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Menachem Mautner and Evelyn Gordon on the Supreme Court, and others.




Liberalism and the Court
TO THE EDITORS:
I would like to respond to Evelyn Gordon’s review, “Liberalism’s Endgame” (AZURE 36, Spring 2009), which deals with my book Law and Culture in Israel at the Threshold of the Twenty-First Century.
Her review is divided into two parts. The first deals with my interpretation of the extensive changes that occurred in the Supreme Court’s rulings during the 1980s and 1990s. According to my interpretation, a certain segment of Israeli society, which I call the “liberal former hegemons,” lost its status as leader in politics, culture, and civil society. As a result, this elite redirected some of its political activity to the Supreme Court, which in turn was only too happy to cooperate. This occurred, I explain, because the court, more than any other branch of government, has been identified since the establishment of the state with the introduction of liberal values into Israel’s political culture. Gordon adopts this interpretation and even commends it.
In the second part of her review, Gordon discusses my proposal for how Israel should be perceived in the coming decades. I suggest that we should think of Israel as a multicultural state whose population is composed of three large cultural groups (each, of course, divided into many subgroups): secular Jews, religious Jews, and Arabs. As such, I conclude that Israel should define itself as a “democratic and multicultural Jewish state.” I also assert that the multicultural aspect of Israel creates two types of problems, the first relating to the “struggle for the center” that stems from the profound lack of consensus between these three groups on the nature of the government, the state’s laws and political culture, and the definition of the state itself; and the second to “relations between the center and the periphery,” i.e., between the liberal state center and the non-liberal cultural groups living in the state. To tackle these problems, I offer detailed proposals based primarily, although not exclusively, on liberal political theory and the doctrine of human rights. It is with these proposals that Gordon takes issue.
One of Gordon’s main criticisms is that, contrary to my proposal, Israel cannot be both a Jewish and a multicultural state. She writes that this possibility “defies logic and common sense,” because “a mul­ticultural state is, by definition, one that gives equal weight to all cultures and affords them equal opportunities for self-realization.” A Jewish state, by contrast, “is one that enables the Jewish people to express its own culture at the national level.” Therefore, Gordon claims, my proposal “eliminates Israel’s Jewish identity.”
As I show in my book, however, the concept of “multiculturalism” emerged in the second half of the twentieth century out of the recognition that the extensive unification and assimilation processes that nation- states underwent in the previous two centuries did not succeed in creating a completely culturally homogeneous population in any country. I also show that the concept of multiculturalism has been utilized in the past four decades “in a series of states by the institutions of the state, by the institutions of the civil society, and in the framework of political and public discourse.” Therefore, I point out, “a basic premise in the literature written about th[is] concept is that it does not have one meaning and that it is used in various contexts, each of which is given a different content.”
In my book, I also point to the fact that, from the 1990s onward, a series of scholars have been using the concept of “multiculturalism” to describe the situation in Israel (and that more than a few scholars claim that a “culture war” is taking place here). I suggest applying the concept of multiculturalism to the Israeli situation in view of Israel’s unique circumstances, namely that a) it is the nation-state of the Jewish people; b) the Jews living in Israel are divided along secular and religious lines; c) about a fifth of Israel’s citizens are Arabs; and d) the main cultural groups living in the state are developing different visions of the basic principles by which the state should be run, as well as of its cultural identity. I argue that the main premises of “multiculturalism,” including what I call “the virtues of multiculturalism,” are likely to go some distance toward improving relations between the different cultural groups living in the state.
I did not argue, however, that we need necessarily think of Israel as a multicultural state at the expense of its perception as a Jewish one. As I explain in my book, “There is nothing unusual about the fact that a country perceives itself as having an identity composed of several elements. Israel’s current definition as ‘a Jewish and democratic state’ already contains multiple elements. There is therefore no impediment to the fact that a third element—‘multiculturalism’—be added to the two current components of the definition.” I also added that, just as each person has many identities (national, religious, sexual, professional, etc.), “this characteristic of multiple identities can be applied also to a state, despite the fact that over the past two hundred years, under the influence of the dominant paradigm of the nation-state, we have become accustomed to thinking of states as having one dominant national identity.”
To complicate matters further, I also propose that, in addition to cultivating its Jewish characteristics, Israel create an “inclusive identity” common to all its citizens. By this I mean that Israel should balance its various identities as a state that is Jewish, democratic, multicultural, and also Israeli (similar to the manner in which every person must balance various competing identities during different periods of his life—for example, his professional identity, his parental identity, his spousal identity, etc.).
When Gordon claims that my proposal is designed to rid Israel of its Jewish identity, she is not just ignoring the fact that I do not want to erase the “Jewish” element from the definition of the state. She is also ignoring a pivotal suggestion that I made—namely, that the platform of the Movement to Revive Hebrew Law should be adopted—with the aim of ensuring that Israeli law relies extensively on Jewish law, which in turn would serve as an important platform for its continued development. “The State of Israel,” I wrote, “must serve not only as an ‘overnight shelter’ for the Jews, but also—and perhaps primarily—as a framework for state institutions and institutions of a civil society, which endeavor to continue the cultivation of Jewish cultures. The state institutions must, therefore, strive to develop Jewish law—the legal creation of the Jewish people—as part of the advancement of state law in its democratic-liberal format.”

Gordon also presents me as proposing to adopt the doctrine of human rights and the concept of human dignity for the purpose of reshaping Israel’s government, political culture, and law. In so doing, she argues, I am trying to subject the state’s citizens to standards that would be determined by both Israel’s Supreme Court as well as courts outside of Israel. But this portrayal is misleading. I am suggesting that the doctrine of human rights or the concept of human dignity be put into effect not in the context of “the struggle for the center,” but rather in the context of “relations between the center and the periphery,” i.e., as criteria for examining whether the state’s institutions should intervene in the cultural practices of non-liberal groups living in Israel (for example, honor killings or widespread discrimination against women). My recommendation is that the doctrine of human rights and the concept of human dignity be developed in the coming decades in all courts around the world, with the goal of examining the acceptability of problematic cultural practices and at the same time creating an ongoing dialogue among these courts. I offer the doctrine of human rights as a standard because its principles are recognized by all the world’s major religions and cultures, and I do so while expressly rejecting the dominant trend in recent liberal thought whereby the political theory of liberalism is presented as the standard by which even non-liberal cultural practices should be evaluated. I reject liberalism in this context because I see it as but one particular culture among others; by contrast, the doctrine of human rights enjoys a significant degree of universality.


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