Analysis from Israel

In response to my column last month on the false choice between Israel’s Jewish and democratic characters, a reader asked a logical question: You yourself argued that Israel has no raison d’etre if it isn’t a Jewish state; being just another Western democracy isn’t enough. So why do you think “Jewish” and “democratic” deserve equal weight, instead of prioritizing Israel’s Jewish character?

Answering that requires defining “democracy,” because in recent years, two almost antithetical concepts have been sloppily – or perhaps maliciously – subsumed under this term. One of these concepts is frequently at odds with Israel’s Jewish character. But the other is as vital to the Jewish state’s continued existence as the body is to the soul.

Democracy’s original meaning, which today is sometimes called “thin” or “procedural” democracy, was a system of government in which governing requires the consent of the governed (though for practical reasons, such consent is usually granted via elected representatives). Consequently, its requirements are limited to those necessary to achieve this purpose, such as regular elections, checks and balances among different branches of government, and certain rights essential to enabling the democratic process to function, like freedom of expression or the right to due process.

Most democracies also grant rights that go beyond the bare essentials. But these additional rights acquire their validity only through the consent of the governed, granted via legislation or, more commonly, via democratically adopted constitutions. Procedural democracy doesn’t mandate the conferral of nonpolitical rights like, say, a “right to marry”; it mandates only those rights essential for democracy to function.

The newer version of democracy is sometimes called “thick” or “substantive” or “liberal” democracy. But despite that deceptive word “democracy,” this version is in many ways less a system of government than a religion.

Like any religion, it contains both positive and negative commandments that govern not only political, but also moral and social, life; the only difference is that these commandments are called “rights” instead. Thus, for instance, legalizing gay marriage is obligatory, because there’s a “right to marry,” but restricting abortion is forbidden, because a woman has a “right to control her own body.” These positions have nothing to do with the mechanisms of government and everything to do with dictating social and moral norms.

And like any religion, “substantive democracy” derives its commandments (aka “rights”) not from the decisions of the people’s elected representatives, but from a higher authority that trumps such decisions. In traditional religions, this higher authority is God, whose commandments are revealed in holy writ like the Bible or Koran. The origin of substantive democracy’s commandments is less clear: Sometimes, adherents simply assert that these are “fundamental human rights” known to and obligatory on everyone, however hotly contested they are. Other times, they cite the amorphous holy writ known as “international law,” which consists largely of pronouncements by unelected officials in UN agencies or organizations like the Red Cross, whose decisions were never approved by any elected government.

But whatever the source, disciples of substantive democracy clearly believe such a higher law exists. That’s why the High Court of Justice could rule in 2004, for instance, that people have a constitutional “right” to a “minimal dignified existence” guaranteed by welfare payments, with the court being authorized to decide whether existing welfare payments meet this standard. The fact that the only body in Israel actually authorized to enact constitutional legislation – the Knesset – had rejected proposed Basic Laws guaranteeing this and other “social rights” no fewer than 15 times was irrelevant.

The problem with treating democracy as a religion, however, is that no two religions are ever wholly compatible. One cannot, for instance, simultaneously be a practicing Jew and a practicing Muslim, because Jewish and Islamic law sometimes clash. So, too, do the commandments of Judaism and substantive democracy, and when that happens, many Jews will naturally prefer their own religion to the rival one. So if you believe that democracy can only mean “substantive democracy” – i.e., a rival religion – then prioritizing Israel’s Jewish character over its democratic one would make sense.

But procedural democracy isn’t a competing religion; it’s a system of government. And this particular system of government is essential to the Jewish state’s survival, for one simple reason: Any Jewish state, whatever else it is or isn’t, must be one where large numbers of Jews with often contradictory opinions and values – religious and secular, right-wing and left-wing, Sephardim and Ashkenazim, socialists and capitalists – can somehow live together. And no system of government is better at enabling people with wildly different opinions to coexist than democracy.

First, this is because democracy offers everyone the hope of ultimate victory – the possibility of persuading others to enact your ideas into law. In reality, achieving anything usually requires compromising. But the very existence of this hope is enough to keep most people working within the system instead of leaving in despair or turning to violence to impose their views.

Second, democracy excels at finding the kinds of messy compromises which, despite satisfying nobody, give each side enough that neither finds it intolerable. The current state of gay rights is a classic example. Liberal democrats consider gay marriage a fundamental right that the state must grant. Orthodox Jews consider homosexuality a serious religious offense that the state mustn’t endorse. The compromise is that Israel doesn’t permit gay marriage, but effectively grants gay couples the same rights as married couples. And since both sides get something (the de facto benefits of marriage for gays, no official sanctioning of religiously prohibited behavior for Orthodox Jews), both can live with it, even though neither is happy.

This brings us back to the body-and-soul analogy I began with. Judaism is Israel’s soul. As I argued last month, if Israel ever ceased to be a Jewish state, it would soon cease to exist at all. But democracy is Israel’s body – the framework that enables millions of contentious Jews to live together despite their disagreements, and without which the state would soon implode.

Like any living creature, the Jewish state needs both soul and body to survive. On its own, neither is enough.

Originally published in The Jerusalem Post on February 4, 2015

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ISIS Borrows a Tactic from Hamas

The U.S. Army recently announced that it has horrifying video footage of Islamic State fighters herding Iraqi civilians into buildings in Mosul. The plan was not to use them as human shields–that is, to announce their presence in the hope of deterring American airstrikes. Rather, ISIS was deliberately trying to ensure that American troops killed them, by “smuggling civilians into buildings, so we won’t see them and trying to bait the coalition to attack,” an army spokesman said at a briefing for Pentagon reporters. The motive, he explained, was hope that massive civilian casualties would produce such an outcry that the U.S. would halt airstrikes altogether.

There’s an important point to this story which the spokesman neglected to mention: This tactic is borrowed directly from Hamas. And it was borrowed because the world’s response to successive Hamas-Israel wars convinced ISIS that creating massive civilian casualties among residents of its own territory is an effective strategy. Admittedly, Hamas hasn’t yet been caught on video actually herding civilians into buildings before launching attacks from them. But there’s plenty of evidence that Hamas prevented civilians from leaving areas whence it was launching rockets or other attacks at Israel, thereby deliberately exposing them to retaliatory strikes.

During the 2014 Gaza war, for instance, the Israel Defense Forces warned civilians to evacuate the town of Beit Lahiya before launching air strikes at Hamas positions. But according to Palestinian human rights activist Bassem Eid, who based himself on interviews with Palestinians in Gaza, Hamas gunmen showed up and warned that anyone who left the town would be treated as a collaborator. Since Hamas executes collaborators, that was equivalent to saying that anyone who tried to leave would be killed on the spot. Thus, faced with the alternative of certain death at Hamas’s hands, most Beit Lahiya residents understandably opted to stay and take their chances with the IDF.

There’s also plenty of evidence that Hamas deliberately launched attacks from buildings where it knew civilians were present. Just last month, for instance, I wrote about a case during the 2009 Gaza war in which Hamas directed sniper fire at Israeli troops from the third floor of a well-known doctor’s home, thereby forcing the soldiers to choose between becoming sitting ducks or shooting back and risking civilian casualties. Unbeknownst to the soldiers, Hamas was also storing explosives in the house (using civilian buildings as arms caches or wiring them with explosives is standard practice for Hamas). Consequently, when the soldiers fired at the Hamas position, an unexpectedly large explosion ensued, killing three of the doctor’s daughters and one of his nieces.

In short, Hamas repeatedly used tactics aimed at maximizing the number of civilian casualties on its own side. Yet instead of blaming Hamas for this, the world largely blamed Israel. Mass demonstrations were held throughout the West condemning Israel; there were no mass demonstrations condemning Hamas. Journalists and “human rights” organizations issued endless reports blaming Israel for the civilian casualties while ignoring or downplaying Hamas’s role in them. Western leaders repeatedly demanded that Israel show “restraint” and accused it of using disproportionate force. Israel, not Hamas, became the subject of a complaint to the International Criminal Court.

Hamas thereby succeeded in putting Israel in a lose-lose situation. Either it could let Hamas launch thousands of rockets at Israeli civilians with impunity, or it could strike back at the price of global opprobrium.

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