Will Democracy Survive?

7 Apr

Will ‘Democracy’ Survive? How? Whether? Hard Questions in Dark Times

 

As demagogic leaders with popular approval or at least acquiescence dominate the political process of several important ‘democratic’ states questions need to be asked about the core or indispensable content of democracy. Other states seek the imprimatur of ‘democracy’ but limit drastically the choices open to the citizenry or proclaim themselves ‘a Jewish state’ or ‘an Islamic Republic,’ and are more accurately regarded as an ‘ethnocracy'(Israel) or ‘theocracy'(Iran).  The legitimating impact of being a democracy should be based on something more objective than the language of self-identification, that is, claiming that we are a democracy because we describe our governing arrangements as a democracy, nothing more, nothing less.

 

Procedural and Republican Democracy

The idea of ‘free elections’ is certainly a prerequisite. It is not possible to think of a political system as democratic if it does not allow its citizens to choose without fear or interference among a wide range of candidates of their choice whether the process is filtered through political parties or primaries or otherwise. What qualifies as a free election can be debated endlessly, but it seems enough to suggest that candidates representing significant divergent societal viewpoints compete for support, and that votes are counted honestly. A state should not necessarily lose its democratic credentials if it disqualifies candidates and parties that deny basic human rights to segments of the citizenry or espouse fascist agendas, or if rights are somewhat abridged during periods of national emergency as during wartime. This dimension of democratic governance can be discussed in relation to specific instances by reference to the acceptable limits on the practice of procedural democracy. Such a form of government is sensitive to the dangers of abuses and corruptions of power, invoking ‘checks and balances’ and ‘separation of powers’ as institutional bulwarks of restraint on ‘the tyranny of the mob’ or the predatory behavior of the tyrant, and can be better identified as republican democracy.

 In the contemporary world, due to technology and government ‘secrets’ the constitutional constraints on war making by leaders even if present, tend to be increasingly inoperative. Without democratic accountability in the war/peace agenda democracies lose legitimacy, especially considering the risks and dangers of the nuclear age. It may be that only the elimination of nuclear weapons from the arsenals of all countries can restore a semblance of substantive reality to a procedural or republican understanding of democracy.

 In its liberal versions, democracy in its republican form almost always includes a guaranty and judicial protection of civil and political rights, especially freedom of expression and the right of assembly, but not necessarily, and likely not at all, social and economic rights. In this sense, the tensions between neoliberal versions of capitalism and political democracy are of paramount importance in many societies widely regarded as ‘democratic.’

 

Normative Democacy

 To achieve an inclusive political order a substantive commitment to deal with social and economic basic rights is essential, although infrequently acknowledged, which raises questions about the compatibility of real democracy with contemporary forms of capitalism. The protection of social and economic rights are necessary so as to satisfy the material needs of all people under sovereign control, especially with respect to food, health, shelter, education, environmental protection, responsibility to future generations. Yet a market-driven ethos is not challenged in principle by large-scale homelessness or extreme poverty so long as the gates of opportunity are available to all. This dimension of democratic governance is rarely realized, and is best considered by reference to values-driven, inclusive, and normative democracy. A society also should be protected against war-prone leadership that defies transparency by relying on claims of secrecy and national security.

 

Somewhere in between selecting leaders, upholding rights, and ensuring a minimal standard of living that entrenches human dignity and enables a humane society are considerations of internal and external security. Meeting the threats from within and without while avoiding hysteria, paranoia, and different forms of suppression is a fundamental responsibility of every legitimate state, including those that claim a democratic pedigree. There is no satisfactory label, but since a state unable to protect sovereign rights and political order loses the respect and lacks the discipline of its citizenry, the security dimension can be associated with effective democracy, as without political order and a capability to address external threats and internal order, no form of governance can avoid chaos and foreign penetration, although assessments of this kind involve subjective appreciations of capabilities and political will.

 

There are increasing critiques of democratic states as having weakened the bonds between what citizens seek and what the government does. In the United States, for instance, special interests inflate pharmaceutical products to astronomical heights, insulate gun control from public opinion to absurd degrees, and allow corporations and banks to contribute unlimited amounts to (mis)shape political campaigns. Markets are further distorted by corruption of various kinds that undermine the capabilities of government to serve the people. This dimension of democratic governance can be considered under the rubric of responsive democracy. Without a high degree of responsiveness on central policy issues, a governing process will steadily lose legitimacy, especially if seen as deferring to special interests.

 

Majoritarian Democracy 

There is, increasingly evident, political systems where free elections occur, demagogues participate, often prevailing in recent elections, and a majority of the citizenry is either submissive or supportive. In this kind of atmosphere toxic, win/lose polarizations develop, with extremist and paranoid rhetoric justifying suppression and demonization of undocumented immigrants, refugees, and even asylum seekers, walls are proposed and built, borders are militarized, and exclusionary ideas of political community gain traction in the marketplace of ideas. One result is that the values, views, and security of those vulnerable or opposed are ignored, condemned. Genuine news is dismissed as fake news, and vice versa, creating fact-free political leadership. This kind of political order can be termed majoritarian democracy.

It tends to rest its claims on passion and a perversion of Rousseau’s ‘general will’ rather than reason and evidence, and is contemptuous of limits on the exercise of state power on behalf of the nation, especially if directed against foreign or domestic ‘enemies.’ As a result of the rise of such forms of governance, the rule of law has weakened, and especially, respect for international law and the authority of the United Nations while deference to the ruler increases, coupled by claims of indefinite tenure atop the political pyramid, ratified by periodic votes of approval. Such leaders as Putin, Xi, Trump, Erdoğan, Modi, Abe manifest the trend, treat ‘citizens’ as if ‘subjects’ thereby blurring the distinction between democracy and monarchy when it comes to state/society relations.

 

Aspirational Democracy

 In opposition, are more humanistic concerns that focus attention on the protection of human rights, especially of those who are vulnerable and poor. The idea of ‘democracy to come’ as depicted by the deceased French philosopher, Jacques Derrida, and recently developed further by Fred Dallmayr is being taken more seriously. This idea centers on the belief that democracy in all its manifestations, even at its best, remains an unfinished project with unfulfilled normative potential. It represents a call to work toward an inclusive democracy based on the serious implementation of ‘the spirit of equality’ (Dallmayr) the goal of humane governance as associated with Montesquieu. Such a political order goes beyond upholding the rule of law by seeking to promote justice within and without of sovereign borders. Such a democratic political order would now subordinate, as necessary, national interests to human and global interests in relation to climate change, nuclear weaponry, migration, disease control, peace and security, and the regulation of the world economy. No such democracy has so far existed, but as a goal and ideal this political possibility can be identified as aspirational democracy.

 

Concluding Comments

 These different forms of democracy overlap, and are matters of degree, but do call attention to various and variable features of political life that rest on the shared proposition that ‘the people’ should be regarded as the source of political authority and legitimacy. Yet such a mandate for democracy as flowing upwards from the people, superseding God-given authority figures anointed by ritual and reinforced by claims of a monarchical or divine aura of absolutism, is in many societies again being scrutinized. Many informed and concerned persons are asking whether democracy is any longer the least bad system of governance, yet seem at a loss to propose an alternative. In this setting, the question posed for many of us is whether democracy, as now practiced and constituted, can be revitalized by legitimating reforms. As engaged citizens we must accept this challenge in forms sensitive to the particularities of time, place, challenge, and opportunities.

 Because of globalization in its manifest forms, it is no longer tenable to confine the ambitions of democracy to national spaces. Global democracy has become, is becoming, a matter of ultimate concern. Issues raised concern transparency, accountability, participation, and responsiveness of global policy processes, and of course, how the global is to be linked with the regional and national so as to pursue the goal of global humane governance: equitable, stable, sustainable, peaceful, compassionate, and above all, mindfulness. These concerns will be left for contemplation, and discussion on another day.

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19 Responses to “Will Democracy Survive?”

  1. ray032 April 8, 2018 at 4:41 pm #

    “These concerns will be left for contemplation, and discussion on another day.”
    I see in those words the other story in the Bible that does not get as much coverage as paying Taxes to Caesar.

    They that received tribute money came to Peter, and said, Does not your master pay tribute?
    Peter said, Yes.
    And when he was come into the house, Jesus prevented him, saying, What do you think, Simon? of whom do the kings of the earth take custom or tribute? of their own children, or of strangers?
    Peter said to him, Of strangers. Jesus said to him, Then are the children free?

    The Bible leaves that up to each of us to answer.

    I agree with all your options you have spelled out, Richard and I see so many of your thoughts and words encapsulated in this Biblical glimpse,
    “And Judgment is turned away backward, and Justice stands afar off: for Truth is fallen in the street, and Equity cannot enter.”

    • ray032 April 8, 2018 at 4:51 pm #

      Along the lines and ideas in this piece, Richard, you might appreciate this article from a layman’s heartfelt and deep concern on the End of International Law.

      The mess that’s been created in Syria is extraordinary.

      Syria is also definitively where international law died. Arguably, Iraq and Libya saw international law already collapsing: but Syria is where even all pretense of international law died. It is where borders, sovereignty and the right to self-determination got tossed out the window.

      It is also where compassion, logic, reason, diplomacy, and truth, all seem to have died – along with journalism and along with probably the United Nations – their corpses rotting in the desert for all to see.

      I want to explore here the subject of why international law is so important; why it is dead; and why I blame not just governments and military regimes, but journalists and the media.

      This is not really an article about Syria – but Syria needs to be referenced to illustrate the nature of the problem.

      In recent weeks (and in addition to any alleged war crimes carried out by the Syrian regime or Russia in Eastern Ghouta), US airstrikes have targeted Syrian government forces – it’s not the first time, but it is essentially an act of war. Alleged Russian mercenaries have also been struck by US forces in Deir Ezzor, while Israel has continued strikes against Syrian/Iranian targets – also an act of war.

      And now, most recently, the Turkish and Syrian militaries were drawn into direct confrontation in Afrin, where the Turks are fighting US-backed Kurdish militias – and where the Syrian state forces had entered into an arrangement with the Kurdish fighters to help repel Turkish violations of Syrian territory. A number of Syrian pro-regime personnel have been killed by Turkish attacks.

      Seasoned and respected Middle East expert and former al-Quds editor, Abdel Bari Atwan, recently portrayed the situation in these terms; ‘Warplanes from at least six countries crowd Syria’s airspace, including those of the American and Russian superpowers, while numerous proxy wars rage on the ground below involving Arab, regional and international parties. This testifies to a cold war that is heating up by the day and could have all manner of unpredictable outcomes… the potential to trigger World War III…………………………

      https://theburningbloggerofbedlam.wordpress.com/2018/04/08/the-end-of-international-law/

      February 27, 2012 I posted this article to my Blog
      ‘SYRIA: A WITCH’S BREW – ON THE ROAD TO TEHRAN’

      That has proven to be a realistic Vision with the benefit of 7 years hindsight.

      • Richard Falk April 8, 2018 at 10:13 pm #

        Thanks, Ray, for these perceptive, disturbing remarks. Your central suggestion
        that IL died in Syria, and leaves us bereft, is hauntingly on target. I will give
        this central idea further thought, and if my energies are up to it, try to craft some
        commentary in the form of a response. Warm greetings from Jakarta.

  2. Rabbi Ira Youdovin April 9, 2018 at 12:03 pm #

    Israel is NOT a theocracy and never has been. Those who characterize it as such, either do not understand that Jewish identity, unlike Christianity or Islam, embraces significant secular elements; and/or are intent on smearing Israel by putting it in the same category as Iran, which is a theocracy where crucial decisions affecting the entire population are made by retrogressive mullahs.

    Israel’s Chief Rabbinate, a relic from the British Mandate period, has a very limited range of authority, primarily over internal Jewish issues such as marriage, divorce and conversion. The Knesset (Israel’s parliament) is elected in free elections in which every Israeli citizen of voting age is eligible to participate. Every citizen, Jewish and non-Jewish, receives an identical ballot which lists candidates proposed by each political party. The voter selects the party of his/her choices. All ballots are counted from a single pot, with Knesset seats allocated on the basis of the percentage of the national vote won by each party.

    Only a very small number of Knesset members advocate making Israel a state ruled according to Jewish law applied by rabbis. Many of them are atheists or agnostics, as are many of Israel’s rank and file. What makes Israel a “Jewish” state is not religion but ethnicity. Strictly speaking, it’s an ethnocracy: a state with a Jewish majority that affords Jews a first opportunity after two thousand years of exile to make their own national decisions. At its best, Israel exemplifies Jewish cultural values while affording its non-Jewish citizens full legal rights and unfettered opportunity to enjoy social equality. There’s legitimate debate over how well any ethnocracy can full its stated commitment to citizens who are not part of the majority. But failure does not make the state a theocracy.

    Rabbi Ira Youdovin

    • Richard Falk April 9, 2018 at 6:33 pm #

      Ira:

      I agree with your comment and have made a clarifying change in the text, which
      also allowed me to correct the computer generated word ‘technocracy’ for my intended ‘ethnocracy.’

      My only quibble would be with your final sentence. I think so far as Israel is concerned, it seems
      clear that non-Jews, at least Arabs, are not treated equally to the treatment accorded to Jews. The
      discriminatory policies and practices are mostly contained in nationality laws, as distinct from citizenship
      rights.

      Best wishes,

      Richard

      • Gene Schulman April 10, 2018 at 1:50 am #

        Richard,

        There is much more to quibble about in Ira’s dissembling rant about the goodness of the Jewish state. But since I long ago promised to ignore him, I shan’t quibble. Just to say that if Israel’s current behavior exemplifies Jewish cultural values, I want no part of them.

    • ray032 April 9, 2018 at 6:38 pm #

      God gave the land to us is Theocracy!

      • Gene Schulman April 9, 2018 at 11:15 pm #

        Not theocracy, Ray, mythology. All the rest is hasbara.

      • ray032 April 10, 2018 at 8:42 am #

        With my Faith in God, I agree with much of your comment,

        The Bible has good insights alongside bad pictures.

        I just posted this good one relevant to the spirit of our Times in a Washington Post article this morning.
        https://www.washingtonpost.com/politics/trump-says-us-to-decide-on-response-to-atrocious-syria-chemical-attack-in-24-to-48-hours/2018/04/09/1398c5aa-3bfa-11e8-a7d1-e4efec6389f0_story.html?utm_term=.77028ae01d0c

        The majority voices are ‘Yea! Bomb Assad,Syria and Russians’ without waiting for any evidence. The MSM report it as fact without question. It’s disturbing to see the news media have the power to herd the people like sheep prepared dumb for a slaughter, inciting them for War, a direction they would not want to go if they grasped the logical consequences.

        Watching the Politicians, retired Military, CIA and Homeland Security paid experts all badmouthing Russia/Putin 24/7 for the last year, as if they wern’t trained to do that reflexively all their working Days, CNN is now the Propagandist FOR the Power, having abandoned any notion of Journalistic Integrity, denying their Raison d’Etre and Sacred Duty of speaking Truth to Power.

        The 1st record of anyone speaking Truth to Power and the Beginnings of the Seeds of Democracy is Micaiah, the minor Jewish Prophet. The Bible records this one and only Day in his Life, speaking Truth to the kings of Israel and Judea holding a ‘Summit’ meeting planning War. He had the balls to tell them what they didn’t want to know at risk to his life.

        ALL 400 Prophets in Israel were unanimous telling the kings to ‘go to War and God is with you.’ Micaiah was the solitary dissenting Prophetic voice.

        I wrote about that 1 Day in his life as a lesson. Here’s a glimpse. Journalists Today don’t stand up for Truth in Corporate owned news media deciding what will be said over the heads of the masses. They have Families to support and they know if they rock the boat, they’ll lose their job, and be blacklisted.

        The worst part is, if they don’t speak the Truth, they and we will lose EVERYTHING .

        Before the Battle, the king ordered “Place this one in prison, and feed him a scant amount of bread and a scant amount of water until I come back in peace.’ ”
        Micaiah said: “If you will return in peace, the Lord did not speak to me.” And he said, “ALL the nations listen.”

        https://ray032.com/2011/02/27/seeds-of-democracy/

    • Fred Skolnik April 12, 2018 at 3:53 am #

      Dear Ira

      I’ll take this opportunity to address the issue of ethnocracy, a term that is most often used to diminish or delegitimize Israel as a national state. In normal usage ethnic is used to describe minority groups, like Italian and Irish Americans, who have relinquished their original national identities in favor of the national identity of the host country. This does not mean that Ireland and Italy are not national states. Israel too is a national state, because the Jews have always identified themselves as a nation or people (“am yisrael”). It is in fact a Jewish national state with an Arab or Palestinian national minority in precisely the same way that Turkey is a Turkish national state with a Kurdish national minority, with all this entails.

      Here in any case are some dictionary definitions of the term:

      “Being a member of an ethnic group, especially of a group that is a minority within a larger society.”

      “Connected with or relating to different racial or cultural groups of people.”

      “People who belong to a particular racial or cultural group but who, usually, do not live in the country where most members of that group live.”

      • Richard Falk April 12, 2018 at 4:48 am #

        You have made this argument before, and either you are ignorant of these other
        countries or of Israel’s policies, laws, and practices or disingenuous. No other
        country combines an unrestricted right of return for its dominant ethnicity and
        a denial of any right of return of those who have deep roots of residence in the
        country. The original sin of Zionism going back to its earliest aspirations was
        to establish a Jewish state in a non-Jewish society, a wrong compounded by the
        expulsions of 1948, and subsequently, to achieve a majority Jewish population.
        This is common knowledge, and to obfuscate such perceptions is to cloud any
        constructive conversation. As for ethnocracy, it is a political system dominated
        by a single race or ethnicity, usually at the expense of other subjugated ethnicities.

      • Fred Skolnik April 12, 2018 at 5:01 am #

        No, I am not ignorant. Dozens of countries have immigration policies favoring their own expatriate nationals. Furthermore, the aspiration of Zionism was not to establish a state in a non-Jewish society but in a part of a land with an Arab population in the 1880s of some 400,000 in a territory that today accommodates over 10 million people with room for plenty more. In this land the Arabs had not exercised sovereignty since the 12th century and the people specifically living in the Land of Israel had no sovereign aspirations, thinking of themselves as living in Southern Syria and as an indistiguishable part of the Arab nation. And once again, the Jews are not a race or ethnicity, as I pointed out.

      • Richard Falk April 12, 2018 at 7:59 am #

        I would recommend that you read the book reviewed here, which relies on prominent
        and mainstream Israeli sources to validate the conclusion that Israel is ‘an exclusionary
        democracy,’ which is a synonym for ‘an ethnocracy.’

        ***************
        Israel Claim to be a Jewish State and a Democratic State: Legalism versus Justice

         

         

        [Prefatory Note: This post is a somewhat revised version of a book review that was published by the Journal of Palestine Studies, Vol. XLVII, No. 2 (Winter 2018), p. 81. The book is an important contribution to an understanding of two dimensions of the Palestinian experience within the state of Israel: first, the reliance on law to ‘legalize’ discrimination, and the accompanying denial of fundamental rights that has resulted; secondly, to develop a distinct Israeli jurisprudence that seeks to legitimize ‘ethnocracy,’ yet disguise this reality by claiming that the nationality laws and regulations distinguishing Jews and non-Jews do not invalidate Israeli claims to be a democracy.]

         

         

        The Dynamic of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State, by Mazen Masri. Oxford, UK & Portland, OR: Hart Publishing, 2017. 256 pages. $99.00 cloth.

        This book is an odd scholarly achievement. It relies on a sophisticated analysis to reach conclusions long obvious to close observers of the manner in which Israeli judges and jurists manipulate law to maintain the Zionist claim that Israel is both a Jewish and a democratic state. The author explores the various ways by which Israel has kept this delicate balance between core goals in obvious tension, if not outright conflict. What makes Mazen Masri’s scholarship worthwhile is his scrupulous analysis of precisely how Israeli scholars and jurists have squared this legal circle. Mazri, a Senior Lecturer in Law at the City Law School, University of London, also demonstrates how members of the Knesset, jurists, and judges have adapted the rule of law so that it has become a sharp instrument of pervasive injustice at the expense of the Palestinian people.

        Masri is more cautious than I would be in drawing broader policy conclusions. He asserts “[p]rimie facie, the Jewish and democratic elements are at odds, or at least at tension, with each other” (p.4). I would not hesitate to conclude these elements flagrantly contradict one another throughout the evolving Israeli narrative in practice as well as in theory. I would argue that the ideological role of Israeli law is to camouflage this contradiction to soothe the conscience of liberal Zionists and project an international image of democratic legitimacy. Up until recently, this Zionist enterprise has been largely successful, highlighted by the uncritical recitation of the mantra that ‘Israel is the only democracy in the Middle East.’

        Although Masri acknowledges the relevance of the settler colonial origins of Israel, the focus of his book is limited to the internal workings of the Israeli legal system as a complex operational reality. The scope of Masri’s critique makes no effort to encompass the Palestinian national movement. It is confined to the juridical treatment of the Palestinian minority within the Israeli state. The book is at its best when depicting the legalistic acrobatics of Arahon Barak, former chief justice of the Israeli Supreme Court, and Ruth Gavison, an influential professor, who do their utmost to resolve the contradictions in practice between sustaining the Jewish identity of the state and its central legitimating claim to be a democracy.’ This is not to say that the democratic torch should be handed to one of Israel’s Arab neighbors, but rather that it has become increasingly clear to anyone willing to look closely at the Israeli reality that it has long forfeited the democratic side of its defining identity, except as a figment of the public-relations imagination of the Zionist movement and its geopolitical support structure.

        What the author skillfully shows, with an impressive exposition of Israeli legal rationalizations, is how Israeli demographic concerns exerted a structural influence on lawmaking, especially, with respect to the differential rights of return enjoyed by Jews and Palestinians, as expressed in immigration laws and interpretations of citizen rights. For instance, Masri shows how Gavison cleverly argues, and the courts follow along, that it is permissible for a democratic state to sustain the ethnographic identity of its existing political community by favoring one ethnicity over another. In practical terms this meant it was legally acceptable for the Knesset to discriminate between Jews and others in the context of immigration so as to maintain the Jewish identity of Israel. There is an Orwellian trope here. In order to preserve the Jewish state as ‘democratic’ it was necessary, and hence permissible, to discriminate against the Palestinian minority, thereby violating ‘the spirit of equality’ that has been understood as vital for true democracies since the time of the French Revolution.

        This green light given to ethnic discrimination included a legal endorsement of an unlimited right of return for Jews anywhere in the world no matter how tenuous their connection with the land and its history of Israel. The demographic impacts of this dual treatment of immigration rights as between Jews and non-Jews was accentuated by intense efforts to induce Jewish immigration through a reliance on a variety of economic incentives and subsidies, as well as on appeals to diaspora Jews to fulfill their identity as Jews by emigrating to Israel. In contrast, Palestinians, even those with the deepest conceivable roots in the territory, now occupied by the Israeli state could be and were legally excluded, even if exclusion resulted in permanent family separation or other hardships. As Masri persuasively shows, it was vitally important to the Zionist Project that their discriminatory treatment of Palestinians be made to seem consistent with Israeli applications of the rule of law. It was also important to rely on law to identify who was entitled to be considered ‘a Jew.’ In effect, law was useful in implementing ethnocracy, especially its features that discriminated against non-Jews.

        Masri has written an admirably scholarly account of the way Israeli legal thought and governmental institutions have produced this outcome by his meticulous examination of the internal workings of the Israeli legal system. He labels the overall phenomenon as “exclusionary constitutionalism.” This emphasis on constitutional foundational verities of Israel is important and persuasive, and is most authoritatively set forth in the Declaration of the Establishment of the State of Israel (14 May 1948), which not only prefigures the Jewish/democratic problematique that is the concern of Masri, but also helps us understand that an apartheid future for Israel seemed inevitable from the moment of its inception as a state. As Masri notes, “the logic of elimination” (p.125) virtually compels a settler colonial political community, which aspires to achieve sovereign statehood and international legitimacy, to suppress and discredit resistance challenges mounted by the natives. Although the point is not directly made, I finished Masri’s book with the realization from its Zionist origins in the late 19th century that the goal of a Jewish state in Palestine could never be credibly reconciled with achieving a democracy based on the substantive equality of its citizens unless their ethnicity were to be disregarded. An ethnocracy was within the realm of the Zionist attainability, and that is what Israel has always been from the day of its establishment, however much elaborate legal cosmetics were applied to hide the blemishes and nurture more benign visions of the Israeli reality.

        Masri’s contribution extends beyond its immediate relevance to the Palestinian experience in Israel. It offers a frightening template for how law can serve the purposes of injustice if deployed even by individuals endowed with subjectivities of good will yet pursued for the sake of unworthy goals. In this regard, the creativity of the jurist becomes the subservient handmaiden of an oppressive state, and likely unknowingly assists in the dirty work of fashioning an apartheid state. Of course, the problems of the Palestinian minority is but the tip of the bloodied iceberg of Israeli subjugation of the Palestinian people as a whole, an apartheid structure of ethnic victimization that extends to those living under occupation, in refugee camps and involuntary exile, as well as Gazan captivity. In effect, the torments of Palestinians in Israel, which Masri so usefully depicts, is a relatively small piece in the larger Israeli matrix of control that comprises the entire Palestinian ordeal.

        In this respect, those that rally for peace beneath the slogan ‘End the Occupation’ are missing the point that the Zionist bottom line has always required the fragmentation and subjugation of the Palestinian people as a whole. To achieve peace, a precondition for constructive negotiations, must be a clear commitment by Israel to ‘End Apartheid’ as it now applied to the Palestinian people, whether they live under occupation, in refugee camps, in exile, or as a subordinated minority in Israel. When Israel produced the Nabka in 1948, it dispossessed Palestinians so as to ensure a Jewish majority population in Israel, a coherent catastrophe afflicting all Palestinians. It has been a destructive tactic by Israel and its supporters to treat the Palestinian struggle as primarily about territory rather than about people. Shifting the discourse on peace and struggle to apartheid corrects this fundamental mistake of perception and peace strategy.

        Israel Claim to be a Jewish State and a Democratic State: Legalism versus Justice

         

         

        [Prefatory Note: This post is a somewhat revised version of a book review that was published by the Journal of Palestine Studies, Vol. XLVII, No. 2 (Winter 2018), p. 81. The book is an important contribution to an understanding of two dimensions of the Palestinian experience within the state of Israel: first, the reliance on law to ‘legalize’ discrimination, and the accompanying denial of fundamental rights that has resulted; secondly, to develop a distinct Israeli jurisprudence that seeks to legitimize ‘ethnocracy,’ yet disguise this reality by claiming that the nationality laws and regulations distinguishing Jews and non-Jews do not invalidate Israeli claims to be a democracy.]

         ********************

         

        The Dynamic of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State, by Mazen Masri. Oxford, UK & Portland, OR: Hart Publishing, 2017. 256 pages. $99.00 cloth.

        This book is an odd scholarly achievement. It relies on a sophisticated analysis to reach conclusions long obvious to close observers of the manner in which Israeli judges and jurists manipulate law to maintain the Zionist claim that Israel is both a Jewish and a democratic state. The author explores the various ways by which Israel has kept this delicate balance between core goals in obvious tension, if not outright conflict. What makes Mazen Masri’s scholarship worthwhile is his scrupulous analysis of precisely how Israeli scholars and jurists have squared this legal circle. Mazri, a Senior Lecturer in Law at the City Law School, University of London, also demonstrates how members of the Knesset, jurists, and judges have adapted the rule of law so that it has become a sharp instrument of pervasive injustice at the expense of the Palestinian people.

        Masri is more cautious than I would be in drawing broader policy conclusions. He asserts “[p]rimie facie, the Jewish and democratic elements are at odds, or at least at tension, with each other” (p.4). I would not hesitate to conclude these elements flagrantly contradict one another throughout the evolving Israeli narrative in practice as well as in theory. I would argue that the ideological role of Israeli law is to camouflage this contradiction to soothe the conscience of liberal Zionists and project an international image of democratic legitimacy. Up until recently, this Zionist enterprise has been largely successful, highlighted by the uncritical recitation of the mantra that ‘Israel is the only democracy in the Middle East.’

        Although Masri acknowledges the relevance of the settler colonial origins of Israel, the focus of his book is limited to the internal workings of the Israeli legal system as a complex operational reality. The scope of Masri’s critique makes no effort to encompass the Palestinian national movement. It is confined to the juridical treatment of the Palestinian minority within the Israeli state. The book is at its best when depicting the legalistic acrobatics of Arahon Barak, former chief justice of the Israeli Supreme Court, and Ruth Gavison, an influential professor, who do their utmost to resolve the contradictions in practice between sustaining the Jewish identity of the state and its central legitimating claim to be a democracy.’ This is not to say that the democratic torch should be handed to one of Israel’s Arab neighbors, but rather that it has become increasingly clear to anyone willing to look closely at the Israeli reality that it has long forfeited the democratic side of its defining identity, except as a figment of the public-relations imagination of the Zionist movement and its geopolitical support structure.

        What the author skillfully shows, with an impressive exposition of Israeli legal rationalizations, is how Israeli demographic concerns exerted a structural influence on lawmaking, especially, with respect to the differential rights of return enjoyed by Jews and Palestinians, as expressed in immigration laws and interpretations of citizen rights. For instance, Masri shows how Gavison cleverly argues, and the courts follow along, that it is permissible for a democratic state to sustain the ethnographic identity of its existing political community by favoring one ethnicity over another. In practical terms this meant it was legally acceptable for the Knesset to discriminate between Jews and others in the context of immigration so as to maintain the Jewish identity of Israel. There is an Orwellian trope here. In order to preserve the Jewish state as ‘democratic’ it was necessary, and hence permissible, to discriminate against the Palestinian minority, thereby violating ‘the spirit of equality’ that has been understood as vital for true democracies since the time of the French Revolution.

        This green light given to ethnic discrimination included a legal endorsement of an unlimited right of return for Jews anywhere in the world no matter how tenuous their connection with the land and its history of Israel. The demographic impacts of this dual treatment of immigration rights as between Jews and non-Jews was accentuated by intense efforts to induce Jewish immigration through a reliance on a variety of economic incentives and subsidies, as well as on appeals to diaspora Jews to fulfill their identity as Jews by emigrating to Israel. In contrast, Palestinians, even those with the deepest conceivable roots in the territory, now occupied by the Israeli state could be and were legally excluded, even if exclusion resulted in permanent family separation or other hardships. As Masri persuasively shows, it was vitally important to the Zionist Project that their discriminatory treatment of Palestinians be made to seem consistent with Israeli applications of the rule of law. It was also important to rely on law to identify who was entitled to be considered ‘a Jew.’ In effect, law was useful in implementing ethnocracy, especially its features that discriminated against non-Jews.

        Masri has written an admirably scholarly account of the way Israeli legal thought and governmental institutions have produced this outcome by his meticulous examination of the internal workings of the Israeli legal system. He labels the overall phenomenon as “exclusionary constitutionalism.” This emphasis on constitutional foundational verities of Israel is important and persuasive, and is most authoritatively set forth in the Declaration of the Establishment of the State of Israel (14 May 1948), which not only prefigures the Jewish/democratic problematique that is the concern of Masri, but also helps us understand that an apartheid future for Israel seemed inevitable from the moment of its inception as a state. As Masri notes, “the logic of elimination” (p.125) virtually compels a settler colonial political community, which aspires to achieve sovereign statehood and international legitimacy, to suppress and discredit resistance challenges mounted by the natives. Although the point is not directly made, I finished Masri’s book with the realization from its Zionist origins in the late 19th century that the goal of a Jewish state in Palestine could never be credibly reconciled with achieving a democracy based on the substantive equality of its citizens unless their ethnicity were to be disregarded. An ethnocracy was within the realm of the Zionist attainability, and that is what Israel has always been from the day of its establishment, however much elaborate legal cosmetics were applied to hide the blemishes and nurture more benign visions of the Israeli reality.

        Masri’s contribution extends beyond its immediate relevance to the Palestinian experience in Israel. It offers a frightening template for how law can serve the purposes of injustice if deployed even by individuals endowed with subjectivities of good will yet pursued for the sake of unworthy goals. In this regard, the creativity of the jurist becomes the subservient handmaiden of an oppressive state, and likely unknowingly assists in the dirty work of fashioning an apartheid state. Of course, the problems of the Palestinian minority is but the tip of the bloodied iceberg of Israeli subjugation of the Palestinian people as a whole, an apartheid structure of ethnic victimization that extends to those living under occupation, in refugee camps and involuntary exile, as well as Gazan captivity. In effect, the torments of Palestinians in Israel, which Masri so usefully depicts, is a relatively small piece in the larger Israeli matrix of control that comprises the entire Palestinian ordeal.

        In this respect, those that rally for peace beneath the slogan ‘End the Occupation’ are missing the point that the Zionist bottom line has always required the fragmentation and subjugation of the Palestinian people as a whole. To achieve peace, a precondition for constructive negotiations, must be a clear commitment by Israel to ‘End Apartheid’ as it now applied to the Palestinian people, whether they live under occupation, in refugee camps, in exile, or as a subordinated minority in Israel. When Israel produced the Nabka in 1948, it dispossessed Palestinians so as to ensure a Jewish majority population in Israel, a coherent catastrophe afflicting all Palestinians. It has been a destructive tactic by Israel and its supporters to treat the Palestinian struggle as primarily about territory rather than about people. Shifting the discourse on peace and struggle to apartheid corrects this fundamental mistake of perception and peace strategy.”####

      • Fred Skolnik April 12, 2018 at 5:09 am #

        And please explain to me why you pointedly refrain from acknowledging that the Jews are a nation or people..

      • Richard Falk April 12, 2018 at 8:04 am #

        I am not an expert on this, but I know there is an ongoing debate stimulated
        by Shlomo Sand’s The Invention of the Jewish People and a later book. This is
        not germane, in any event, to an appraisal of the Zionist project to establish
        a Jewish polity in a society where at the time of the Balfour Declaration the
        Jewish population was less than 6%, and even in 1947 when the partition resolution
        was adopted the Jewish population was only 30%. Only after the Partition War was
        a Jewish majority attained.

      • Fred Skolnik April 12, 2018 at 8:20 am #

        Sorry, but I don’t buy into this line of polemical writing that plays with words and concepts to put the “enemy” in the worst possible light. I have outlined the status of Israeli Arabs and have pointed out more than once that as a national minority they experience certain unavoidable natural disabilities. With regard to immigration, this has absolutley nothing to do with the democratic rights of Israeli Arabs. A child born abroad to American parents is automatically an American citizen and can enter the United States freely. A child born to non-American parents (say in Italy) is not. This in no way is discriminatory toward Italian Americans. When you talk about “free” immigration, which is not the rule anywhere in the world, you are talking about the Palestinian refugees and no one else. This is not an immigration issue but a political issue that has to be weighed against the new realities that were created as a result of the Arab invasion of 1948, which includes the displacement of an equal number of Jews from Arab countries, who lost everyting they owned.

      • Richard Falk April 12, 2018 at 6:52 pm #

        It is not ‘polemical’ but empathetic with a cruel reality that has imposed
        incredible suffering on the Palestinian people for more than a century that
        you choose to ignore by dwelling on irrelevant remote historical rationalizations.

  3. Beau Oolayforos April 12, 2018 at 1:52 am #

    Aleksandr Solzhenitsyn was impressed by the local governments in some New England states. He, Lord Byron, and many others have approved of the canton system in Switzerland. It would be safe to say that, for the Swiss, the gap between ‘what the people want’ and ‘what government does’ is narrower than most places, maybe any place.

    Why? It’s worth going there to find out, O Ye Wise Policymakers. To start with, War is a relic of museums – they haven’t fought one in centuries. Armed to the teeth? Sure – but only for defense of the homeland. The resultant wealth is enormous: practically zero crime, healthcare taken for granted, etc.,etc. They seem light years ahead of the US. “Democracy” is pronounced a little differently in the 3 or 4 languages, which is amusing.

    Krishna said that theoretical knowledge linked with the practical is the ‘supreme secret’, so I always wished that Yugoslavia had sent its future hopeful leaders to study in Switzerland, but alas….

    • Richard Falk April 12, 2018 at 4:53 am #

      As usual, a thoughtful and instructive comment, which also recalls
      the work of Fritz Schumacher, especially SMALL IS BEAUTIFUL.

      Sometime you may want to watch BREAD AND CHOCOLATE for a somewhat
      darker rendering of the Swiss reality, which doesn’t diminish the
      practical wisdom that impresses you about the impacts of cantonal governance.

      Greetings, Richard

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