Growing a Constitution: Reconciling Liberty and Community in Israel and the United States

Donna E. Arzt

doi:10.1111/j.1747-4469.1994.tb00402.x

1 Exodus 18:14–27. Noted by Albert Blaustein, “Contemporary Trends in Constitution-Writing,” in Daniel J. Elazar, ed., Constitutionalism: The Israeli and American Experiences 171 (Lanham, Md.: University Press of America, 1990) (“Elazar, Constitutionalism”).Google Scholar

2 Jacobsohn is Woodrow Wilson Professor of Government in the Political Science Department at Williams College. His earlier writings include Pragmatism, Statesmanship, and the Supreme Court (Ithaca, N.Y.: Cornell University Press, 1977) and The Supreme Court and the Decline of Constitutional Aspiration (Totowa, N.J.: Rowman & Littlefield, 1986).Google Scholar

3 Sharfman has taught in the Women's Studies and Political Science departments of Haifa University and is the chair of the Civil Rights Committee of the Israel Labor Party. She has also written Women and Politics in Israel (1988) (Hebrew).Google Scholar

4 “A word fitly spoken is like apples of gold in pictures of silver.” Proverbs 25:11. The image of golden apples appears in other sources not mentioned by Jacobsohn: “The golden Apple, cause of all their wrong …” Edmund Spenser, The Faerie Queene, book IV, canto I, verse 22. Spenser alludes to the Judgment of Paris, in which he bestowed the coveted apple on Aphrodite rather than on Hera or Athena in The Iliad. See Mihoko Suzuki, Metamorphoses of Helen: Authority, Difference, and the Epic 32, 201 (Ithaca, N.Y.: Cornell University Press, 1989). See also A. S. Byatt, Possession: A Romance 6 (New York: Random House, 1990) (“Ears of grain were called apples of gold”).Google Scholar

5 Roy Basler, ed., 4 The Collected Works of Abraham Lincoln 169 (New Brunswick, N.J.: Rutgers University Press, 1953), discussed by Jacobsohn at 3–4, 246–47. Although no Lincoln speech using these phrases has been found, the fragment may have been written shortly before the First Inaugural Address. Id. at 246.Google Scholar

6 Ariel Bin-Nun, The Law of the State of Israel: An Introduction 22–27, 155 (Jerusalem: Rubin Mass, 1990). See Izhak England, Religious Law in the Israel Legal System (Jerusalem: Alpha Press, 1975); Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 7 Laws of the State of Israel (“L.S.I.”) 139 (1953). There are also Muslim, Christian, and Druze religious courts with jurisdiction over members of their own communities. This system of dividing the population into religious communities stems from Ottoman law, as extended by British Mandate legislation. Bin-Nun at 23. See Menashe Shava, “Matters of Personal Status of Israeli Citizens not Belonging to a Recognized Religious Community”, 11 Israel Y.B. Hum. Rts. 238 (1981).Google Scholar

7 For the constitutional comparativist who does not read Hebrew, numerous Israeli law sources are available in English. See, e.g., the translations of all parliamentary legislation, Laws of the State of Israel, and of important Supreme Court decisions, Selected Judgments of the Supreme Court of Israel, both published by the Israel Ministry of Justice. Certain Supreme Court decisions are summarized in the English-language Israel Yearbook on Human Rights, published by Tel Aviv University Faculty of Law; occasionally in Asher Felix Landau's law column in the Jerusalem Post (available on Nexis); and in the Israel Law Review, published by Hebrew University. Useful bibliographies include the Institute for Legislative Research and Comparative Law's Bibliography of Israel Law in European Languages (updated periodically); Pnina Lahav & Phyllis Blaustein, “Israel” in Albert P. Blaustein & Gisbert H. Flanz, ed., Constitutions of the Countries of he World (Dobbs Ferry, N.Y.: Oceana Publications, updated periodically) (“Lahav & Blaustein, ‘Israel’”), which includes a chronology of constitutional history as well as a bibliography; Andrezej Rapaczynski, “Bibliographical Essay: Influence of the U.S. Constitution Abroad,” in Louis Henkin & Albert Rosenthal, Constitutionalism and Rights: The Influence of the United States Constitution Abroad 406 (New York: Columbia University Press, 1990) (“Rapaczynski, ‘Bibliographical Essay”’); and Gregory S. Mahler, Bibliography of Israeli Politics (Boulder, Col.: Westview Press, 1985). The major treatise, Amnon Rubinstein, The Constitutional Law of the State of Israel (3d ed. Jerusalem & Tel Aviv: Schocken, 1980), has unfortunately not been translated into English.Google Scholar

8 In 1972, the obligation of Israeli judges to apply English law in matters of interpretation was removed by the Law and Administration Ordinance (Amendment No. 14) Law, 26 L.S.I. 52. This was followed in 1980 by the Foundations of Law Act, which reads in pertinent part: “Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel's heritage.” 34 L.S.I. 181.Google Scholar

9 From the beginning, the religious parties opposed a constitution, fearing it would reject the establishment of religion and arguing that the Torah is Israel's constitution. See Donna E. Arzt, “Religious Freedom in a Religious State: The Case of Israel in Comparative Constitutional Perspective,” 9 Wis. Int'l L.J. 1, 16–22 (1990). See generally Ruth Gavison, “The Controversy over Israel's Bill of Rights,” 15 Israel Y.B. Hum. Rts. 113 (1985); Emanuel Rackman, Israel's Emerging Constitution, 1948–1951 (New York: Columbia University Press, 1955); Nathan Yanai, “Politics and Constitution-Making in Israel: Ben-Gurion's Position in the Constitutional Debate Following the Foundation of the State,” in Elazar, Constitutionalism 101. On whether the Knesset breached a legal duty in not promulgating a Constitution, see Haim Deutch, “The ‘Legal Duty’ Argument in the Israeli Debate over a Constitution,” 4 Temple Int'l & Comp. L.J. 239 (1990).Google Scholar

10 Basic Law: The Knesset, 12 L.S.I. 85 (1958); Basic Law: The Government, 22 L.S.I. 257 (1968); Basic Law: The Army, 30 L.S.I. 150 (1976); Basic Law: Jerusalem, Capital of Israel, 34 L.S.I. 209 (1980). See also note 16 on recently promulgated Basic Laws. Other laws of constitutional import include the Law and Administration Ordinance, 1 L.S.I. 7 (1948), and the Law of Return, 4 L.S.I. 114 (1950). Because of this piecemeal approach to creating the governmental structure of the state, every Knesset potentially doubles as the Constituent Assembly. In addition to L.S.I., the Basic Laws are found in translation in Lahav & Blaustein, “Israel,” and Elazar, Constitutionalism 219–62.Google Scholar

11 Nazi hunter Simon Wiesenthal said, “As a Jew I am proud of the way the Supreme Court handled the case.” Stephen Labaton, “U.S. Vows to Close Doors to Demjanjuk,” N.Y. Times, 30 July 1993, at A8, col. 4. Anti-Defamation League director Abraham Foxman concurred: “There's pride that Israel could deliver justice, tempered with mercy, rather than vengeance. It is a very poignant message.” Clyde Haberman, “A Mixed Verdict,” N.Y. Times, 30 July 1993, at A8, cot. 1. Tel Aviv University Law School's former dean, Amos Shapira, also said: “One can hardly imagine a harder case, in the Israeli and Jewish context, than this one. Israel's Supreme Court passed this enormous test with dignity and courage.” Evelyn Gordon, “Justices: The Case ls Closed, but Incomplete,” Jerusalem Post, 30 July 1993 (available in Lexis/Nexis, Jpost file). And Israeli legal commentator Moshe Negbi points out: “By allowing even an alleged mass murderer to benefit from [the principle of reasonable] doubt, the court followed democratic tradition and Jewish tradition. As one of the justices, Menachem Elon, quoted Maimonides: ‘It is better and more desirable to acquit a hundred thousand sinners than to kill one innocent man.’” Moshe Negbi, “A Badge of Honor,” Jerusalem Rep., 26 Aug. 1993, at 12. See also Alex Kozinski, “Sanhedrin II: The Case of Ivan Demjanjuk,” New Republic, 13 Sept. 1993, at 16.Google Scholar

12 Basic Law: The Judicature, 38 L.S.I. 101 (1984), sec. 15(c).Google Scholar

13 Bergman v. Minister of Finance and State Comptroller, 23(1) P.D. 693 (1969), translated in 4 Israel L. Rev. 559 (1969).Google Scholar

14 Dweikat v. Government of Israel (“Elon Moreh”), 34 (1) P.D. 1 (1979).Google Scholar

15 Million, Elmer M. & Katz, Arthur S., “Provisions on Religious Freedom in Draft Israeli Constitution: A Comparative Study,” 24 N.Y.U. L. Rev. 846 (1949); Sager, Samuel, “Israel's Dilatory Constitution,” 24 Am. J. Comp. L. 88 (1976); Note, “Restructuring a Democracy: An Analysis of the New Proposed Constitution for Israel,” 22 Cornell Int'l L.J. 115 (1989); Cantor, Norman L., “Religion and State in Israel and the United States,” 8 Tel Aviv U. Stud. L. 185, 217–18 (1988); Susser, Baruch, “A Proposed Constitution for Israel,”in Elazar, Constitutionalism 179 (cited in note 1). The 1987 draft is included in Lahav & Blaustein, “Israel” (cited in note 6). Sharfrnan at 163–72 reprints two newly proposed Basic Laws on human rights.Google Scholar

16 English translations of the two new Basic Laws were published by the American-Israeli Civil Liberties Coalition in its Winter 1992 newsletter. See also Leslie Susser, “We the People,” Jerusalem Rep., 5 Nov. 1992, at 14.Google Scholar

17 Susser, Jerusalem Rep., and Eyal Arad, “A Most Delicate Balance,” Jerusalem Post, 3 Jan. 1993 (available in Lexis/Nexis, Jpost file).Google Scholar

18 Arad, Jerusalem Post. The cited poll also reports that 58% of religious respondents (undefined) favor passage.Google Scholar

19 Serge Schemann, “Russia Sets out on a Pitted Road to a New Constitution,” N.Y. Tmes, 6 June 1993, at E5, col. 1, quoting Andrei M. Makarov. Ben-Gurion had similarly argued that the drafting of a constitution should be preceded by the “Ingathering of the Exiles” (Jacobsohn at 102), a process that is still continuing today. But as a visiting French jurist once told his Israeli hosts: “Your problem is not that you are trying to adopt a constitution, but that you already have one and are trying to change it.” Jacobsohn at 99. Jacobsohn also quotes Felix Frankfurter's advice to Israel: “Never write a constitution. What you need are independent judges, not a written constitution.” Characteristically, Hugo Black gave contrary counsel: “Make a constitution immediately, and make it so stringent that no Supreme Court can evade it.” Jacobsohn at 95.Google Scholar

20 U.S. (1 Cranch.) 137 (1803).Google Scholar

21 US. 486 (1969).Google Scholar

22 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).Google Scholar

23 Continental Divide: The Values and Institutions of the United States and Canada xiii (New York: Routledge, 1990), quoted by Jacobsohn at 229.Google Scholar

24 Tedeschi, Guido, “On Reception and on the Legislative Policy of Israel,” 16 Scripta Hierosolymitana 11, 12 (1966), quoted by Jacobsohn at 53. This latter point is needlessly self-deprecating and, to the extent true in 1966, probably on the wane since the enactment of the Foundation of Law Act in 1980. See note 8 supra.Google Scholar

25 Alan Watson, Society and Legal Change 110 (Edinburgh: Scottish Academic Press, 1977). See also id. at 98–105; Alan Watson, “Legal Transplants and Law Reform,” 92 Law Q. Rev. 79 (1976); Otto Kahn-Freund, “On Uses and Misuses of Comparative Law,” 37 Mod. L. Rev. 1 (1974); and Eric Stein, “Uses, Misuses—and Nonuses of Comparative Law,” 72 Nw. U.L. Rev. 198 (1977), summarizing and analyzing the debate between Kahn-Freund and Watson.Google Scholar

26 Lahav, Pnina, “American Influence on Israel's Jurisprudence of Free Speech,” 9 Hastings Const. L.Q. 21 (1981); Barak, Aharon, “Freedom of Speech in Israel: The Impact of the American Constitution,” 8 Tel Aviv U. Stud. L. 241 (1988). See also Rapaczynski, , “Bibliographical Essay” at 453–59 (cited in note 7); Appelbom, A. M., “Common Law a L'Americaine,” 1 Israel L. Rev. 562 (1966); Gorney, Uriel, “American Precedent in the Supreme Court of Israel,” 68 Harv. L. Rev. 1194 (1955). Transplantation in the reverse direction is virtually nonexistent. The U.S. Supreme Court has apparently cited its Israeli counterpart only once, in a Warsaw Convention decision, Eastem Airlines v. Floyd, 499 US. 530, 111 S. Ct. 1489, 1501–2 (1991). Of course, aspects of American constitutionalism can be traced back to Jewish law. See Konvitz, Milton R., Judaism and the American Idea (Ithaca, N.Y.: Cornell University Press, 1978) (“Konvitz, Judaism”); and Caine, Burton, “U.S. Constitution Has Roots in Jewish Legal System,”Jewish World, 17–23 July 1987, at 5. With international terrorism now reaching U.S. shores, Americans may have even more to learn from Israeli law.Google Scholar

27 For instance, Yadin Kaufmann, the former clerk who translated Barak's Judicial Disccretian (see note 34), is a graduate of Harvard Law School. Another former Barak clerk, Joshua Schoffman, attended Hebrew University School of Law after growing up in the United States and graduating from Brandeis University. Schoffman is now the legal director of the Association for Civil Rights in Israel. Kaufmann practices in a firm in Tel Aviv.Google Scholar

28 See Konvin, Judaism 18.Google Scholar

29 David Potter, People of Plenty: Economic Abundance and the American Character (Chicago: University of Chicago Press, 1954). In contrast, see, e.g., Michael Wolffsohn, Israel: Polity, Society and Economy, 1882–1986 (Atlantic Highlands, N.J.: Humanities Press International. 1987) (“Wolffsohn, Israel”); Nadav Safran, Israel: The Embattled Ally (Cambridge, Mass.: Harvard University Press, Belknap Press, 1981).Google Scholar

30 Arzt, , 9 Wis. Int'l L.J. at 15 n.35 & passim (cited in note 9).Google Scholar

31 Compare Pnina Lahav, “A Barrel without Hoops: The Impact of Counterterrorism on Israel's Legal Culture,” 10 Cardozo L. Rev. 529 (1988), which reaches a conclusion similar to Sharfinan's, a call to “fasten hoops around the barrel,” through a thorough analysis of judicial and extrajudicial developments in the 1984 case of the summary execution of Palestinian bus hijackers and its coverup. See also the various essays on Israeli law in Shimon Shetreet, ed., Free Speech and National Security (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991).Google Scholar

32 See, e.g., Edward Luttwak & Dan Horowitz, The Israeli Army (New York: Harper & Row, 1975); Maurice Roumani, “From Immigrant to Citizen: The Contribution of the Army in Israel to National Integration: The Case of Oriental Jews,” 9 Plural Societies 1 (1978); Nira Yuval-Davis, “Front and Rear: The Sexual Division of Labor in the Israeli Army,” 11 Feminist Stud. 649 (1985).Google Scholar

33 Israeli Justice Haim Cohn (when he was Attorney General) and American Justices Hugo Black and Felix Frankfurter were in the same room together. See supra note 19.Google Scholar

34 Likhovski, Eliahu, “The Courts and the Legislative Supremacy of the Knesset,” 3 Israel L. Rev. 345 (1968); Zimmer, Melvin B., “The Uses of Judicial Review in Israel's Quest for a Constitution,” 70 Colum. L. Rev. 1217 (1970); Kretzmer, David, “Judicial Review of Knesset Decisions,” 8 Tel Aviv Stud. L. 95 (1988); Shapira, Amos, “Judicial Review without a Constitution: The Israeli Paradox,” 56 Temple L.Q. 405 (1983); and Barak, Aharon, Judicial Discretion (New Haven, Conn.: Yale University Press, 1989). The major work in this area of comparative law, Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989), does not discuss Israel.Google Scholar

35 Burt, Robert A., “Inventing Judicial Review: Israel and America,” 10 Cardozo L. Rev. 2013 (1989).Google Scholar

36 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).Google Scholar

37 42(2) P.D. 221 (1988), translated in 8 Selected Judgments of the State of Israel 186 (1992).Google Scholar

38 P.D. 309 (1988).Google Scholar

39 See David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, Col.: Westview Press, 1990); David K. Shipler, Arab and Jew: Wounded Spirits in a Promised Land (New York: Times Books, 1986); David Grossman, Sleeping on a Wire: Conversations with Palestinians in Israel (New York: Farrar, Straw & Giroux, 1993). A less charitable view is John Quigley's Palestine and Israel: A Challenge to Justice (Durham, N.C.: Duke University Press, 1990).Google Scholar

40 US. 483 (1954).Google Scholar

41 Like that of most indigenous peoples, the history, culture, lineage, ethnicity, and religion of Jews are intertwined. The following statement could also easily be made about Jews:. It must be recognized that indigenous populations have their own identity rooted in historical factors which outweigh the phenomena of mere solidarity in the face of discrimination and exploitation, and that, by virtue of their very existence, they have a natural and original right to live freely on their own land. Martinez Cobo, Special Rapporteur, Study of the Problem of Discrimination against Indigenous Populations, par. 578, U.N. Doc. E/CN. 4/Sub. 2/1983/21/Add. 81, quoted by Mary Ellen Turpel, “Indigenous Peoples' Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition,” 25 Cornell Int'l L.J. 579, 579 (1992). As Felix Cohen wrote, “We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the Russian Czars and Hitler's Germany.” Felix S. Cohen, The Legal Conscience 313 (New Haven, Conn.: Yale University Press, 1960), quoted in James E. Falkowski, Indian Law/Race Law: A Five-Hundred-Year History vii (New York: Praeger, 1992).Google Scholar

42 On the law of the territories, see, e.g., Esther R. Cohen, Human Rights in the Israel occupied Territories, 1967–1982 (Manchester: Manchester University Press, 1985); Raja Shehadeh, Occupier's Law: Israel and the West Bank (Washington, D.C.: Institute for Palestine Studies, 1985). While not a legal commentator, Bernard Avishai has written, like Jacobsohn, about the inherent tensions in the conception of Israel as both a Jewish and a democratic state without neglecting the central questions of the West Bank and Israel's internal Arab population. Bernard Avishai, The Tragedy of Zionism: Revolution and Democracy in the Land of Israel (New York: Farrar, Straus & Giroux, 1985); Bernard Avishai, A New Israel: Democracy in Crisis, 1973–1988 (New York: Ticknor & Fields, 1990).Google Scholar

43 Jacobsohn compares the cases of Meir Kahane and Frank Collin, the American Nazi in the 1978 Skokie case (at 177 et seq.). The decision in R.A.V. v. City of St. Paul, — U.S. —, 112 S. Ct. 2538 (1992), striking down a municipal bias-motivated crime ordinance, came down in time to be mentioned only in Jacobsohn's Afterword. This past term's Wisconsin v. Mitchell, — U.S. —, 113 S. Ct. 2194 (1993), in which the Supreme Court upheld a state statute enhancing penalties for crimes where victims are selected on racial and other prohibited grounds, might require some revision of Jacobsohn's chap. 6, where he assumes that the American rule is absolutely libertarian.Google Scholar

44 Trakman, Leon E., “Group Rights: A Canadian Perspective,” 24 N.Y.U.J. Int'l L. & Pol. 1579 (1992).Google Scholar

45 Criminal Code Ordinance, sec. 149 (1936). See also art. 7, sec. 173 of the Penal Law of 1977, Special Volume, Penal Law, L.S.I. 55, criminalizing acts that offend religious sentiment.Google Scholar

46 Klein, Claude, “The Defense of the State and the Democratic Regime in the Supreme Court,” 20 Israel L. Rev. 397 (1985); Shapira, Amos, “Confronting Racism by Law in Israel: Promises and Pitfalls,” in Relations between Ethnic Majority and Minority: A Symposium 27 (Tel Aviv: International Center for Peace in the Middle East, 1987) (“Symposium”). A description of similar developments in Israel, Canada, France, the United Kingdom, and the former Soviet Union appears in Ant, Donna E., “Soviet Anti-Semitism: Legal Responses in an Age of Glasnost,” 4 Temple Int'l & Comp. L.J. 163 (1990).Google Scholar

47 Kahane v. Broadcasting Authority, 41(3) P.D. 255 (1986). The Court divided over the rationale, with Bank using a “near certainty” of danger test for racist speech, criticized by Justice Gabriel Bach. See Jacobsohn at 220–24.Google Scholar

48 Mary Ann Glendon, Abortion and Divorce in Western Law 142 (Cambridge, Mass.: Harvard University Press, 1987), quoted by Jacobsohn at 182.Google Scholar

49 George P. Fletcher, “Constitutional Identity,” 14 Cardozo L. Rev. 737 (1993). Fletcher argues that the acceptable way to resolve controversial constitutional disputes is to “turn ‘inward’ and reflect upon the legal culture in which the dispute is embedded. The way to understand this subcategory of decisions is to interpret them as expressions of the decision makers' constitutional identities.” Id. at 737. But what if a judge's “identity” is the religion of constitutionalism, if the central “covenant” of her community is the Constitution? See “The ‘Constitution’ in American Civil Religion,” in Sanford Levinson, Constitutional Faith 9–17 (Princeton, N.J.: Princeton University Press, 1988).Google Scholar

50 Cole Durham, W. Jr., “The Relationship of Constitution and Tradition,” 53 S. Cd. L. Rev. 645 (1980). He was commenting on Hideo Tanaka, “Legal Equality among Family Members in Japan—The Impact of the Japanese Constitution of 1946 on the Traditional Family System,” 53 S. Cal. L. Rev. 611 (1980).Google Scholar

51 Arzt, Donna E. & Zughaib, Karen, “Return to the Negotiated Lands: The Likelihood and Legality of a Population Transfer between Israel and a Future Palestinian State,” 24 N.Y.U.J. Int'l & GI Pol. 1399, 1415–35 (1992).Google Scholar

52 As of this writing, the most recent version of the peace plan endorsed by the U.N. Security Council, while rejected by Bosnian Muslims, partitions Bosnia into three autonomous ethnic republics and requires Muslims to give up land where they constituted the majority before the war. See Chuck Sudetic, “Bosnian Parliament Votes 65 to 0 to Reject the U.N. Peace Proposal,” N.Y. Times, 29 Aug. 1993, at 10, col. 1; John F. Bums, “Partitioned in Fact, Bosnia Sees Even Its Dream Die,” N.Y. Times, 3 Oct 1993, at E5, col. 1.Google Scholar

53 For all the discussion in Apples of Gold about the juridical reliance on the Israeli Declaration of Independence, Jacobsohn neglects to describe the legal status of the American document. Although the US. Supreme Court has been reluctant to treat it as organic American law, and has only infrequently accorded it binding legal force, Congress has placed the American Declaration at the beginning of the United States Code, under the heading, “The Organic Laws of the United States of America.” The Thirteenth and Fourteenth Amendments to the Constitution rendered more or less obsolete the 19th-century debate over is status. See William M. Wiecek, “Declaration of Independence,” in Kermit L. Hall, James W. Ely, Jr., Joel B. Grossman, & William M. Wiecek, ed., The Oxford Companion to the Supreme Court of the United States 223 (New York: Oxford University Press, 1992).Google Scholar

54 Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution 31, 41 (New Haven, Conn.: Yale University Press, 1989). By “nationalism,” Karst probably means something closer to “patriotism,” that is, love of country, than the contemporary, ethnonationalism sweeping across Eastern Europe and elsewhere. On the distinction, see Jacobsohn at 62. Much of Karst's formulation lies in the realm of myth, of course. Michael Walzer offers perhaps a more sociologically accurate version of Karst's individualism: “Americans are communal in their private affairs, individualist in their politics. Society is a collection of groups; the state is an organization of individual citizens. And society and state, though they constantly interact, are formally distinct.” Michael Walzer, “Pluralism in Political Perspective,” in Michael Walzer, Edward T. Kantowicz, John Higham, & Mona Harrington, eds., The Politics of Ethnicity 17 (Cambridge, Mass.: Harvard University Press, 1982), quoted by Jacobsohn at 29 n.38. The last sentence provides an important contrast between the United States and all the organically structured states of the Middle East, including Israel.Google Scholar

55 23(2) P.D. 477 (1969), overruled by 24 L.S.I. 28 (1970).CrossRef Google Scholar

56 Louis L. Snyder, Varieties of Nationalism 207 (New York: Holt, Rinehart & Winston, 1976), quoted by Jacobsohn at 37 n.61.Google Scholar

57 See Wolffsohn, Israel 166 (cited in note 24); and Yossi Klein Halevi, “The Chosen Few,” Jerusalem Rep., 12 Aug. 1993, at 18, on Israeli Arabs in the Israel Defense Forces. For the most part, however, Israeli Arabs have not been eligible for army service, which impacts negatively on their qualifications for employment and state-sponsored benefits. See Ruth Gavison, “Minority Rights in Israel: The Case of Army Veterans Provisions,” in Symposium 18 (cited in note 46).Google Scholar

58 Hadashot, , Inc. v. Minister of Defense, 38(2) P.D. 477 (1984), discussed by Lahav, 10 Cardozo L. Rev. at 536 (cited in note 31).Google Scholar

59 Michal Yudelman, “Missiles United Arabs and Jews,” Jerusalem Post, 9 Feb. 1991 (available in Lexis/Nexis, Jpost file); David Rudge, “Israeli Arabs Offer Haven to Many,” Jerusalem Post, 26 Jan. 1991 (available in Lexis/Nexis, Jpost file).Google Scholar

60 “[T]o ask whether a particular society is a community is not simply to ask whether a large number of its members happen to have among their various desires the desire to associate with others or to promote communitarian aims—although this may be one feature of a community—but whether the society is itself a society of a certain kind, ordered in a certain way, such that community describes its basic structure and not merely the dispositions of persons within the structure. For a society to be a community in this strong sense, community must be constitutive of the shared self-understandings of the participants and embodied in their institutional arrangements, not simply an attribute of certain of the participants' plans of life.” Michael J. Sandel, Liberalism and the Limits of Justice 173 (New York: Cambridge University Press, 1982).Google Scholar

61 See, e.g., Sammy Smooha, Israel: Pluralism and Conflict (Berkeley: University of California Press, 1978); Baruch Kimmerling, ed., The Israeli State and Society: Boundaries and Frontiers (Albany: State University of New York Press, 1989).Google Scholar

62 Quoted by Thomas L. Friedman, “I Too Am Israeli, One Arab Declares (in Hebrew),” N.Y. Times, 21 Jan. 1987, at 3. See Anton Shammas, Arabesques, trans. from Hebrew by Vivian Eden (New York: Harper & Row, 1988). My own experiences living in Israel in 1985 and 1986 belie the equation of Israeli identity and Jewish identity. Rarely did I see native-born Jewish Israelis (“sabras”) in attendance at rallies on behalf of oppressed Jews in countries such as Ethiopia and the Soviet Union. It was primarily American, British, and Canadian Jews who identified with such liberation movements. When Natan Sharansky was released from prison in February 1986 and arrived in Israel, my sabra acquaintances gossiped about his potential marital problems but seemed uninterested in discussing his experiences with Soviet anti-Semitism. And I will never forget the Israeli Jewish teenager I was tutoring in English, whose parents emigrated from Poland and India, making her a prototype of the merger of Ashkenazi and Sephardic subcultures. When I pointed out which authors in her American literature anthology were Jewish, she responded: “You're always talking about being Jewish. I never think about that”.Google Scholar

63 Perhaps the best Comparative law studies are those written by immigrants who have lived as adults in two or more legal systems. E.g., Mauro Cappelleti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989); and Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, Conn.: Yale University Press, 1986). Cappelleti has been a professor of law in Florence, Italy, and Stanford, Cal. Damaska has taught law in Zagreb, Croatia (then Yugoslavia), and New Haven, Conn.Google Scholar

64 See, e.g., Robert A. Goldwin, Art Kaufman, & William A. Schambra, Forging Unity out of Diversity: The Approaches of Eight Nations (Washington, D.C.: American Enterprise Institute, 1989), describing India, the United States, Belgium, Canada, Switzerland, Spain, Malaysia, and, regretfully, Yugoslavia. Though it is 95% rather than merely 82% Catholic, the Republic of Ireland poses another example of a state attempting to reconcile its religiousnational and democratic identities. See, e.g., G. W Hogan, “Law and Religion: Church-State Relations in Ireland from Independence to the Present Day,” 35 Am. J. Come. L. 477 (1987); James F. Clarity, “Irish Begin to Liberalize Laws on Sex and Family,” N.Y. Times, 16 June 1993, at A10, col. 1.Google Scholar

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