Book Review – The Crooked Timber of Democracy In Israel

Dahlia Scheindlin, The Crooked Timber of Democracy in Israel: Promise Unfulfilled (Berlin: De Gruyter, 2023)
Review by Peter Eisenstadt

The year 2023 will certainly go down as the strangest year in Israel’s history, and the most consequential since at least 1967. (We now, in March 2024, are still living what might be called the “long 2023.”) It was a year of two monumental events, at first glance not closely connected. The year 2023 actually began a little early, on 29 December 2022, when Benjamin Netanyahu began his 6th term as prime minister, after his coalition won the fifth election held in Israel over a four year span. There was much talk during the “time of the five elections” of the instability of Israeli democracy, and the coalition that took power at the end of 2022 indeed seemed more politically stable than its four predecessors. But it immediately plunged Israel into its greatest period of domestic politically instability, perhaps since the days of the S.S. Altalena. In 2023 the massive weekly demonstrations against the Netanyahu government was not about a single administration and its judicial agenda. The fight was for Israeli democracy, and a debate about what it means, how to preserve and protect it, how to defend it against its enemies, foreign and domestic, and how to strengthen it. And what led the government to pause the push for their un-democratic, so-called “judicial reform” was not the nine months of weekly protests, involving hundreds of thousands of Israeli citizens, but Hamas.

The unprecedented barbarities and atrocities of October 7th were followed by the still-ongoing devastation of the Gaza war that began that afternoon. Although on 1 January 2024 the Israeli Supreme Court struck down the Knesset’s recent change to the “reasonableness” clause that had been the catalyst for the democracy demonstrations, this was, as important a story as it was, basically a one-day coda, and then back to news of the war. But our political task now, as will be the task of future historians and scholars, is to connect the two parts of 2023. What is the link between Israeli democracy and Israeli and Palestinian security and insecurity? Can a truly democratic society be in a perpetual state of war with its neighbors? Is Israel the “only democracy in the Middle East” or rather is it that “only in the Middle East would Israel be considered a democracy?”

Dahlia Scheindlin has been for a number of years been one of the most penetrating commentators on Israeli politics, and those questions and many others are explored in her timely and deeply insightful new book, The Crooked Timber of Democracy in Israel, an exploration of Israeli democracy from Ben-Gurion to Ben-Gvir, both in theory and practice. When I think of the strengths and weaknesses of Israeli democracy, what first comes to mind first is the unique Israeli obsession with not being a “freier,” best translated as a sucker or patsy. A freier is one who hasn’t yet realized that rules such as traffic laws or queuing on lines exist only for those too stupid to follow them, and that life with all of its complexities grants a permanent exemption from rule-obedience to those with the chutzpah to take it. For secular Israelis, perhaps one reason that not following rules achieved such cultural significance was to make as sharp a division as possible with the Haredim, for whom, to outsiders, the whole point of their lives can seem to be to submit themselves to the yoke of rules, as many as possible, the more onerous and binding the better. Israelis have never decided whether the essence of democracy is the freedom to follow rules or the freedom to not follow rules.

David Ben-Gurion was definitely not a freier. Scheindlin quotes David Ben-Gurion, in the 1930s, sparring with the Revisionist Zionists for control of the Jewish Agency, as saying “we have a principle more dear to us than democracy, and it is the building of Palestine by Jews.” The new Zionist man and woman, thought Ben-Gurion, were creating a society of non-freiers, Jews tired of being diaspora patsies, people who would knew when to follow rules (the rules Ben-Gurion liked) and when not to do so. And so for Ben- Gurion, argues Scheindlin, democracy was a nice idea, as long as it didn’t curtail his power too much.

As for Ben-Gurion’s great rival, Vladimir Jabotinsky, his views on democracy were at once more liberal and more illiberal than Ben-Gurion’s, leaving a “complex legacy” that, as Scheindlin argues, “sometimes seems irreconcilable with itself.” Jabotinsky, much more directly than Ben-Gurion, wrote of the importance of democracy as a Zionist ideal, and even of power sharing with an Arab minority. But that was always premised on first creating a Jewish majority. One problem with democracy is that the principle of “one person, one vote” always works better if you are confident that you have more persons and votes on your side. Until 1948, it was not clear where this Jewish majority would come from or, as Scheindlin says, that among the Zionist leaders of the Yishuv, “democracy in a robust sense was compromised, secondary, and subordinate in the overriding aim of creating a Jewish majority.” (Israel solved the problem of democratic representativeness in 1967 by adopting a “one person, no vote” policy for Palestinians in the newly-conquered territories.)

In 1948 Israel promulgated a Declaration of Independence – one that, as Scheindlin notes, does not include the word “democracy.” And Israel remains one of the very few democratic countries without a constitution. There were many reasons for this, including that defining the limits of established religion in a country in which shul and state were promiscuously co-mingled would have been politically difficult, and perhaps especially, not wanting to spell out the minimum rights afforded to Palestinians in a country in which they were viewed as a hostile and unwanted minority. In 1949 Ben-Gurion opposed the idea of a citizenship law because civil rights for Arabs “undermine our moral right to this country.” (And when a citizenship law was finally passed in 1952 a majority of Palestinians did not qualify.) Most fundamentally, Ben-Gurion opposed a constitution because he came to “oppose the very principle of limiting the power of the state and the legislature, of hindering the rule of the majority.” The opposition to the principle of judicial review did not begin with Netanyahu. In 1948 Ben-Gurion stated that “the American constitution has turned into a conservative, reactionary institution that stands against the will of the people,” and he well might have been largely correct in that assessment of the American constitutionalism, pre-Brown v. Board of Education, but at least the US Constitution grapples with the problems of eliminating all anti-majoritarian safeguards in governance. To address this, in 1950 Israel adopted the notion of “Basic Laws,” providing a sort of quasi-constitutional patina to a non-constitutional legal system, though they only require a parliamentary majority to be adopted, amended, or repealed. And until 1992, most Basic Laws concerned governmental structures and had nothing to say about human rights.

In any event, Israel was no in rush to promulgate Basic Laws. It was not until 1958 that Israel approved its first one, so laws as fundamental, as basic, to the structures of Israeli governance and society as the Law of Return (1950), the Abandoned Property Act (also 1950), and the Law of Rabbinic Courts (1953) are not Basic Laws. It was not until 1969 that Bergman v. Ministry of Finance, established something like the principle of judicial review by the Supreme Court, though it was a far weaker version than that found in American jurisprudence. It was not until 1992 that Israel adopted a Basic Law, the Human Dignity and Liberty Act, that addressed human rights, and this was eroded and modified by the Nation- State Basic Law of 2018.

Scheindlin concludes that “the least democratic decades” in Israel’s history were the first, from 1948 to 1966, when Israel’s Palestinian residents were under a military regime that attempted to control every aspect of their lives. And it was during these years that the Labor Zionist hegemony, and its institutions such as the Histadrut, were at their most ubiquitous and overbearing. This began to crack thereafter, and perhaps the deepest irony Scheindlin’s book is her contention that the decades after 1967 saw a real expansion of internal Israel democracy, at the same that the conquests of 1967 gave a profound new impetus to Israel’s anti-democratic forces. The debate over the Israel’s future, with the decline of Labor Zionism and the rise of Likud in the 1980s and 1990s, created, for the only time in Israel’s history, some real competition between the center-left and center-right coalitions, and as Scheindlin notes, “Israel looked briefly like a two-party system.” Dovish political parties, like Dash, Ratz, Shinui, Hadash, and Meretz seemed to be proliferating and gathering momentum, while in 1988 the Knesset banned Kach, the party of Meir Kahane, from running in the next election,

calling out its “incitement to racism.” As noted above, the push for civil rights finally resulted in a Basic Law passed in 1992, as piecemeal and inadequate as it was. In the 1990s gender equality, LGBTQ rights, even somewhat loosening the grip of the ultra-Orthodox rabbinate over civil society seemed to be progressing. And most importantly, there was a peace process that might actually address Israel’s most basic problem was underway.

But we know happened next, or what didn’t happen next, the so-called “turning point in Israel’s history that didn’t turn.” After 1996, with the first election of Benjamin Netanyahu as prime minister, the parabola of democracy in Israel had reached its apex, and then began its slow but steady vertiginous descent. In retrospect, certainly from a post- October 7th perspective, the single most significant event in this decline was the 2005 unilateral disengagement from Gaza, which revitalized the Israeli far right. The disengagement violated their assumption that all Israeli governments would, in the end, defend their liberty to settle, in Scheindlin words, “in all parts of the land,” and certainly that no Israeli government would ever forcibly remove them from Gaza. And they couldn’t believe that Ariel Sharon, as prime minister, as head of Likud, their party and the representative of their side, had done this. There needed to be a party to the right of Likud and Likud needed to be pushed to the right. The Gaza disengagement sparked the rise of the fascist right, and breathed new life into the fading embers of Kahanism.

For everyone else, the need for the disengagement should have been evidence that the settlement enterprise was dangerously overextended, that Israel could not indefinitely juggle Gaza, the West Bank, and East Jerusalem, while ignoring legitimate Palestinian aspirations for self-determination. On October 7th the juggling ended. The barbarities of that day will forever be seared into Jewish memories. Everything fell down. All of the forces of the IDF will not be able to put things back together again. And a purely military solution is the only thing that the current Israeli government knows how to do, striking back against Gaza in what amounts to a barely controlled rage, largely indifferent to the fate of civilian Gazans. Many wars have no winning side, only losers. There will be no winner of the Gaza War.

Scheindlin’s book had the misfortune to be published in September 2023, sort of like publishing a book about Israel in May 1967. Certainly, many of the old October 6th realities of Israeli and Palestinian life are gone forever. The question of democracy, that so dominated Israeli debate in 2023 until October 7th, seems insignificant, a second-order internal Israeli matter in comparison to the horrors and the global implications of the Gaza War. However, the question of the future of democracy in Israel, and the relevance of her book, has only grown more significant since its publication.

When it comes to democracy in Israel, as Scheindlin shows, there never has been a golden age, and there can be, or should be, no nostalgia for a past that never was. Israel was built, as the book’s title emphasizes, on crooked timber, the title borrowed from a quote from the German philosopher Immanuel Kant, that “out of the crooked timber of humanity no straight thing was ever made.” Anything that Israel builds is likely to be somewhat off-kilter, especially anything having to do with Palestinians. Everything that Israel has tried, for a century, has failed. Palestinians have their own failures, but neither side can take comfort or exculpation from the failures of their counterparts. Israel can take another lesson from Kant, one of our great moral philosophers. He insisted that a law is not a valid law unless you try to make it apply to everybody, and make it universal. A country with two of sets of laws for two different groups of people is not a country with twice as much law but a country with no laws at all. Lawlessness begins when people can choose what set of laws they wish to follow. Lawlessness happens when people think there are no negative consequences for not following rules or laws, or when a nation tries to maintain its own sense of security by enforcing the insecurity of others. That will end, perhaps, in the needed post-war reckoning.

There was, after October 7th, an initial outpouring of sympathy for Israel and for those murdered in the Hamas atrocities. Much of that goodwill for Israel has since been eroded. I am not sure how much of a rise in antisemitism there has been since, but there certainly has been a vast increase in what is being called “anti- Israelism;” those who look at Israel and see nothing but a sordid history of a murderous colonial settler state. This is just a caricature of a very complex history, but it will only be effectively refuted if Israel can summon the best aspects of its democratic past. This was on display during the democracy protests of 2023, with its out-of-doors vigor, its inchoate freshness, its egalitarian skepticism of leaders, and the recognition that democracy in Israel means more than minatory rule of narrow Knesset majorities. The democracy movement had difficulties attracting Palestinian Israelis. That was a problem. Those who thought the democracy movement could finesse the occupation clearly were wrong. Let us hope these problems are corrected because the democracy movement will have to be a big part of what happens next. Scheindlin’s book provides needed instruction on the way forward. When, recently, Senate Majority Leader Chuck Schumer said in a startling speech, that “at this critical juncture, I believe a new election is the only way to allow for a healthy and open decision- making process about the future of Israel, at a time when so many Israelis have lost their confidence in the vision and direction of their government,” he was placing his faith in his assumption that Israeli democracy can rescue Israel. At the least, the contrast between the authoritarian majoritarianism of the current Israeli government and the true forces of democracy has never been clearer.

The great historian Nathan I. Huggins, in The African American Ordeal in Slavery, concluded his book by quoting the final, haunting line of F. Scott Fitzgerald’s The Great Gatsby. It applies to all peoples struggling against a past from they are both drawing upon and struggling to escape. “And so we beat on, boats against the current, borne back ceaselessly into the past.” Somewhere upstream, let us hope, a more democratic Israel and a democratic Palestine await.

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Peter Eisenstadt is a member of the board of Partners for Progressive Israel and the author of Against the Hounds of Hell: A Biography of Howard Thurman (University of Virginia, 2021).