Israel’s judicial crisis is not surprising

Izzeddin Araj

Mondoweiss  /  August 1, 2023

Israel’s settler-colonial ideological mission not only impacts Palestinians but prevents the country from being a democracy for Jews as well.

Since its publication in 2005, Azmi Bishara’s seminal book, From the Jewishness of the State to Sharon (in Arabic), has remained an essential reference for understanding the Israeli political system. Over the past years, many have maintained that Bishara’s book is not a mere historical account of a theocratic political system, but an excavation into the core of Israeli democracy. He does so with a critical lens, exploring the colonial underpinnings of Israeli “democracy,” and unearthing the intricate relationship between democracy and ongoing colonization.

The book’s enduring legacy stems from its ability to analyze the enduring challenges and contradictions of Israeli democracy. Despite being written nearly two decades ago, its relevance persists as it resonates eerily with the current crisis gripping the country. While the mainstream Western media insists on framing this crisis as an abnormal deviation from the liberal democratic history of Israel, Bishara’s book provides valuable insights into the complexities and contradictions that have shaped and continue to shape Israeli politics, particularly the settler colonial nature that hinders its realization as a true democracy.

Ideological mission rather than equal citizenship   

Bishara has always argued that equal citizenship is the foundation of a truly democratic nation. However, he emphasizes that the case of Israel tells a different story, as the state has embraced an ideological mission from its inception, replacing citizenship as the primary instrument for democratic nation-building. This mission, rooted as it is in the Zionist ideal of “Jewishness,” aimed to attract Jews worldwide and facilitate Jewish settlement in Palestine, and continues today through settlement and expansion.   

Bishara asserts that this colonial ideology of settlement and Jewishness has essentially distorted Israeli democracy, making it exclusive rather than representative, resulting in a state that falsely imagines itself to include many non-citizens (diaspora Jews) while excluding others who are actual citizens (Palestinian Arabs). He notes that this reliance on an ideological mission of settlement and Jewishness, rather than on the ideal of equal citizenship, not only impacts Palestinians but undermines even what has developed as an exclusive democracy for Jews.

A distinctive aspect of Israel lies in the intertwining of religion and nationalism. In contrast with other cases where religion is nationalized or used to shape national symbols, Israel’s sovereignty is explicitly built upon religious mythological justifications, which reinforces Zionist ideology. The author, while critiquing the theocratic nature of Israel’s political system, places this inseparability of religion and nationalism within the broader colonial context, where discussions surrounding religion and Jewish identity become inherently tied to questions of who belongs to the colonial nation and who is entitled to the land. Within this framework, the state’s ideological mission shapes the character of the nation, and the intertwining of religion and nationalism plays a crucial role in defining its demographic borders.

The ongoing repercussions of this ideological mission are manifested in the further Judaization of Palestine, which not only supplants equal citizenship but also compromises the role of institutions within Israel. This mission is prioritized over institutions and their functions, as it is considered the very foundation of the nation itself, and as such reflected in the current debates about the true nature of the state. 

For example, Bishara brings attention to a significant disparity between the vision of the state held by the liberal Zionist elite – as expressed in foundational laws and the functioning of unelected institutions (mainly the Supreme Court), and the vision of the mainstream political parties that control the elected institutions. These contradictions between elected and unelected bodies are not uncommon in liberal democracies, as the author himself explores in his book What is Populism? (2019). However, Israel’s case once again represents an anomalous situation. As he explains:

“This confrontation continues to represent one of the contradictions of contemporary ‘Jewish democracy.’ It intersects with three fundamental and enduring conflicts: the struggle over the relationship between religion and state, the clash over liberties and their relevance to national and security matters, and the tension between equal citizenship and the Jewish character of the state.”

From the Jewishness of the State to Sharon, p. 16.

The tension between settler colonialism and democracy

Israel’s unique case stems mainly from its colonial nature, where debates over the nation’s public good become debates over the most effective means of fulfilling the ideological mission. For extremist settler parties, unelected institutions like the Supreme Court present a dual challenge: they not only fail to align with the said mission but also obstruct the settler community’s ability to carry it out. As apparent in the ongoing crisis of recent months, extremists who support the “judicial reform” refer to the inability or lack of willingness of these institutions to achieve the collective wish of further expansion.  

Right-wing literature concerning these institutions substantiates Bishara’s argument. Erez Tadmor, a figure with close ties to Netanyahu, expounded on these impediments in his 2017 book (in Hebrew), Why do you Vote Right and Get Left? Tadmor argues that one significant obstacle to achieving full right-wing rule in Israel is the presence of unelected institutions, with the Supreme Court at the forefront. According to Tadmor, these institutions hinder the government’s functioning and, in turn, the realization of the majority’s will in the West Bank.

Tadmor contends that such institutions foster a bureaucratic environment that tolerates ideologies hostile to the Jewish nature of the state, citing the example of Azmi Bishara’s candidacy in the Knesset elections as a point of perceived tolerance. From his perspective, the inefficiency of these institutions emerges most prominently in the West Bank, as it disrupts settlement efforts. His proposal involves reducing the Supreme Court’s powers in the occupied territories, particularly concerning matters related to land confiscation and human rights violations. Those same proposals are closely in line with the proposed laws as part of the current judicial overhaul in Israel today.

Certainly, there are other areas of conflict regarding today’s judicial “reforms” that may not be directly related to the Palestinians, such as debates concerning lifestyle and the societal functions of the state. However, the colonial character of Israel significantly influences the alignment of perspectives regarding the purpose and effectiveness of said institutions. While most competing political parties within Israel generally agree on the colonial role of the state and the “necessity” of violence against Palestinians, disagreements arise in regard to the ways of managing and exercising such violence, as clear in the debates about annexation or “illegal” settlements. 

As previously explained, these extremist groups are not misguided, as some may assume, in perceiving Israeli democracy as a means to advance their ideological agenda, particularly the ongoing colonization. They nonetheless appear to perceive unelected institutions as having become constraining, limiting their ability to pursue direct acts of violence and expansion. Moreover, they now assert their entitlement to wield greater influence within the state, positioning themselves as representatives of its ultimate role of annexation and settlement.   

The fiction of two separate entities 

For decades, a narrative has been cultivated among Zionist liberals asserting that the occupation of the West Bank and Gaza Strip exists in isolation from democratic principles “at home.” In this narrative, settlements and ongoing colonization are considered minor flaws within an otherwise stable democratic system. This liberal Zionist rhetoric ignores the intricate connection between occupation and the state, determining the former as an exception and the latter as the rule. Nevertheless, Palestinian researchers have long argued against this fiction, arguing that the situation in historic Palestine must be understood as a multifaceted colonial system of domination within a single geography. Terms such as “apartheid” and “settler colonialism” have been used to describe this reality. 

In his latest book, Palestine: Matters of Truth and Justice (2022), Bishara argues that these frames are not contradictory; rather, they both offer valid explanations for aspects of the complex reality in Palestine. He highlights Israel’s particularity as a settler colonial state, where the nation’s establishment took place within the colonial context, and unlike some European cases of extractive colonialism where nation-building often preceded colonialism, albeit sometimes intersecting with it.

The case of Israel, as scholars have explained, is not a historical event, but rather an existing structure as colonization persists and colonial nation-building continues apace, with further expansion of Jewish sovereignty and the elimination of the indigenous population. This case is also different from most other settler colonial experiences, as the indigenous population has not, despite the continuous elimination processes, become a minority, and so the settler colonial state has failed to fully normalize itself. As Bishara argues, the colonial nature of the state is therefore manifest in all its forms of governance.

While the multifaceted system of domination in historic Palestine legally separates Israeli Jews and Arab Palestinians, subjecting them to unequal treatment, the ongoing expansion brings about geographical proximity between settlers and the indigenous population. In addition to the continuous manifestation of the state’s colonial nature, this geographical proximity blurs the lines between the “rule” and the exception, the militaristic and the civil, or the emergency and the stable. Consequently, maintaining a state of civil law and an exclusive democracy for Jews while imposing this perpetual state of emergency imposed upon the “territory” is merely a fiction that facts on the ground continue to challenge. In this context, the ongoing colonization in the West Bank and the Gaza Strip stops being a mere flaw within an otherwise true democracy; rather, it is a demonstration of the undemocratic nature of a settler colonial order. 

Izzeddin Araj is a Palestinian researcher, journalist, and Ph.D. candidate in anthropology at IHEID in Geneva, Switzerland