We haven’t decided basic questions of religion and state. We left them undecided, and that creates constant pressures and tensions. Should Israel be more Jewish or more democratic, and how do we strike the right balance? The social fragmentation in Israeli society adds additional pressure to the system, as do ongoing security pressures. So when you take into consideration all of these pressures, it underscores how remarkable it truly is that we have preserved a functioning democracy against all odds.
Some observers argue that there has been an erosion of democracy in Israel, and they point to a range of bills that have been presented to the Knesset. Do you see this erosion or are you hopeful that this process will be reversed in the future?
Plesner: Definitely over the past seven or eight years, we’ve seen a wave of populist legislative and policy initiatives. This is obviously bad news for Israeli democracy, for its strength, resilience and viability. At the same time, we have to recognize that the vast majority of those initiatives have been suspended, mitigated or taken off the table, and very few have actually passed into law.
If this wave of populist initiatives continues, it might constitute an increasing threat to our democracy. But in comparison to other countries, like some in Eastern Europe, where we’ve witnessed a subversion of constitutional arrangements over the past two years, very little has changed in Israel except for a tainted discourse.
What do you see as the main challenges and threats to Israeli democracy, including the tainted discourse?
Beinisch: The problem is that there is still no consensus as to what it means to be a Jewish, democratic state; we don’t know how to balance these two components of our state. I think almost everybody agrees that it’s a Jewish and democratic state. But what does this mean? There is no agreement between religious and secular groups on what it means to be a Jewish state. And moreover, what does it mean to be a democracy? Our executive branch and our politicians say democracy is the rule of the majority. Of course, there is no democracy without a majority. But this is not enough. What about the rights of minorities? What is your own answer to those questions? Beinisch: Well, I think we can find the right balance. There is no doubt that since World War II, when we speak about democracy we include the idea of democratic values, human rights and protecting minorities.
This is understood almost everywhere. I’m afraid that this understanding is now on shaky ground, and not only in Israel. We all understand that it’s not enough to have a majority. When it comes to Judaism, this state wasn’t established as a religious state.
Halacha (Jewish law) was not part of our judicial system from the beginning. Israel is about Jewish values, a homeland for Jews, and here lies the tension. What does it mean to be a Jewish state? I think we have a long way to go until we can reach a consensus among all the very different sectors of our society.
Can Israel strike a balance between being a Jewish and democratic state?
Plesner: Of course, this is the essence of Zionism, and it is also the essence of what this institute, the Israel Democracy Institute, is all about. It’s our role, and it’s what we expect of our leaders, to try to constantly find the balance between being a nation state of the Jewish people and a democratic state that is committed to equality for all its citizens.
Finding the right balance is a major challenge, because it’s a reflection of deep tensions within Israeli society. If you look at some of the sub-sectors, such as the ultra-Orthodox community, they’re a growing and important element of Israeli society. And if you examine their perception of our democratic values and institutions, you see what a major challenge it is to integrate them into our broader systems such as the job market, military service and education.
Does Israel also not require a political solution to the Palestinian issue if it is to remain a democratic state?
Plesner: As long as the conflict with the Palestinians is unresolved, it’s yet another pressure on our democracy. For example, it is contributing to an ongoing struggle between the fringes of the settler movement and the rule of law. This also erodes trust in the Supreme Court, which must intervene on the side of the rule of law.
Are you optimistic about the future? What is your vision, and what is your message to the next generation?
Beinisch: I once heard someone say that I’m an optimistic pessimist. Without optimism, you cannot do anything. But I must say that I am worried. I’m a worried optimist. I can’t say what our future will bring--for our children, and with me, it’s for my grandchildren already. The aim l, I think, is to ensure our values continue to thrive in Israeli society. We also have major gaps in our society, economic and social, which have a significant influence on people’s views. So there’s a lot to do. My message is not to give up, we fought hard for our achievements, and we must uphold them by continuing to fight for them. We cannot lose sight of our main goal, which is to stay here as a Jewish and a democratic state. So we have to work for that. One of the tools is to bridge the gaps that divide us. As a judge, I can’t say what the political solution is, but we must strive to achieve a solution.
Plesner: Alongside our challenges, there is much reason for optimism. First of all, we see an Israeli populace that is proud to be Israeli and uninterested in emigrating. We even see high levels of pride among Israeli Arabs. More than half are proud to be Israeli, feel solidarity and feel relatively little alienation. They feel alienated from the political system, but not from the state and from their Israeli identity.
I think this is a good starting point: The vast majority of Israelis are optimistic about the future of the Israeli state. With this outburst of optimism, positive changes are taking place among the people. The major wave of immigration from the former Soviet Union has been successfully integrated, there are now significant changes taking place among the ultra-Orthodox community and among the Arab minority. Almost 80 percent of the Arabs want their representatives to be part of the government, in the governing coalition. One couldn’t imagine this just a few years ago. So there are a lot to build on. When taking into account the challenges, I don’t believe any other state in the world could have preserved a stable democracy when facing such major social and security challenges. So when we take into account all the positive aspects; the human capital created by our people, our extraordinary resourcefulness, I think as long as we hold on to our fundamental values and continue to innovate, there’s no reason why in about 30 years, as we move towards our 100th birthday, we won’t be one of the leading democracies in the world, and among the leading economies as well.
Beinisch: I agree with much of your optimism. We have touched on our many problems, and we do have many problems, but we also have to see the bright side. I hope the bright side will prevail and become the strong side. I want to believe in it, because there are many areas in which we can be proud of the achievements of this country; cultural, scientific and others. We have fertile ground for growth.