EssaysLiberal Democracy in Question

Hannah Arendt, Constitutionalism and the Problem of Israel/Palestine

The following was the keynote lecture at the XXVII Encuentro Internacional de Ciencias Sociales in Guadalajara, Mexico, December 5, 2013.

On October 3, 2013 the Supreme Court of Israel ruled that there is no Israeli identity, since there is “objectively” no Israeli ethnicity. The 21 litigants will have to continue having the designation “Jewish” in their official files (coded into their identity cards!), instead of “Israeli” as they desired. Against their own wish, they will not be able to share a common citizenship identity with Arab citizens of Israel, in a state that continues to be identified as that of an ethnicity, the Jewish people. Some of the consequences of that identification are well known. Thus, for example, if I wished to ask for Israeli citizenship and membership in the citizen body to which the state is said to belong, namely the Jewish millet, I would be able to do so, though I have never lived in Israel and practice no religion. Many who have lived all their lives in that country would not be able to do the same, unless they converted to Judaism. Even if married according to Islamic law, Arab citizens do not have the right to permanently settle their spouses in Israel. But even I would not be able to marry or divorce in Israel, unless I followed the rules, requirements and rituals of orthodox religious law. And I could not marry a non-Jew in any case.

As all those who have seen the film Hannah Arendt must realize, the great political theorist’s relationship to Israel was deeply ambivalent. She believed that the idea of the modern nation state with an ethnic definition of belonging was at the root of modern (as against traditional) anti-Semitism, and she strongly rejected the idea that its victims, the Jews, living together with another people, should establish such a state themselves. (The Jewish Writings p. 352) Moreover, to put the matter in her own concepts if not words, even if Israel’s formation was an act of liberation (whether from colonial rule or, more broadly, the European nation states) it was not followed by the constitution of freedom. The founders, as is well known, were unable to produce, as required by UN resolution of 1947 and the Israeli Declaration of Independence, a written constitution with equal fundamental rights for all then living in the territory. The constituent assembly elected also with Arab participation was converted into the first Knesset, whose simple majority chose to abandon the project of constitution making, in favor of basic laws that would be produced gradually, by ordinary parliaments. Arendt’s devastating critique of constitution making as acts of government instead of the mobilized and enlightened actions of “the people” themselves, deserves to be well known, however that difference between two approaches is to be understood procedurally.

There are three possible explanations of why Israel failed to produce an entrenched documentary constitution in 1948. The first (and best known) is currently represented by my former student Hannah Lerner, who argues that it was the impossibility of secular and religious actors to agree concerning fundamental rights and the relationship of religion and state. While the latter relations and in particular the surrender of family law to the Orthodox rabbinate were informally agreed upon by the religious Agudat Israel and the secular Mapai of Ben Gurion, in the status quo agreements of 1947, to formalize e.g. a “prohibition of intermarriage” in a written constitution would have been supposedly highly embarrassing and unacceptable at least to the secular side. This is the explanation accepted by Hannah Arendt (Eichman in Jerusalem p. 7), but is not the only relevant one. The second explanation focuses on the power interests of Ben Gurion himself. He was no different than other liberation leaders in the Anglophone colonial world, who believed that it was a Westminster type of parliamentary sovereignty, incompatible with entrenchment, fundamental rights and judicial review, that would give a dominant party and its leader the most power. While Nehru in the end gave way on this matter, probably because of the internal pluralism of his party, and agreed to a well entrenched constitution with strong table of rights and formally codified constitutional review, Ben Gurion, whose dominance over his party was greater than Nehru’s, did not. Finally, I believe there was also the problem of Arab-Jewish relations. Given the fundamental Zionist idea of a Jewish state, it was unacceptable to formally establish equal rights for all citizens, that in the future could perhaps lead to a state of two peoples, or one of all its citizens whatever their ethnic belonging.

The last motivation is the most important because it touches not only the inability to agree on a constitution, but the prior difficulty of constituting a democratic constituent power. It is not obvious in other words whether those participating in such power should be Jews in Israel, Jews and Arabs in Palestine, or Jews in and outside Israel whose state it is supposed to be. The fact that in 1948 a whole multitude was still waiting in displaced people’s camps to make the journey to Palestine was an important consideration for many of the founders of the state. This last consideration hardly applies today when relatively few seek to emigrate to Israel, yet it is reflected in the Supreme Court decision of October 3, this year, recognizing Jews rather than Israelis as the state’s relevant constituency.

It would not be difficult to combine the three explanations, since after all the actors responsible were many and they could have different interests and priorities. In any case the result still stands, in spite of the efforts of the Supreme Court in the 1990s, under Aharon Barak, to turn a couple of very weakly entrenched basic laws into the functional equivalent of a written constitution with rights in their center. Barak even attempted to provide a new interpretation of the definitional phrase “Jewish and democratic state” by arguing that “Jewish” could not contain any element of meaning that was not consistent with democracy. The October 3 decision, made by a court with very different members, reveals his failure, however brave the effort. What would be ordinarily regarded in democratic polities as the imputed constituent subject of a democratic constitution, the Israeli people, does not exist, according to the court. An actor admittedly has been put into its empty place, namely the Jewish people, but even if it existed it does not seem to have the will and the capability of becoming that subject any more than any other people essentially defined. Thus a formal, documentary, entrenched, and enforceable constitution still has to wait.

Hannah Arendt does not mention Israel even once in her important book on constitutions, On Revolution (1963), and mentions the failure of constitution making only once in Eichman in Jerusalem, published the same year, blaming the issue of religious law. She points out the “breathtaking … naivete” with which the prosecution in the Eichmann trial denounced the prohibition of intermarriage in the Nurnberg Laws of 1935. Yet even for the most courageous of 20th Century thinkers, that trial was apparently not the right time “to tell the Jews what was wrong with the laws and institutions of their own country” (p. 8) Is it too much of a stretch however to assume that her contemporary critique of constitutions produced by incumbent governments, without much legitimacy, applied even more to Israel than to European post World War states?

In fact, the very sentence just quoted indicates, that performatively, Arendt was less hesitant than the journalists she mentions to tell Israelis what was wrong with their country. She did much more then that in the 1940s in terms of predictions and proposals. After some involvement in Zionist circles and their politics in the 1930s, in the 40s she became a determined critic of both labor Zionist and Revisionist visions for the future. Her first critique of the Zionists as early as in 1937-8 was complex, but its focus was on an substantialization or essentialization of the Jewish people, on the one hand, and the absence of an autonomous politics based on independence from other powers and with clearly defined friend enemy relations. Later, she implied that Zionism was to make-up for its lack of politics in the 40s, but if anything intensifying the essentialism based on a German inspired rather than French political form of nationalism. (The Jewish Writings pp. 366-367) Arendt regarded the nation state as an obsolete and endangered form that would be replaced by larger units, empires or federations. Only the latter would allow the survival and flourishing of small people like the Jews. (The Jewish Writings p. 371) Yet, according to her provocative thesis it was the program of the revisionists, who were in her view close to being neo-fascists, that was in the end adopted by the whole movement and above all Ben Gurion in the project of a sovereign Jewish ethno-national state. (see piece on Begin in The Jewish Writings p. 417ff and “Zionism Reconsidered” in The Jewish Writings p. 343ff; 351)

Arendt did not wish to easily submit to this outcome; passivity was not a part of her character. Close to Judah Magnes, after first initially opposing him, Arendt went on to propose an Arab Jewish confederation in Palestine, a variant of his idea of a bi-national state included in a larger federation of Middle East. (J. Magnes “Toward Peace in Palestine” in Foreign Affairs, 1943; The Jewish Writings p. 336, 400, 441, 446) She was to call Magnes the “conscience of the Jewish people” (p. 451ff) and she always shared his abhorrence of the absurd notion of a people without land searching for, later actually being in a land supposedly without people. Only the moon is a place without people, she repeatedly wrote. But there were two main features of Magnes 1943 proposal of bi-nationalism in a federation of Ottoman successor states that she strongly opposed. Within the bi-national Palestinian state Jews would be a large minority at best, and within the federation as a whole a small one. This would make the Jewish status one of a vulnerable minority within an “Arab empire”. Secondly, to avoid violation of minority rights, Magnes sought to establish Anglo-American alliance guarantees. Such protection by imperialist powers, resembling the similar role of absolutist princes, would make the Jewish minority their client and agent, a terrible status in a world where she anticipated de-colonization. This idea of the bi-national state to Arendt destroyed the meaning of federation, that was supposed to be made up of “different people with equal rights.” (p. 336) It retained according to her the homogenizing and exclusionary logic of the nation state, that made the so-called minority problem impossible to solve on the bases of equality.

When she partially revised her opinion with respect to the Magnes scheme, her conception of a confederation, replacing bi-nationalism, represented an attempt to save the core principle of federation. It was also a transposition to Arabs and Jews an earlier notion where a non-territorial Jewish people would be a member of the European federation. It was not clear how that idea would work without falling into rigid consociationalism as in Lebanon. She was however happy, if prematurely so, in discovering the idea of a confederation with Jerusalem as its common capital among Jewish, Arab and UN proposals in 1948. (p. 408ff.; 446-7) The idea was in any case free of all Eurocentrism even as she continued to strongly support a federalization of Europe itself, on political rather than economic grounds. (J. Butler review, Compare The Jewish Writings p. 129-131 vs. 447, 450) Once in the United States (after 1941) she came to be even more impressed by the federal idea, that she partially misunderstood as one bringing together distinct and differentiated peoples that nevertheless defined their citizenship in purely political rather than ethnic or national terms. The same federal idea was to be central to both her constitutional proposal, and for the thesis of On Revolution, but of course nothing could be further from it than the unitary state form resembling the Westminster model established by the founders of Israel. If this state was created in a French way resembling the making of the third republic, it was in one fundamental respect different than English and French nation states. Israel’s founders envisaged an “essentialist” ethno-religious rather than a political identity, thus a form of state power limited by religious law in the form an inheritence from the Ottoman era preserved by the British Mandate, the millet system. (cf. Yuksel Sezgin The Israeli Millet system) Hannah Arendt rejected this form of self-definition and self-limitation.

If her encounter with Zionism, helped deepen Arendt’s critique of the nation state so sharp in The Origins of Totalitarianism (1950: on Israel, p. 290, 299), and develop her notion of federalism central to On Revolution, these works remain highly relevant to the problem of Israeli state and constitution at least in a diagnostic sense. If Israel plays no role in the second of these works, and the constitution is only once mentioned in Eichmann, it may have been because by the early 60s she was no longer confident in being able to propose a solution to constitutional problems of this state, already established. She hated to engage in the production of abstract, politically irrelevant utopias. Yet, I believe that the theory of On Revolution, deeply linked to U.S. American solutions and the concept of “revolution” bears some of the burden for the omission. After briefly reviewing this theory, I will try to show that earlier, she did possess concepts that would still be essential for the just solution of the now historical conflict. On these, a missing chapter of On Revolution, one on Israel, could have been based.

In the classical doctrine, whether biblical or republican, the foundation of the new polity presupposes violence generally by a prophet or a political law-giver. Hannah Arendt is deeply disturbed by this assumption, and seeks to go beyond the role of dictating violence with two distinctions. The first is between liberation and constitution, that she saw as two dimensions of a revolutionary process. Where liberation could be and generally was violent, constitution, if it was to be successful, had to be the act of a plurality of actors persuading one another, and making binding promises regarding the future. The second distinction was between the United States and France, where the first succeeded at producing a stable constitution guaranteeing at least constitutionally limited government and the second failed. Ultimately at bottom of this difference were according to her two different conceptions of the constituent power. In the case of the U.S., whether in the states or the Union, the constituent power was already constituted as the power of small republics, whether townships or states. In France, the constituent power of the people or the nation was understood to be in the state of nature, limited by no rules or pre-existing procedures. It was this doctrine that allowed French political agents, whether the Assemblee constituant, the Convention nationale or one man, stepping into the empty place of the sacralized king, to engage in constitution making by government entities that could produce no legitimacy or stability. Arguably the first and all subsequent Israeli Knessets too occupied that place, even if the task of producing a unified documentary constitution has never been resumed. None of the 11 basic laws, including the ones relied on by Justice Barak, nor their 3 revisions, were produced through a wider, more participatory constituent process (Justice M. Cheshin United Mizrahi decision, who imagines this in classical European terms of an extraordinary constituent assembly). After liberation from colonialism, Israel thus chose a generically French path rather than the federal American one, quite contrary to what Judah Magnes and Hannah Arendt among others proposed.

The American path would have meant not only federation in two senses, process and outcome, but also the establishment of an entrenched, enforceable written constitution with a strong table of fundamental rights. Israel was not alone in disregarding the American paradigm. While some of its substantive aspects have been incredibly influential, it is fair to say that the procedures of its first emergence were never successfully adopted elsewhere. The latter involved the making of the constitution in several stages where none of the actors usurp the imputed popular sovereignty of the people, a process in which the drafting assembly possesses no other power than to recommend a constitution to other instances. As Condorcet and Sieyes realized at the time of the French Revolution already, the historical preconditions stressed by Arendt for an already constituted pouvoir constituant, namely small self-governing republics did not exist in France. But even where such bodies did exist, as in many countries of Latin America, they could not play the role assigned to them by Arendt. We can see the reason in the chapter of On Revolution (chapter 6) where she seeks to overcome “American exceptionalism.” I have in mind her famous theory of councils and soviets that she proposes as the alternative to modern political parties produced by modern revolutions. As inspiring her inaccurate history of these political bodies may be, she has to implicitly admit that direct democratic councils, whether in France, Russia or Hungary could not complete a revolution that she defined not merely as the exercise, but also as the institutionalization of public freedom, namely a constitution. Many years before, anticipating her later theory of the “tragedy” of direct democratic councils, she had to admit the same failure for the kibbutzim in Palestine. Bracketing reservations concerning their apolitical and even authoritarian aspects she saw these as the only creative force that was ideologically predisposed to institute either a bi-national state or a confederation of two peoples, but she was forced to see the political weakness of grassroots self government when opposed to the modern party movement, especially given their self imposed “abstention from politics.” (Young-Bruehl Hannah Arendt p. 97, 139 vs. p. 229; The Jewish Writings p. 395; 348-9)

What she did not realize then or later is that it was precisely the setting of a revolutionary rupture, or in her language the violence of liberation, that greatly privileged a disciplined party organization such as Lenin’s against loose democratic organizations that tended to define politics primarily in the local sense. Tocqueville whom she greatly admired did realize, and understood the political vacuum produced by revolution as the birthplace of a new authoritarian alternative. She unfortunately did not fully understand his complex explanation of American exceptionalism in constitutional development, that among its main components relied on the concept of “revolutionary results without having had a revolution”.

Fortunately, Arendt’s proposal for a confederation of two peoples within a larger federation, genetically related to her conception in On Revolution, does not stand or fall with her direct democratic or radical republican theory of agency. Yet a confederation or federation does require agents capable of federating. If the confederation is to be democratic or republican, the agents that produce it must be themselves democratic or republican, or at least strongly attached to an outcome based on free democratic competition under constitutional restraints. Because of the long history of omissions of British imperialism, as Arendt knew so well, such agents were missing on both Jewish and Arab side. While Arendt claims that the Jewish Yishuv was an effective proto-state primarily of the Histadrut (The Jewish Writings p. 436-437) it was a top down, bureaucratic organization capable of producing effective military force, without any democratic experience. Admittedly, the UN Resolution of 1947 ending the British mandate aimed at the creation of two states based on democratic competition, and equal rights under constitutions. Yet, the incredible rapidity of the British departure left no time for such entities to organize themselves. The horrors of the Indian partition had a similar cause, with the difference that Indian political actors by then had long political experience and were well organized. Such political experience was missing in Palestine on both sides. This is why Hannah Arendt rather reluctantly joined Magnes in supporting the failed plan for a temporary UN trusteeship, in an uncommonly tough essay condemning the increased influence of Jewish terrorism, aiming to expel Arabs and to make negotiations between the two people’s impossible. (“To Save a Jewish Homeland,” 1948. The Jewish Writings p. 397-400) In any case, the leaving of the British created the kind of power vacuum Tocqueville noted characteristic of modern revolutions. If it was a liberation, there were two subjects of liberation capable of entering into the space of power, with mutually incompatible claims as Arendt noted following Magnes. We know the outcome. On the Jewish side, those representing the claims of a modern ethno-national state easily defeated small groups representing views such as Arendt’s, at the same time that they militarily triumphed over Arab actors making similar exclusionary claims. Given British supports for at least some of the Arab forces, the process could be still be represented as liberation by Jews, even as it became al Nakhba, the catastrophe, to Arab Palestinians. But it decisively failed as a process of constitution, and that brings us back to today, when there is neither a constitution nor constitutionalism for either Israel of the original armistice lines, or for what has been called the Israeli control system, that includes now also the West Bank.

After the Israeli state was established, but before she saw the need to rehabilitate the concept of revolution, in “Peace or Armistice in the Near East?” (1950) dedicated to the memory of Judah Magnes, Arendt began the essay with the following lines:

Peace, as distinguished from an armistice, cannot be imposed by the outside; it can only be the result of negotiations, of mutual compromise., and eventual agreement between Jews and Arabs. … A good peace is usually the result of negotiation and compromise, not necessarily a program. (The Jewish Writings p. 423; 427)

I leave to the side that today we would say Israelis and Palestinians, instead of Jews and Arabs. The lines retain their validity. Once President Sadat made his trip to Jerusalem in 1978, in spite of the fact that promises regarding the Palestinians were not kept by Israel, there have been serious negotiations among the parties, Israelis and Palestinians. At one time at least, at Taba in 2001, they came close to success, vitiated by the closeness of Israeli elections. Today, talks have been restarted, but the chances of an agreement seem to be slim in the face of obvious sabotage by the settler dominated present Israeli government, indicated by the continued building of settlements that tend to destroy or transform the very object of negotiation, and potentially by Hamas that has been left outside, though it controls Gaza with the allegiance of many in the West Bank. Yet there is no alternative to these negotiations except, as Hannah Arendt knew as well, renewed violence that leads nowhere.

But what are these negotiations to be about, and how are they to be conducted? The parties to the extent they think they are negotiating only over territory, and control over people, cannot be right. They are also negotiating over a constitution or constitutions. Whether the result is supposed to be one state or two states, any possible entity emerging will still be a deeply divided society on ethnic as well as religious grounds. Such societies need written, relatively rigid, enforceable constitutions more than all others. Moreover peace between any new entities, the survival and even deepening of a modus vivendi, the adherence to solemn promises made during the negotiations will depend on both constitutional and international law arrangements that need to be codified along with plausible enforcement. It would be futile to make an agreement concerning state structures without providing at least the main principles for regime forms.

Of course the problem of state structure has to have priority. At the moment it is quite unclear whether the result of the negotiations in the end will be two states or one as many on both Israeli right and left think inevitable, and it is not up to outsiders to make this choice. They can however point out that the same problem would exist for either option, because it will not be possible nor desirable to create ethnically homogeneous states either way. Here Hannah Arendt remains a good guide, and helps us see once again that the choice of a nation state entails the next bad choice between second-class citizenship or expulsion. (The Jewish Writings p. 343-344, 347, 352) Even outsiders can point out furthermore, as Magnes and Arendt did, that there are options that can avoid such a bad choice, ranging from bi-nationalism to consociationalism, or even a confederation not entirely based on territory but also political organization. It is not up to us to decide whether poltical or economic integration of new units should come first, but we can point out that both would be needed for either to be stable and lasting.

It is true that if outsiders came up with concrete and detailed plans, they would wind up only repeating Arendt’s own demonstrable contradictions in these matters, and her frequent change of perspectives that was a function of the rapidly changing context on the ground. In the end she did warn about being attached to plans, and formulae, instead of focusing on genuine negotiations. (The Jewish Writings p. 427) Yet, can the actors do without at least the outline of a plan that would make coming to an agreement attractive to both sides? It can perhaps be said, that the idea common to Magnes and Arendt, of a confederation or federation within a larger confederation or federation, remains normatively the most promising one for Israel/ Palestine and its region. Whatever its troubles today, the EU composed of former violent enemies does indicate that structures such as these are possible. The possibility of a federal Europe was an important part of Arendt’s vision in the 1940s. However mistaken she was about the potentially federal nature of the British Commonwealth (too weak once empire was gone), the federalism of the U.S. (not based on a union of distinct peoples) and the Soviet Union (integrated through one party rule, rather than voluntary union), the example of Europe, then only a dream but today widely imitated shows that she was potentially right. Might this example not be attractive not only to Israelis and Palestinians, but also the other states of the region today each replete with the minority problems she associated with the nation state?

Can there be an international political role in achieving the desired end? Hannah Arendt as a previous quotation indicates believed in federation as autonomous product only of those who seek to federate. Yet, even with the British omissions of the Mandate in her clear memory, she was willing to accept a temporary trusteeship for Palestine, in order to reduce antagonism, and to enable actors capable of fair negotiations to emerge and to develop. (The Jewish Writings p. 399-400) Even the forming of the European Union occurred under the defense umbrella of primarily the United States. For Israel/Palestine the issue however is different. While the Palestinians have lost their Soviet sponsor, with only very tenuous replacements, Israel is indeed under an American umbrella of protection. One of Hannah Arendt’s main criticisms of Zionism has aimed at the desire, inherited form the older assimilationist trend in Judaism, to be under the protection of some “big brother”, first the Ottomans, then Great Britain, with America next, and for a time the Soviet Union, before America’s protective role was settled on after the Suez fiasco of 1956. (ibid. 392 and elsewhere) This is why she insisted on the autonomous agreement only of the parties themselves, representing the peoples of Palestine and Israel. Yet might not the removal of the protective umbrella have the same effect as a trusteeship? Or, instead of the protective umbrella, should not soft power be applied to both sides, to facilitate the making of a just and equitable solution, whose terms should emerge from the parties themselves.

Are these parties and their representatives capable of coming to any serious agreement? Toward the end of his life, Edward Said, whose views in many respects resemble those of Hannah Arendt, became a strong critic of attempts at Palestinian liberation relying on terror. Arendt too was an uncompromising critic of Jewish terrorism. But Said was fortunate enough to live in a period in which a new method linking peace and constitution making emerged. He was highly impressed by the post revolutionary effort in South Africa to devise a democratic system based on equality through negotiations between former enemies who thereby became political opponents. If this was possible in South Africa given the heritage of apartheid, it must also be possible in Israel/Palestine he thought. I think he was right, even if he misunderstood the negotiated many stage character of this process in South Africa. In particular he was in my view deeply mistaken in rejecting negotiations on the Oslo pattern. He of course may have been right that only new actors are capable, I would say on both sides, of acting in an entirely new manner. Yet, still under the influence of populist idea of constitution making Said believed that the key new actor must be the Palestinian people who could generate new institutions from below through an elected constituent assembly. But the Palestinian people is no less an essentialist abstraction than the Jewish people. It is unclear for example whether the constitution making task Said had in mind was based on the constituent power of only people in the West bank, or if he meant to include Arab citizens of Israel, and also Palestinian exiles. (From Oslo to Iraq and the Road Map: Essays, 2004 p. 48-49, 186-187, 192)

Originally Hannah Arendt too seemed to believe in a unitary people constituted by Schmittian friend –enemy relations, that she at one time saw as the meaning of the political. Precisely as a result her brave confrontation with the Arab – Jewish conflict, she came to understand that politics could not be based on essentialized friend enemy relations without self contradiction, and the major political task was the mutual persuasion of former enemies to become opponents in a pluralistic field. (compare The Jewish Writings p. 56-57 vs. 351, 359) A historical compromise producing a federation or confederation, especially one within a larger federal entity can be the work only of many actors, within each people, and across a series of negotiating tables. This is the lesson of the recent transitions to democracy, that inspired Edward Said, as it should inspire us.

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