Yehudah Mirsky in Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character
[This essay is part of Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character. The forum’s home page can be found here.]
What Is A Nation State For?
An odd and simple-minded question, perhaps, given the ubiquity and centrality of nation states in our world, but still worth asking, especially when first principles are on the table.
“A state,” Max Weber lucidly said, “is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” It is the prerequisite for survival beyond the clan, within one’s society and beyond the state’s territory. More than just the guarantor of survival, the state is, in its illiberal forms, the ensemble of legal instruments for political and socio-cultural practices through which the majority, or at least the ruling elites, impose their will on everyone else. It is, in its liberal forms, the ensemble of legal instruments and genuinely democratic frameworks for political and socio-cultural practices through which citizens, qua individuals, work out their respective claims for power and freedom. This freedom in turn can take many forms, from, for instance, freedom for one’s own ethnic group, to freedom from one’s own ethnic group.
Broadly autocratic, oligarchic and repressive governance has been with us for a very long time as has the state’s monopoly of legitimate coercion within a given territory. Liberalism, on the other hand, and the nation state both arose in the West at the same point in history, and in some respects, arose together. Both responded to deep changes in the nature of identity — of meaningful belonging.
The late Shmuel Noah Eisenstadt wrote that identity takes three forms — primordial (we could say ethnic, or kinship), civic (or social), and transcendent (the realm of ultimate values). Eisentsadt, in a sense, restates Aristotle’s reconstruction of the concentric emergence of the polis from the family to village to city-state, but he replaces Aristotle’s serene teleology with the structural and existential anxieties of modern sociology. In a stable group or individual, the three dimensions of belonging more or less work together, or at least not too much at cross-purposes with one another. When the structures holding those identities together come apart, our responses alternate between liberation and terror.
So it was when, in Western Europe, the Catholic Church gave way in the Protestant Reformation, followed, after much bloodshed, by the Westphalian order of semi-nation states that after 1648 came to provide the framework for meaningful and hopefully secure collective belonging. In this prying loose from the c/Catholic framework, salvation was now something to be attained by the believer’s own relationship with God rather than via participation in the Church qua Body of Christ. This was accompanied by the corresponding end of the identification of the body of the monarch with the body politic. These developments had deep implications for the individual, as person, and as a unit of meaning in his (for centuries, his) own right. Meaningful collective belonging now sought an anchor sunk deep in the territory of the state and the linguistic and cultural inheritances of its inhabitants.
There are, needless to say, many stories to be told here; many more than can be encompassed in a broad-brush essay such as this. But the one that concerns us is a story of the collapse of transcendence and immanence into one another — with the ultimate meanings of the religious order now being instantiated in the state and the subjectivity of the individual coming to be seen as one with the subjectivity of the nation. These processes moved in tandem with the other crucial dimensions of the ending of pre-modern corporate life, namely the rethinking of social and political life in terms of equality and freedom.
freedom can take many forms, from freedom for one’s own ethnic group, to freedom from one’s own ethnic group
What has any of this to do with the Jews? Quite a bit.
Relieving or at least coming to terms with the civil inequality of the Jews was central to the new meaning of statehood in modernity — quite literally a stumbling block to the Jews, and, often enough, a foolishness to the Gentiles. In the new, modernizing nation-states, the limited but genuine forms of Jewish collective life, as lived in the pre-modern self-governing Jewish community known as the Kehilla, no longer made sense. Beyond the technical sticking points of Jews’ collective perdurance as pockets within the nation state and the persistence of the Jews’ distinctive integration of primordial identity and transcendence in a universal key, was an unresolved structural conundrum in the emergence of that new statehood itself.
The perceived failure of Western European nation states to accommodate the Jews gave rise to the political Zionism of Theodor Herzl and others. To the East, even those (to put it mildly) compromised efforts at liberalization were too much for the Russian Empire to attempt; so it was that the precarious sense of insecurity and regular misery among so the much of the masses of the Pale of Settlement, and the emerging nationalism of those around them, gave Zionism its most pressing moral (and much demographic) heft. It was, moreover, the Eastern European struggle to rethink and reconstitute the tradition that gave rise to a different Zionism, as a project of cultural renaissance and, for others, of cultural and political revolution, not only against exile but also against Jewish history.
To be sure, Zionism was not the only program on offer to ameliorate Jewish disability. It was one set of answers to the multiple crises of politics, culture, and religion that wracked European Jewry through the 19th century. Others included liberalism, socialist revolution, Jewish diaspora nationalism, assimilationism, and, in its own way, Orthodoxy, in which a more or less organic tradition was reconfigured as one ideology competing with others within the distinctively modern dispensation by which society and history are not givens, but artifacts, to be unmade and made anew. These ideological possibilities mixed and matched within Zionism itself, yielding varieties of Zionism — secular and religious, left and right, universalist and nationalist — in staggering array, too often lost in the fog and willed forgetfulness on all sides of contemporary polemics. The Holocaust raised the stakes of all these arguments to a pitch of unnerving intensity.
At the State of Israel’s creation in 1948, it was, above all, the Labor Zionism of Ben-Gurion’s Mapai Party that emerged ascendant. Labor Zionism’s sheer skill was in institution-building; its ability to square the circles of nationalism and class, as well as of nationalism and universalism, within a program of Jewish socialist revolution. The creation by its leaders and thinkers, steeped in the classical Jewish tradition against which they rose in full-fledged, but deeply dialectical, rebellion, of a new interpretation of Jewish history and of Judaism itself, as radical as it was compelling, became enshrined in the Declaration of Independence. These are but a few of the reasons why Labor Zionism triumphed.
The other contributors to this symposium have marvelously explicated the ways in which the Declaration of Independence deftly synthesized questions of national identity and civic equality in the new state. I would just add one crucial element. God, to whom all pre-modern and even many modern Jews ascribed not only the universe but their own souls and survival, appears nowhere in the official language of the Declaration save for a delightfully oblique reference to The Rock of Israel (a venerable liturgical phrase taken from 2 Samuel 23:3). This near-total omission of the Creator was not lost on the religious signatories, one of whom, Rabbi Judah Leib Maimon, a significant scholar as well as head of the Religious Zionist Mizrachi Party (flown in by Ben-Gurion for the signing from Jerusalem, then under siege), appended to his signature a squiggly three Hebrew characters, b’h, a traditional acronym for be’ezrat Ha-shem, “by the grace of God.”
Much of Israel’s recent history is the gradual movement of Rabbi Maimon’s squiggle — and of other historical squiggles — from the margins of the founding Document, and the ethos it meant to enshrine, to the center.
In other words, the nation-state laws, the controversies they engender, and the processes they visibly enact, simply cannot be understood outside the context of the steady decline of Mapai and its ethos from the mid-1970s to today. Ever since the still-traumatic Yom Kippur War of 1973, the hegemony of Mapai and the overwhelmingly secular Ashkenazi leadership elites of the state has been in steady decline — and with it the Zionist civil religion it created. Secular Ashkenazi Israel has, to be sure, not gone away, but it has steadily been shunted aside and made to yield in one sector after another to groups who either were not present at the creation of the state or came to prominence only years after.
Among these were the Revisionist Zionists, whose forcible exclusion not just from political power and patronage but from national memory and ethos engendered a bitter politics of resentment; Sephardi Jews, who in their countries of origin experienced modernity differently, less conflictually, and for whom it was precisely their very emigration to the new Jewish state of Israel that made for their traumatic encounter with modernity, wearing a secular Jewish face; Jews of the former Soviet Union, who, on their mass arrival, turned out not to be multitudes of Sharanskys and Nudels, dissident refusenik heroes, yearning to breathe free, but normal human beings seeking to improve their lives after having lived in forced estrangement from Jewish life for the better part of a century. And new generations of religious Zionists, whose youth rebellion was directed as much against moderates like Rabbi Maimon, as against the elites of Mapai, came forward to press their own idealism against what they saw as a tired elite, supplanted with a new vision of Zionism as the paradoxical engine of the Messianic redemption that would, by extending Israeli sovereignty to the Biblical heartlands of Judea and Samaria, redeem the Jewish people and save the human race. For their part, Israel’s ultra-Orthodox Jews, rather than accepting Labor Zionism’s preferred role for them as inhabitants of a Judaic Colonial Williamsburg, have grown in numbers and in social and political clout, proving once again that people who answer to a higher religious authority nonetheless have their own ideas.
Taken together with the decline and widespread discrediting of socialism, Israel’s Labor Zionism has been driven to the ropes for decades.
The basic laws of 1992, as well as the constitutional revolution of Justice Aharon Barak, which form the backdrop to the present discussion, must be seen in this light — as has been marvelously demonstrated in Menachem Mautner’s Law and the Culture of Israel. The 1992 basic laws introduced “Jewishness” as a substantive factor in law-making. The constitutional revolution of Justice Barak not only established American-style constitutionalism and judicial review in the absence of a constitution, but also went even farther than the most activist of American judges in its wholesale erasure of political question doctrine, the idea, fundamental to American jurisprudence, that courts cannot rule on issues constitutionally delegated to the executive or those involving policy judgments.
In many ways, Barak came to see the judiciary as the last ditch of Israeli democracy — and yet that very defense, in the great backlash that it enabled, may have helped weaken that democratic edifice. (In a sense, Barak and his chief sparring partner in public debate, Ruth Gavison, both of whom spent significant time at Yale Law School, each internalized one of the poles of the debates over judicial activism and restraint that have wracked, and in some ways disfigured, American jurisprudence for decades.) One case that emerged as a flash-point was the so-called Katzir decision of 2000, ruling that state resources could not be used to establish Jewish-only communities. This, taken with the tenor of the Court generally, unwittingly fed into a perception in more right-wing circles that the judiciary did not recognize the legitimacy of the Zionist enterprise as a whole.
Overwrought though much of the criticism of the court has been, it is crucial to note that in some respects the new religious critics of the Mapai hegemons were not wrong. Israel’s secular elites had quite deliberately estranged themselves from, and weaned their children off, their own Jewish cultural resources, succumbing to the fate of revolutionaries who give their children an education as different as they can get from their own. Ben-Gurion and his peers had no trouble arguing to religious Zionists that the Labor Zionist ethos was not only the better defense of Jewish interests but the better interpretation of its values. The successors of Ben-Gurion’s generation could not make that argument if for no other reason than that they no longer share with their religious interlocutors the same language or the same basic understandings of who they are and what they are doing in their own state.
Israel’s secular elites quite deliberately estranged themselves from, and weaned their children off, their own Jewish cultural resources
Not that the new would-be elites have all that many answers. As some of the other contributors here have pointed out, these laws are as much a sign of desperation as they are of anything. (They have been the occasion for extraordinary political opportunism on the part of Prime Minister Netanyahu and others, though that opportunism was made possible by genuine and unanswered questions.) They represent a flailing away both at the increasingly complex picture of Israeli democracy, and at a growing recognition that Israel’s conflict with the Palestinians is at bottom not about how to divide the land between two national groups but whether the Jews rightly deserve to have a state at all. That latter impasse has been made exponentially more complex by Israel’s settlements in Judea and Samaria but would have been there even without them.
But desperate measures can lead to disastrous results. To be sure, as Gideon Sapir wrote, building on the terrific work of Alex Yakobson and Amnon Rubinstein, liberal democracies certainly can have strong national identities. And it must be said that a number of the nation-state laws’ sponsors and supporters, far from being illiberal revanchists, are classic liberals, genuinely fearful of relentless attempts from multiple quarters to deny Israel’s very legitimacy as a Jewish state. And it must also be said that Israel is a polity created not only to provide the physical security of sovereignty but to reconstitute affective ties of community. Staking the legitimate bounds of the latter will be a perennial conversation. Nonetheless, there is no denying that these current proposed laws, in both design and intent, aim to put in place Israel’s Jewishness as such (as though such a thing were easily defined in this day and age), as the defining interpretive lens through which all other laws, including those governing Israel’s Arab minority, are to be scrutinized — even perhaps per the broad terms of judicial scrutiny ironically fashioned by a true champion of civil liberty, Justice Barak. Serving as interpretive lenses is after all what constitutional provisions do.
There is, in addition, a curious slippage at work in the very wording of these laws. The literal translation of medinat Yisrael ki-medinat ha-leom shel ha-‘am ha-yehudi, translates as “Israel is the nation state of the Jewish people.” In one and the same breath, the warm, historical resonances of “people” are yoked to the hard edges of the modern “nation,” in which peoplehood is tied to the coercive power of the state. This illustrates, if nothing else, the uneasy and still unresolved relationship between the new Israeli nationalist dispensation and the very historical identity it is seeking to preserve and protect.
Which brings us full circle, to Weber. States are meant to provide security — and the ideational terms of meaningful belonging in and through which those states understand themselves are inextricably tied to security. It is all one package, and there are no easy ways out.
What’s more, this Israeli story belongs to some larger trends, both regional and global.
Regionally — we are, finally, witnessing the collapse of the nation state order put together after World War I as the Allies tried to sort out the contradictory promises scattered in all directions under the press of wartime. Middle Eastern states are imploding and exploding all around, and what is coming to replace them is, interestingly, not nationalism. Rather, we are seeing people in Iraq, Syria, Libya and elsewhere turning increasingly to clan-based organization for security, or to a new dispensation of illiberal universalism, namely radical Islam, or, in Egypt, to authoritarians who promise to rein the Islamists in.
Liberalism faces competition from many quarters and not just ethnic nationalism. Universalism comes in many forms, not all of them benign. This is so not only in the Middle East. To take a malign example, much of Western anti-Semitism rests on a kind of exclusionary universalism — as does radical Islam — in which rights are denied to those who do not accept our version of what is good for them and humanity. These exclusions, whether they derive from Athens, St. Paul, or Sayyid Qutb have no room for Jews.
Globally, we are witnessing the liberal recession. If once there was a liberal order underwritten by American power, that order is increasingly called into question. As America is unable to impose its will or make full use of its soft power, as demonstrated inter alia by its inability to do much regarding ISIS (out of a mix of healthy caution, diplomatic incompetence, and a sense of impotence), the suasion — soft and hard — of a liberal order diminishes accordingly.
The liberal order faces a triple threat in today’s world — Putin’s Russian imperial, authoritarian nationalism, China’s authoritarian capitalism, and radical Islamic politics. And the ongoing lesson of the unraveling of the European Union is that nationalism cannot be erased or wished away. Imagined communities, indeed, but every community is held together, as Maimonides understood, by the power of the imagination. Islamist politics is unlikely to win adherents in the West but, like the other two, deepens the Western crisis of faith in its own values.
every community is held together, as Maimonides understood, by the power of the imagination
The End of History was always a fantasy; history doesn’t end just because we can’t see where it — or we — are going. And in good Hegelian fashion, things generate their opposites. Or more precisely, the next stage comes to compensate for the liberal state’s deficiencies, its difficulty with giving expression to strong affective ties of kinship, its dependence on religious mind-frames and notions of transcendence that sooner or later will challenge it.
The hardening of Israel’s nationalism is, among other things, a harbinger of how the West will respond to the further dangers of Islamist politics, by digging in — a reaction that is paradoxically furthered by Western liberalism’s own feebleness in articulating and defending its own values. Western European governments who have continued to support the Palestinians and especially Hamas, no matter their depredations, have done liberalism no favors. In Europe, multiculturalism looks increasingly to have been a dodge to get off the hook of building a genuinely shared civic culture. Nobody is off the hook here. As always when it comes to Israel there is plenty of blame to go around, including in my own mini-camp of Religious Zionist liberals who have been unable to make political traction over the years.
At the same time, we have to accept the fact of American exceptionalism, the ways in which the American model of religious neutrality is in many ways non-transferrable abroad, and then decide what to do after that recognition has sunk in.
Is there a way forward?
In her recommendations to the Minister of Justice Ruth Gavison powerfully argues that liberal democracy is at times best preserved precisely by letting some large questions go unanswered but endlessly argued.
Perhaps the instruments and practices of liberal democracy — and the package of rights that complements it — are best seen as principles of procedure rather than substance. They aim to facilitate life in common with a minimum of coercion and violence. Yet that latter proviso is matter of both procedure and substance. Violent polities are not internally stable in the long haul (admittedly, at times a very long haul). And if being human means anything, it means there are things that other humans should do to one another only with the greatest reluctance and as a last resort.
There are of course, as many devils here, as there are details.
The advantage of thinking about these constitutional arrangements in procedural terms is that they place to the side the thick questions of substantive belief and identity, or at least bracket them as much as possible, and create some sort of standard of review. If there is a whiff of theology here, it is along the lines of John Courtney Murray’s characterization of the religion clauses of the First Amendment as the Articles of Peace
Those wishing for a more Hegelian state, or any state that perfectly embodies and realizes our ultimate communal ideals and our most far-reaching aspirations, are, sooner or later, calling for a bloodbath. Yet states cannot simply function as, in Emerson’s phrase, joint-insurance companies, because they will not thereby generate the common concern, solidarity, and mutual sacrifice required to sustain them. For that something more is needed, some sort of thick civic culture (and, if we seek to inspire self-sacrifice, civil religion). And the Israeli problem is that the old civil religion formulated by Mapai is gone and nothing new has yet arisen to take its place.
Writing recently about the postwar nation states of Africa, Samuel Moyn has said the following:
The nation-state has always been exclusionary and often been violent, offending the cosmopolitanism of the liberals and the desire of Marxists for solidarity beyond borders. The nation-state has also been a severe disappointment for postcolonialists, who believe that new nations succeeded mainly in creating new elites and perpetuating the suffering of their populations at large…But that is no cause to underestimate — just as many anticolonialists overstated — the possibilities of nationalism, with all its flaws, for progressive politics. While it may seem foolhardy to propose to rescue the nation-state from the enormous condescension of posterity, it is critical all the same to understand why so many of our ancestors chose it.
Why did they choose it? Because in order for statehood to survive, to be able to bring forth the bonds of solidarity and collective responsibility without which even the most solitary life is at the end unlivable, and to endure via anything more than mere brutality and fear, it must speak to some meaningful forms of belonging; managing the necessary ties and nearly inevitable contradictions of the primordial bonds, civic associations and shared pursuits, and ultimate values, which together shape the lived experience of our lives. Political, social, and even legal institutions are answers not only to instrumental needs but to existential questions. The deep and tangled intermingling of instrumentality and existence, of our own human finitude, will always be with us. What defines us as humans is our need to make some sense of that finitude for the sake of our very survival, and to take heed of the needs, claims, danger, and sufferings of other human beings.
The human person, the figure at the center of the very idea of human rights, is not a person in general but a concrete figure, embedded in time and place, and yet dis-embedded and capable of seeing beyond one’s own horizon; able to see in the people of other times and places a reflection of ourselves. The dynamic tension of the particular and the universal is woven into the very fabric of being human. Living and working that tension to the fullest is the burden, and blessing, of the Jews.
[Go to the next essay in the forum by Yoram Hazony, “Considerations on the Current Crisis in Israel’s Constitution”]
[Go to the previous essay in the forum by Nir Kedar, “On the Dangers of Enshrining National Character in the Law”]