The Israeli’s identity is a complex matter, with numerous scholars attempting to give it meaning with little success. Researchers from diverse backgrounds considered Israeli identity through numerous approaches: religious, cultural, geological, socially constructed, or a mixture of various approaches—Yet a single, definitive identity was not possible. Israel politically calls itself a “democratic and Jewish State” and as a result, the only institution which has a monopoly on interpreting the Jewish State is the Supreme Court. The identity of Israel as both “democratic and Jewish” is a delicate balance, and as such the Supreme Court plays a vital role in maintaining this political and religious balance. Ultra-religious groups, specifically the Haredim, threaten to tip the balance, so that Israel will increasingly be more religious and less democratic. The Haredim’s most significant obstacle is the Supreme Court which is the defender of Western Liberalism. The consequences of the Haredim gaining power include weakening the Supreme Court’s judicial activism, moving Israel towards theocracy by establishing Halachic laws and distorting the fragile identity of Israel as a “democratic and Jewish state”.
It is vital to recognize, that the Supreme Court’s importance is defined by Judicial activism—that is it utilizes entrenched laws to determine legal and legislative decisions legality. As Israel has no Constitution, one would assume that Israel has a weak judicial branch with a very centralized legislative and executive branch; however, this is not the case as Israel utilizes judicial activism. This is evident when investigating the history of the Supreme Court, and the transformation of the Judicial branch, which makes Israel exceptional. In the 1950s and 1960s the High Court of Justice (HCJ) avoided judicial activism and preferred to restrain itself. It was also very difficult to have a case heard by the HCJ, as the courts at the time where very strict and had guidelines regarding “standing”, which placed the burden of proof on the victim when a violation took place. One primary reason why the HCJ was so reluctant was due to its vision, where it saw itself as a problem solver; however, at the same time not to challenge the other branches of government due to fear of criticism from those branches. Generally a Constitution in other democracies empowers the Judicial branch; having a ‘supreme law’ gives Justices power to override the law on the basis that a legislation is in violation of the Basic Laws. Remarkably Israel attempted to establish a Constitution as early as 1949; however; due to political infighting and Prime Minister Ben-Gurion opting to wait until the Jews of the diaspora returned, a formal Constitution was not enacted. One can argue that the years leading to the foundation of the State were marked by chronic instability, and as such it would not be in the interest of Ben-Gurion to have a Constitution that aims to limit government powers. The Supreme Court saw itself as a neutral institution; it increasingly saw itself as a referee between the Knesset and Executive branch. Due to the dysfunctional system of Israeli institutions the increasing competition between the branches and their political manipulation and bargaining. This meant judicial branch could no longer hold a neutral position and took an active role in implementing policy. Gideon Doron recognizes this shift of the Supreme Court from a neutral party into a “power broker and policymaking”. One can see how the instability of the two branches (Knesset and Executive) helped give the Justice new tools such as formulating policy.
The most significant catalyst for change within the Supreme Court has been Aharon Barak whom played a critical role when he became President of the Supreme Court (1978-1995). Barak played a vital role in reforming the Supreme Court and he was credited towards advocating for judicial activism and strengthening the powers of the judicial branch. Judicial activism refers to the ability of the Supreme Court to veto laws that it interprets as violating the Basic Laws. The Basic Laws include: Knesset (1958); Lands of Israel (1960); President of the State (1964); Government (1968, 1992, 2001); State Economy (1975); the Army (1976); Jerusalem, the Capital of Israel (1980); Judgment (1984); State Comptroller (1988); Freedom of Occupation (1992); Dignity of Man and his Freedom (1992). Israeli Supreme Court has the power to veto laws that violate the Basic Laws. Barak helped entrench the Basic Laws, as Constitution-like without having to have a Constitution, calling it “a cripple Constitution”. He was a secular Jew, and wanted to ensure that Israel maintains a democratic practices. Barak emphasized that by having a State of Israel as a ‘democracy and as Jewish state’ it would make the two seemingly incompatible identities clash until there were common values that would unite secular and religious Jews. Barak saw the importance of the Supreme Court not in its transformation into becoming a ‘powerbroker’ but rather its the ability to shape and change Israeli liberal identity.
The values that direct the judge are the fundamental values. They are not the results of a public opinion survey. They are not populism carrying away the masses. They are not changing styles. They are not sensational newspaper headlines. All of these are important. They may, in the long term, permeate and alter the soul of the nation.
Barak emphasizes on the idea that the Basic Laws, are meant to protect Israeli’s individual rights. For example, Israeli society does not have one Jewish culture or identity but rather many different types— these are secular Jews, religious Jews, Arabs, Catholic and ethnic Jews. One can see that the Basic laws are a means to bridge the diverse populace into a nationalistic Israeli identity. In effect, the people of Israel are directly and indirectly influenced by the Supreme Court. They are directly influenced by the courts legal decisions, and indirectly influenced by its ability to reconcile various cultural subgroups. The Supreme Court’s influence also allows for the benefits given to nations that have an active judicial Court, such as freedom of expression. Without a powerful judicial branch that has the ability to intervene, it would be difficult for citizens to critique or express their frustration with government. Most Israelis, no matter their background, religion or ethnicity are able to express themselves without the fear of prosecution and thus freedom is the result of the Supreme Court. In this aspect one can argue that Israel leads other democracies in the realm of freedom of expression. The Supreme Court strengthened the identity of Israeli nationality by protecting rights, which are strongly entrenched within the State. The Supreme Court has a weakness, the ultra-religious Haredim who have strongly opposed the legitimacy and rulings of the HCJ.
The Haredim or Haredi, are an ultra-religious group, they dress in black, they are concentrated mainly in Jerusalem, N’nei and other small pockets in Israel. It is also important to recognizes there are also types of Haredi who reject or integrate into modern society. The Haredim make up 6% of the population are becoming more organized and have impacted politics. The Haredim are one of the poorest group in Israel and heavily rely on State pension and subsides. Mechachem Mautner, the Haredim gained increasing powerful since the annexation of Jerusalem during the 1967 Six day war which lead to religious fundamentalism. As a result of the annexed territory did not only lead to increased nationalism, liberal ideology but also lead a religious movement. The Haredim pose a challenge to the Supreme Court because they are ideologically against the ideas of liberal movements. For instance Rabbi Avraham Ravitz who was a member of the United Torah Jewry Party stated: “The Supreme Court has to understand that it is influenced by a [liberal] culture that not all of Israeli society shares”. As a result there is a large conflict between the Haredim and those of secular Jews that will ultimately lead to a struggle that will define the identity and culture of Israel.
This ultra-religious group have increasingly become weary of the powers of the Supreme Court, especially within the realm of religion, family law and gender rights—which have been traditionally the rabbinical court’s jurisdiction. The Haredim have been very critical of the Supreme Court on the issue of Yeshiva students entering the Israeli Self Defines Force (IDF). Yeshiva allows its students to defer military service if they are full time students. The Supreme Court on February, 21, 2012 has suspended the Tal Law, a statue that requires to be renewed every five years, which allowed the yeshiva students to delay entering the IDF. By suspending the Tal Law, it makes yeshiva students obligated to join the military. This greatly angered the Haredim whom where quick to critique the HCJ’s ruling, they quickly mobilized to protest. March 2, 2014 the ultra-religious Haredim had a protest about seminary student exceptions from military service, between 250,000-400,000 Haredim attended. This type of protesting hurts the image and legality of the Supreme Court in three ways. First the image of such large protests influences the Justices decision making. For instance the protesting affects the Judges mind-set where they are less inclined in the future to favour such laws according to Jonathan Rosenblum. According to Rosenblum, the protesting affects a judges decision-making, as such they would be more cautious towards Haredim, when making a judgement that may affect the group. Secondly, public opinion could be sympathetic to the Haredim. Thirdly and most, critically Haredim have a strong influence politically and tend to centralize the votes within Degel Hatorah, Agudat Yisrael and Shas which are religious political parties. For example, as a result of the protesting regarding military enrolment of Yeshiva students; the three parties issued a joint declaration disallowing seminary students from enrolling in the IDF as a direct challenge to the Supreme Court ruling. Political parties have attempted to curb the powers and influence of the HCJ, on issues of Court and religion. For instance in 1999, the Supreme Court changed the 1947 Status Quo Agreement, which gave exclusive right handling all private collective religiously related affairs. This lead to massive protesting from the Haredim for the first time gathering the same number of Jews with the 2014 Supreme Court ruling on Yeshiva students. This led to two Knesset members one religious the other right to draft a bill to limit the Supreme Court by creating a special High Court for Constitutional Affairs—this occurred as a direct result of protesting by Haredim. One can no longer debate the close relations of the Haredi and political groups. Religious Political Parties have sense been playing a critical role in advancing Haredim interests and agendas.
Driving the conflict is the growing power of two diametrically opposed forces. Fervently Orthodox parties have enjoyed tremendous influence in the support for their budgetary priorities and seeking to formalize in law their control of Jewish religious Institutions. (Michael S. Arnold)
According to Michael S. Arnold, Jewish Exponent Correspondent, the Haredim have become politically powerful. This is evident from the concessions the Haredi have been able to gain from government, especially on religious matters, as a result of their well-organized lobbying. To recap the Haredi undermine the Supreme Court in three ways, by holding protests to pressure Judges and to gather sympathy from the public and use political parties to drag undermine the Judicial branch.
If the Supreme Court’s powers are undermined Israel will move towards a theocracy, the balance of Israel as democratic and Jewish will be tilted towards a religious State. As such the demographics of Israel are changing, where the natural increase in population of religious Jews has increased where infants in Israel account for 30% belonging to Ultra-Orthodox families. It is clear that the future of Israel in 2030 has a possibility of moving Israel towards a theocracy, however as of now Israel is not a theocratic State. The reasons to why Israel is not theocratic is due to its rooted liberal institutions that predate the Israeli state—under the British controlled Palestine. The entrenched institutions help shape the Israeli culture, as mentioned earlier directly or indirectly, as such Israeli’s root their identity through being a democracy. Most importantly political parties such as Shas, which is the most prominent Haredim party, has not forcibly advocated Halachic Laws. As such there is evidence to suggest that Israel is not heading towards a theocracy. The Haredim are simply not willing to compromising on issues regarding religious authority on matters of family law, gender equality in Jerusalem, marriages, divorces and questions on who ‘who is a Jew’. Whenever the Haredi feel the court infringes on issues that are of religious domain or if they go against Halacha (Jewish Laws) they will ignore or threaten the court. One questions whether the Courts supremacy on interoperation is being challenged by an ever-growing religious-right Knesset and the powerful lobbying of the Haredim.
The Idea of Israel as Jewish and democratic has become dominated with the conflicts between the Supreme Court and the Haredim. The Court acts as an equilibrium on the issues of religion and rights protected under the Basic Laws. As a result the HCJ attempts to be as delicate as possible to maintain the status qua of being democratic and Jewish. According to Aharon Barak:
In solving hard cases, it is appropriate for the judge to utilize his discretion in choosing from multiple linguistic meanings that which realizes the purpose of the legislation. To this purpose, the interpreter stands apart from the drafter, the history, and the fundamental values of the system. In this framework, each one receives interpretative inspiration from Jewish Law.
Barack, emphasis that the HCJ and Jewish law collides together to create a decision that attempts to satisfy a requirement of democratic values and Jewish values. The Court recognize that Israel has a majority Jewish population; however, it also recognizes that there is a large minority that are Arab and Israeli. As such the Court’s have a responsibility to be impartial, impersonal and judge decisions based on the common good for Israel.
When looking at the complex nature of Israeli identity, we recognize that it has become a battle filed between secular and religious ideologies. We recognize that these institutions include the Knesset, the Executive branch, the Israeli Self Defence Force the Histadrut, the Kibbutz, Political Parties and the Supreme Court, all these consortiums contribute to the Israeli identity. Institutions were not only created or shaped by the populace but also are also reciprocal where the institution itself shaped the Israeli identity and moulding the populace. In self-avowedly religious political State of Israel, the nature of its political institutions is closely related to its religion. We have discussed how the mechanisms of the Supreme Court, judicial activism and the challenges posed by the Haredim. In many ways the future of Israel will continue to be a dividing and dominate issue and as such the identity of the State can not be answered until the the divide between religion and democracy is bridged.
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