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Chapter Five: From Cultural Duality to Normative Duality
The increasing dominance of the law and of the legal system in Israeli society[50] (and in other democratic societies as well, although on a smaller scale)[51] has been explained in various ways. The literature offers cultural-liberal explanations (the growing strength of liberal sentiment in Israeli culture, including the expansion of individual rights and the protection of individuals vis-á-vis the government, requires greater intervention by the Supreme Court as the protector of these values); arguments focusing on the institutional character of the courts and on the political context in which they function (courts fill the vacuum created by the weakness of the Israeli political system and the difficulties in functioning that beset the legislative and executive branches); neo-realistic cultural approaches (the law and its systems are perceived as having objective and professional powers of persuasion), and so forth.[52] Besides these explanations, which I do not discuss here,[53] I argue that the increasing recourse of Israeli society to judicial decisions on issues involving inter-cultural friction can be ascribed, inter alia, to the failure of the existing strategies for coping with cultural duality.[54] Due to the collapse of these three strategies, Israelis are now suffering from an identity malaise that leads them to translate intercultural discourse into a discourse between legal systems: state law and halakhic law.[55]
The identity malaise is evident on several levels, and is primarily an intrapersonal problem, one an individual struggles with within himself. In this context, unresolved identity questions do not have social implications linked to the subject being discussed here.[56] But this identity malaise is also an interpersonal problem, and as such, entails social implications with a direct bearing on the status of the law in society. It poses problems for each of the three groups seeking to define their inner identity but now unable to cope with the problem due to the collapse of the traditional strategy that had guided them thus far. The intra-group ideological failure projects further, to inter-group relationships. How? Were each group to succeed in easing its inner identity tension by integrating both cultures, a shared language of values would emerge between the secular, religious, and ultra-Orthodox populations, enhancing the chances of settling group differences through persuasion or negotiation. A shared language does not mean agreement on the content of identity, but simply acknowledgment of the legitimacy and validity of a dual cultural presence in the identity of every group. This acknowledgment could be an excellent foundation for fruitful inter-group dialogue that would not need to resort to judicial decisions at every step.[57] The strategies of compartmentalization, alienation, and abdication, which do not present genuine options for a full life within normative duality, have restricted the shared public space required for inter-group dialogue, leaving us bereft of ideological goods with which to cope with the “other.”[58] This reinforces the urge to attain cultural victory over the “other” through judicial rulings. Furthermore, let us assume that each group develops a clear identity doctrine vis-á-vis cultural duality, and that this doctrine can answer the needs of group members yearning for an integrated identity. When formulating their attitudes to questions evoked by cultural duality, group members will then probably follow the thinkers who developed the group identity doctrine, the people charged with disseminating it, marketing it, and educating in its light, and those who are elected on the basis of its platform. These individuals would eventually coalesce into the ideological leadership of each group, and negotiations between the groups would then be conducted between these ideological leaders. Unfortunately, the inner ideological failure within each group has lowered our expectations of organizations and individuals involved in thinking, education, or the dissemination of ideas. Instead, we seek the help of legal institutions. Overstating the case, one could argue that we choose the leaders of the competing legal systems as the leaders of each culture.[59] We mark the borders of the competing cultural territories by defining the limits of the competing legal systems.
What is the motivation for this process of “lawlization” and “halakhization” in Israeli society? Turning to the law appears to enable adversaries in all camps to achieve a complex goal: twisting the arm of the cultural “other” while exempting themselves of all responsibility for the intolerant and aggressive implication of this act; waging a kulturkampf while preserving their self-image untainted.
Arm twisting in what way? Courts, secular and religious, serve as ammunition because the judicial product, by definition, sharpens the decision. The judicial ruling acts as a guillotine, encouraging a discourse of victors and vanquished.[60] The judicial procedure fits an environment of strife because it unfolds within a drama of competition and of decision-making, and because it sometimes results in the demonization of the “other.”[61]
Exemption from responsibility in what way? Turning to the courts does not tarnish the self-perception of litigants, who do not consider themselves as having adopted an aggressive attitude. In their view, the judicial procedure is bound by an inner, “pristine” system of rules, autonomous and universal, projecting “professional immaculacy,” objectivity, neutrality free of political bias, sterility absent of external considerations, expertise and authority.[62] The same is true of those turning to Halakhah, with an a fortiori addition: if law, a human creation, is viewed as acting within an autonomous space unaffected by the power struggles of a particular society, all the more so Halakhah, which is perceived by the religiously observant public to be the “true Torah,” originating in a unique divine revelation whose validity and persuasive powers are unquestionable. Furthermore, as the public discourse tends to present judges as being loyal only to the law and never suspect of promoting their personal values, so does intra-religious discourse present halakhists as implementing da’at Torah (Torah wisdom). Da’at Torah is purported to be external to halakhic judges and uninfluenced by their personal values; hence all are commanded to comply with their rulings for reasons of unconditional “faith in the sages.”
Each group, then, is characterized by an unresolved inner identity tension that has deleterious effects on the possibility of dialogue, pushing groups toward confrontation and an ambiance of kulturkampf. The increasing recourse to law and Halakhah was intended to gain validity for the inner identity of each group. The law and Halakhah provide a clean field for this war, which enhances their social status.
Translating cultural duality into normative duality could create severe cumulative effects. A judicial decision is liable to lead to the banalization of the dispute,[63] and to blithe disregard of the complexity of cultural duality.[64] It intensifies and sharpens the alienation prevailing between various segments of Israeli society; it escalates differences and entrenches the parties behind defense lines formulated in binary terms—rights and duties, commandments and transgressions, forbidden and allowed. It hinders the development of moderate, complex, experiential, or ongoing educational possibilities. It fences in the camps and undermines the possibility of broadening the common denominator uniting different communities. It compels an essentially monological rights discourse - which effaces the “other” and relates to him instrumentally - on an essentially dialogical identity discourse.[65] It paralyzes the marketplace of ideas, dilutes the social importance of political procedure and, ultimately, could considerably erode the trust that large segments of the public place in the judiciary.[66]
Notes
50. Amnon Rubinstein preceded others in pointing to the “lawlization of Israel” in a series of three articles with this title, which he published in Haaretz in June 1987. Rubinstein wrote: “It must be stated unhesitatingly that Israel is going through an amazing process of profound “lawlization,” unequalled and unparalleled in any other country.” See Amnon Rubinstein, “The Lawlization of Israel,” Haaretz, 6 June 1987, B1.
51. Indeed, legal imperialism is not exclusive to Israel or to countries characterized by cultural duality or identity problems. Hence, my remarks on this question are not meant as the sole explanation of a local phenomenon. Thus, for instance, some see the law as a meta-narrative serving to anchor contemporary post-modern culture. See Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicholson, 1990). On the central role of the law in current American culture and on different perspectives on this topic, see Paul F. Campos, Jurismania: American Culture and the Madness of Law (New York: Oxford University Press, 1998); Lawrence Meir Friedman, Total Justice (New York: Russell Sage, 1985); Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley, 1991). The law also plays a special role as a by-product of the globalization process, affecting economic and social aspects. Nevertheless, the current legal and halakhic imperialism in Israel is still uniquely prominent by comparison with other places.
52. For the various approaches and for references, see Gad Barzilai, “Judicial Hegemony, Sectarian Polarization, and Social Change” [Hebrew], Politika 2 (1998): 31, 32-35.
53. Note, however, that all the explanations so far refer only to the dominance of state law. They do not contribute to an understanding of the parallel phenomenon concerning the dominance of Halakhah. In contrast, in this discussion I seek an overall explanation for the reliance on both these legal systems.
54. I do not claim that this is the sole explanation. Findings reveal increasing recourse to litigation in Israel on issues not directly related to the inter-cultural strife, as is also true of societies that are not characterized by identity conflicts. See the text above and note 51.
55. For a perception of the law as a separate cultural system and for a clarification of the mutual influences between external culture on the one hand, and the law and legal culture on the other, see Menachem Mautner, “The Law as Culture: Toward a New Research Paradigm” [Hebrew], in Multiculturalism in a Democratic and Jewish State, 545. On the culture’s influence on the law and its development, see Ariel Rosen-Zvi, “Legal Culture: On Judicial Review, the Enforcement of Law and Inculcation of Values” [Hebrew], Tel Aviv University Law Review 17 (1993): 689.
56. Thus, for instance, American Jews are also troubled by similar identity problems and adopt the same coping strategies: American modern Orthodox compartmentalize themselves, the ultra-Orthodox are often alienated, and the bulk of Jews who are non-affiliated, abdicate. These strategies survive better in the United States so far because they are not implemented in an environment characterized by ongoing crisis.
57. The literature acknowledges the link between social cohesiveness - based on a cultural, economic, or other common denominator - and extra-legal social regulation. As social cohesiveness breaks down, the power of social authority and of extra-legal normative systems is weakened, intensifying the need for authoritative legal rulings. See, for instance, Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991); Jonathan R. Macey “Public and Private Ordering and the Production of Legitimate and Illegitimate Legal Rules,” Cornell Law Review 82 (1997): 1123.
58. Thus, for instance, a common denominator between ultra-Orthodox who choose exclusion from Western culture and secular Jews who have actually relinquished the option of significant links with Jewish culture and are oblivious to its values, is hard to find. If each of these two groups were to develop, separately, ideological models that leave room for both cultures within their own (different) worldviews, they could probably discuss their disputes in more leisurely, empathetic, and trusting terms, striving for an arrangement. Furthermore, if each group could preserve its traditional strategy of action vis-á-vis cultural duality, across-the-board normative decisions to regulate the relationships between them would probably not be required. Compartmentalized religious-Zionists and alienated ultra-Orthodox would not make demands on the secularists, since these strategies would enable them to accept their existence without unnecessary strife. In other words, the combined effect of the collapse of traditional strategies and the lack of inclusive ideological models is a crucial element in the rush to the courts.
59. See Moshe Gorali, “The Duel of Our Masters and Teachers” [Hebrew], Mishpat Nosaf 1 (2001): 16, which describes the controversy between former Chief Rabbi Ovadia Yosef, who serves as the spiritual leader of the Shas Party, and Chief Justice Aharon Barak.
60. Justice Cheshin states: “The law is like the guillotine: a sharp cut, a categorical ruling, a clear-cut decision, guilty and innocent, good and bad, black and white, a winning and a losing side.” HCJ 5364/94 Wellner v. The Alignment Labor Party, PD 49(1) 758, 825.
61. “Two competing and ‘equal’ parties enter the court, and then leave as right and wrong, culprits and blameless, winners and losers, reasonable and unreasonable. Supreme Court decisions tell the story of a dramatic truth, emerging in the course of the competition and the conflict between the parties, who bring different and conflicting versions. The Court provides the public with a show, a television drama, the tension of waiting for the judges’ utterances, the decisive, clear-cut result, the truth refined through conflict rather than through compromise and negotiation.” See Ronen Shamir, “The Politics of Reasonableness: Reasonableness and Judicial Power at Israel’s Supreme Court” [Hebrew], Theory and Criticism 5 (1994): 7, 19.
62. See, for instance, Baruch Kimmerling, “Legislation and Jurisprudence in a Settler-Immigrant Society” [Hebrew], Bar-Ilan Law Studies 16 (2001): 17, 18; Shamir, “The Politics of Reasonableness,” 19.
63. Rosen-Zvi claims in “Legal Culture,” 702, that this implies placing social and cultural questions in “the ‘Procrustean bed’ of solely partial and narrow legal aspects.”
64. In the introduction to his ruling concerning the Bar-Ilan road, Chief Justice Barak appears to be aware of this: “In Israel’s public discourse, Bar-Ilan is no longer a road and has become a social concept. It signals a deep political controversy between the ultra-Orthodox and secularists. It is not merely a conflict about freedom of movement on Friday and Saturday on Bar-Ilan Street. Fundamentally, it is a harsh conflict about the relationship between religion and state in Israel, a fierce dispute about the character of Israel as a Jewish or democratic state…. Our concern is not the social dispute; our considerations are not political. Our interest is the legal controversy; our considerations are normative. We do not deal with the relationship between the ultra-Orthodox and secularists in Israel; the issue for us is not the relationship between religion and state in Israel…. Our interest is simply Bar-Ilan Street; our interest is the mandate of the Central Signposting Authority and the latitude of its discretion. Our concern is the relationship between freedom of movement on one hand, and harming religious sensibilities and a religious way of life on the other.” HCJ 5016/96, Lior Horev v. The Minister of Transport, PD 51(4) 1, 15. This is an instance of the Supreme Court’s awareness of the limitations of legal discourse: the Court is required, against its better interests, to cope with cultural duality. It is required, against this matter’s better interests, to do so in a symbolic and highly publicized case, by examining how the Central Signposting Authority exercises its discretion.
65. In Society and Law in Israel, Sagi develops an important conceptual distinction. The rights discourse resorts to the legal system and to arguments drawn from legal language. This is a discourse between plaintiffs and defendants, in which the meeting with the other touches on a conflict of interests, and the relationships between the parties are hierarchical and asymmetrical. By contrast, an identity discourse evolves between individuals who do not ascribe characteristics and do not apply categories to the other, allowing the self and the other to meet in their “concrete fullness.” In this discourse, people talk, listen, confess, and tell. They are interested in the other and in developing a mutual dialogue, based on an understanding of their unique identity. Sagi therefore states (27): “The social and interpersonal dynamic that develops in a public discourse confined to a context of rights is strikingly different from those evolving in an identity context. When a discourse of rights is dominant, the parties have clearly lost their sense of solidarity and of personal attachment. A rights discourse points to self-seclusion and possibly alienation. The law predicated on this discourse is the product of a balance of power. It cannot provide a basis for social solidarity nor can it replace the intricate web of personal relationships, and society comes perilously close to losing its connecting bonds. In these circumstances, the rights discourse both confirms and accelerates the centrifugal processes of closure and social collapse.”
66. In the past, Israeli society had evinced considerable trust in its Supreme Court. A majority of the Jewish public held that judicial rulings were fair, egalitarian, wise, and ethical, and the Court was perceived as an all-inclusive and non-particularistic institution. See Gad Barzilai, Ephraim Yaar-Yuchtman and Zeev Segal, The Israeli Supreme Court and the Israeli Public [Hebrew] (Tel Aviv: Papyrus, 1994). Over the last few years, the public, the media, and the professional community have intensified their attacks against the Court. If support for the judiciary has indeed weakened, this could imply the fulfillment of Dan Avnon’s prediction: “When the Court rules on the content of the expression ‘the values of the State of Israel as a Jewish democratic state,’ individuals and groups in Israeli society will argue that its interpretation represents only a narrow segment within it…. We can plausibly assume that the Court will provide the impetus for social change through which various groups in Israeli society will try to promote their views and their values, be it through petitions or through an attempt to appoint judges. Groups feeling that their access to the Court and ways to influence it are blocked will become alienated from the judiciary and turn their backs on an institution implementing a fundamental principle of the democratic regime, the principle of equality before the law.” Dan Avnon, “The Non-Democratic Aspect of Basic Laws on the Issue of Human Rights” [Hebrew], Politika 2 (1998): 53, 60.
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