Menachem Mautner
Menachem Mautner
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Its title sounds dry, and its style is certainly scholarly, but if you want to understand the roots of Israel’s “culture wars,” a good place to start would be Menachem Mautner’s “Law & the Culture of Israel” ‏(Oxford University Press, 267 pages, $60 / £35‏). A professor of comparative civil law and jurisprudence, and former dean, at Tel Aviv University’s faculty of law, Mautner, 61, examines the ongoing conflict between the religious and secular worldviews, which has expressed itself in competing visions of the state’s system of law. One aspired to a legal system based on Western democratic values, the other looked to Jewish law to be the guiding source. So long as the secular European Jews who founded the state were dominant, Israel appeared to be liberal, democratic -- and secular. A combination of demography and the ideological weakness of neo-liberal materialism turned the members of the secular elite into “liberal former hegemons,” as Mautner describes them. These LFH, in their struggle to maintain a hold on power, turned to the Supreme Court to uphold their values and beliefs. The court accepted the mission, and became increasingly activist beginning in the 1980s, even granting itself the right to strike down laws it deemed “unconstitutional.” Together with the relegation of the country’s Arab minority to second-class citizenship, Mautner sees the religious-secular divide as the greatest threat to Israel’s internal stability, and sees an inclusive national conversation on these issues as a necessity. Haaretz spoke with Menachem Mautner from his home in Tel Aviv.
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 Your criticism of the Supreme Court includes disapproval of its dominant role in the selection of new judges, who overwhelmingly come from the same liberal-secular mold as those appointing them. Yet, in the part of the book where you become prescriptive, you also seem to pin your hope on the values of those same “liberal former hegemons.” How do you explain this paradox?

On a personal level, I’m part of this group. I grew up in a secular, well-to-do family in Tel Aviv. I’m critical of the group because I think that from the beginning of the state, it was very much engaged in promoting its own interests, which were to a large extent materialistic, and was not ready to devote enough of its energy and resources to create a more unified and culturally homogeneous society. I have in mind the treatment of newcomers from the Islamic countries, the Mizrahim, who had been sent by the government to the distant, newly captured territories after the War of Independence. At the same time, I’m also sympathetic to the LFH, because I think its conduct in the early 50s was part of the very profound human urge to normalcy, to having the good life in the most sane and prosaic way. I’m also very much for Israel’s continuing to being a secular, democratic, pro-Western country. I don’t see any other group that can serve as a basis for continuation and further cultivation of these values.

Still, am I right in thinking that writing this book made you more sympathetic to the religious and right-wing population?

Yes. I think the religious-Zionist group is pivotal to the future of Israel, less because of its numbers than because of its institutions. It has yeshivot, ulpanot, schools, newspapers and journals. It’s less materialistic, and it’s a group that constantly asks serious questions about the identity of Israel, how it should look culturally: How do you make one people and nation out of a society composed of both secular and religious Jews, both Jews and Arabs? I’m also sympathetic because its people are ready to sacrifice for the general welfare and common good of the state.

You distinguish clearly between national religious and ultra-Orthodox. But hasn’t the line between them blurred in recent decades?

Religious Zionism is a very varied and fragmented group. It’s composed of three major sub-groups: Hardal [an abbreviation for “ultra-Orthodox nationalist”], who are fundamentalist, and take everything from Western technology, but don’t give positive value to the West’s spiritual and intellectual heritage. The second major group is the modern Orthodox, composed of intellectuals, academics and kibbutzniks, who are trying to develop a theology that combines both Jewish heritage and the best of Western heritage. These two groups, which are very much at the poles of religious Zionism, have both theology and institutions to develop and cultivate their theology.

In between them is the largest sub-group: “the religious bourgeoisie.” Here we have practitioners: lawyers, accountants, social workers, teachers, doctors. They lack a theology or any institutions to cultivate a theology for them. They go to work, in the evening they go to movies, theater, opera. They read Western literature, and most important, they send their children to study at the universities. In the book, I talk about two other developments in the religious Zionist group: First, the rise of religious feminism, which has introduced into the life of the group Western values of equality and democracy. Second is the very open discussion of homosexuality, in which highly prominent rabbis take part.

You’re very critical of the selection process for Supreme Court judges, which you say is unfair and unrepresentative. Did you support the recent, unsuccessful attempt by the justice minister to reform the system?

By and large yes. There’s no other country where the justices have controlled the process of selection for so many years. I think that in the long run, the justices’ involvement in this highly political appointment process undermines the stature of the Supreme Court. In a footnote, I discuss the nomination processes in nine other common-law countries. And I show that in none of these countries do the justices have such vast influence over the process.

Is it possible that, despite the unfairness of the system, we get better judges because of it?

Not only is the system unfair, it also breeds an unrepresentative court. There’s a disparity between the cultural homogeneity of the court, on the one hand, and the great plurality of Israeli society, on the other. I think that for the long run, and I say this very cautiously, maybe we should consider establishing a constitutional court, composed of representatives of society’s major cultural groups.

Speaking of a constitution -- how significant is it that we don’t have one?

It’s a very big problem. A constitution consolidates the population of a country around one major document that supposedly expresses the noble, fundamental, lasting values of the society. It can also serve as an important educational tool. I think that it was a severe historical mistake that in 1950 the Knesset adopted a resolution that it would not continue with the constitution-making process, as it was supposed to, according to the Declaration of Independence.

You make the point that the 1992 Basic Law on Human Dignity and Liberty, though it was important for enshrining individual rights, created problems for the Arab population by defining Israel as a “Jewish, democratic” state.

Once you unilaterally define the State of Israel as “Jewish and democratic,” the Arab citizens will come up with their own definition, and we will end up having struggles over the definition. Not that I’m opposed to Israel’s being a Jewish, democratic state; of course I’m for it. There is such a thing as a Jewish people, and they have right to self-determination and to their own country, and the State of Israel should be a Jewish state. But I don’t see any benefits in playing the “definitions game.” Second, the current definition excludes the Arab citizens from the definition of the state. This has severe implications, as we learn the morals of the “politics of identity.” Cultural categories are important, they do matter, they do affect the daily lives of individuals. So I argue in the book that we should amend this definition of the state, and add another element to it, such as “Jewish, democratic and multicultural,” or, saying, “a Jewish democratic state with an Arab minority in it,” to make room for the Arab citizens.

So what do we do? It seems that for now, the politicians are controlling the conversation, and they inevitably emphasiz the divisions and increase the tensions.

I think that we must have a conversation. Like it or not, we are doomed to live together. We, and our children, and hopefully our grandchildren. But how do we talk to one another? First, there is no place for unilateral measures. Second, it is a mistake to divide the process of constitution-making into two separate phases, one involving secular and religious Jews and then another one involving Jews and Arabs. This was the conduct of the Israel Democracy Institute in its “Constitution by Consensus” project. What we need to do is put representatives of all the major social groups -- both Jewish and Arab -- in the room together, and make them talk to each other, as difficult and even painful as that may be.

We have a new Supreme Court president. What can you tell me about the Grunis court?

]I’m very optimistic about the new court’s president and about the appointees of the past five or six years. What I think is common to all of them is a high standard of professionalism, on one hand, and, even more important, modesty, and a sense of appropriateness as to what should be both the court’s style and the substance of its decisions.

Do you see the Supreme Court of the last generation as a failed court?

Not at all. I have my share of disagreements with some of its moves, and its activism, etc., but I have a high regard for the judges individually and for what they did together as a group. My criticism of them is internal. I fully share their values. I’m part of their cultural group, part of the liberal former hegemony, and my criticism comes out of love. I want to make the project of Israel’s liberalism -- which is still very fragile -- become more entrenched and more lasting.

Wasn’t the court in part forced to become activist because of the weakness of the legislature and the executive branch?

I reject that explanation of the Court’s activism, the “vacuum theory.” The reasons are much more profound than that -- the demise of the cultural, social and political hegemony of the labor movement, and the profound anxiety of those in the LFH once they lost control over the political system and over the state bureaucracies subject to that system, and once they realized that those who don’t share their biographies, their culture, their values, had now flocked to the political system and the bureaucracy, and that they have their own distinct cultural orientation and cultural tastes. As of now, no one can tell what is going to happen culturally in the future. Or, maybe we can know -- if we look at the demography -- which is very sad, for, as I note in the book, it does not bode well for the future of Israel’s liberalism.

David B. Green