Impact of Modernization

At its most fundamental level modernization is said to involve liberation from traditional authority, a new positive attitude toward change, and a turn from cultural orientations or values to social rationality. A civil society autonomous of the state emerges, as do new social strata (particularly professionals), more complex economic division of labor, and general bureaucratization. The weight of tradition, and its associated particularities, decline as objective forces mold all aspects of life. There is a convergence as societies respond to the same forces, a process which accelerates as these forces become internationalized. Of course, we are reminded, the dichotomy between tradition and modernity is not absolute; traditional societies also can undergo considerable change and modern societies retain considerable diversity, often incorporating traditional elements in a variety of ways. But modernization still involves a number of common universalizing tendencies.^[77]

In terms of these basic definitions, Israel has long been a modernizing or modernized society. Zionism was itself part of a broad historical challenge to old identities and value orientations. Jews were to join other peoples in a process of nation-building, creating a new order consonant with the progressive currents of the time. Zionism, and Israeli society, were attuned to, and even fixated on, technological innovation and prevailing models of social and economic development. The yishuv and the state, like other modernizing societies, underwent increased social mobilization, organizational diversification and proliferation, rationalized regulation and allocation (market mechanisms, voting), greater division of labor and occupational specialization, enhanced social mobility, urbanization, secularization, expansion of media, and diffusion of political power.^[78]

This process—long and slow but cumulative—was obscured by ideological habits of thought and revived resistance of traditionalists. But by the 1980s and 1990s, with the decline of ideology, the pressures of modernity were taking center stage. In the third great revolution of the modern era—that of information technology, following the earlier industrial and scientific revolutions—Israel was not only a full participant but was even at the forefront in certain respects. The electronic age was integrating Israel into the larger world in ways that the founders of Zionism could hardly have imagined, while at the same time rewriting the rules of Israeli politics.

The impact of modernization on politics, as generally understood, is to create a more diversified political structure, to extend the scope of law and administration into all spheres, to spread power more widely, to weaken traditional elites and traditional sources of legitimation, and to foster a new accountability in which the ruled participate more directly in selection of the rulers and in setting major policies.^[79] In the Israeli case, this has been expressed by diffusion of power within and among parties, decline of party dominance, emergence of new kinds of political actors, a new “mass politics” based more on personalities and less on issues, greater electoral fluidity and volatility, and the strengthening of administrative and legislative regularity.

“Mass politics” meant appeals to a broad central spectrum of the electorate, to a large floating vote influenced more by the images of leading candidates and by general public mood than by ideological loyalties. This was closely linked to the changing role of the media. Since late 1968 television had come to play a large role in election campaigns and in shaping public images of candidates and issues, in place of the classic party-sponsored political rallies of the past. The party press, which had once dominated the newspaper scene, was pushed aside by the popular independent papers more closely tuned to the general public mood.

The correlation of voting to party platforms was strikingly weak; if voters had for certain historical reasons voted to the left of their beliefs during the glory days of Labor Zionism, they now deviated in the other direction because of a general weakening of ideology and the presence of personal and emotional factors that overshadowed the issues. About half of the voters remained loyal to their parties through several elections—a proportion higher than in other Western democracies—but this still left a considerable floating vote that could potentially cause a radical shift in power any time it flowed more in one direction than the other.^[80] The shift from issue-centered politics to image-centered media campaigns sparked the emergence of populist appeals in election campaigns; in 1981, for example, the government in power made imported television sets and videocassette recorders much cheaper to buy—at the cost of great damage to the nation’s balance of payments—in order to create a more favorable climate on election day. To some observers, there was even a risk that the system might become too responsive, moving from tight party control to unrestrained populism and demagoguery.^[81]

Another aspect of the loosening party system, and one generally regarded positively, was the democratization that took place within the parties. In the past party leaderships had tightly controlled the selection and ranking of Knesset candidates, thus insuring fairly strong party discipline. By the early 1980s there was some loosening of this process as candidate selection, in at least its early stages, was passed on to broader and more representative party bodies. In 1988 the Labor Party chose most of its candidates through twenty-three councils of district branches with the final ranking done by the Central Committee (a body of 1,267 members), a procedure that led to the rejection of some prominent party figures (Abba Eban in particular).^[82]

By 1992 Labor had moved all the way to a full-fledged primary system for both Knesset candidates and for selection of party leader, with all registered party members eligible to vote in the election that replaced Shimon Peres with Yitzhak Rabin. The ensuing general election was also unusually personalized, with Rabin’s supporters and opponents both focusing on his personal strengths and weaknesses in the confrontation with the comparatively less popular Yitzhak Shamir. Other parties were undergoing similar transitions during this period; in March 1993, the Likud replaced Shamir as party leader with Benjamin Netanyahu in its first general party primaries.

The new open elections did change party slates to some degree, at least in bringing in younger candidates and increasing representation of Jews from Asia and Africa, though they were less successful in increasing the numbers of women and Arab candidates. More broadly, like modern parties elsewhere Israeli political institutions were becoming less ideological. In place of the old party ties centered around youth movements, newspapers, and other elements of the “movement” style of life, they now waged modern election campaigns aimed at the amorphous middle of the political spectrum with hired U.S. political consultants and public relations firms. Differences on issues were blurred, especially in the realm of economic policy where the gap between the two major blocs had long been narrowing. The Labor Party had long subsidized business interests, for example, and the Likud after 1977 continued to do so despite its supposed commitment to a free market. And while more voters identified with the right than had been the case before 1977, a majority (60 percent in one survey) continued to support socialism and to oppose reduction of the state’s role in the economy.^[83] Even differences on the occupied territories narrowed somewhat, as both Labor and Likud moved toward autonomy as at least an interim solution; debate now focused on the scope of autonomy and whether it would be the permanent solution. While “polarization” between hawks and doves was a major concern of the early 1980s, commentators a decade later were remarking over a lessening of distance between the two camps and the incorporation of more extreme groups back into the two major parties.^[84]

Israelis were turning more to other bodies for services and channels of access previously provided by parties, as reflected in the expansion of governmental activities and the proliferation of other political, social, and economic groups. Parties, it seemed, were simply becoming less important. Or were they? It could be argued that it was primarily the parties’ mode of operation and electoral behavior that changed, and that once an election was over they were no less important than before. Parties still held the key to forming governing coalitions and negotiating government policy.

In other respects, modernization or Westernization of Israeli public life also contributed to greater regularization and rationalization in areas where a predisposition in this direction existed. The best expression of this was in the legal and judicial sphere, though the picture regarding attitudes toward the law is somewhat contradictory; two opposed trends were operating at the same time. On one hand, “illegalism” accompanied the growth of extraparliamentary politics and the breakdown of the tight Ben-Gurion system. Yet at the same time there was often more tolerance in practice, politics was more competitive, groups at the margin of the system were now drawn within it, and arbitrary procedures were reduced in a number of specific areas.^[85]

To be sure, Israel remained one of only seven nations, and only three democratic nations (together with the United Kingdom and New Zealand), that have never had a formal, entrenched, written constitution.^[86] But part of the progress toward a civic legal order was passage of nine of the eleven Basic Laws projected as building blocks for such a constitution, as well as two pieces of what was to have been the tenth Basic Law. Put together these Basic Laws are an impressive body of “constitutional” material (see Table 3).

The last two laws listed in Table 3 were to have been part of a Basic Law on Civil Rights, but they were passed separately when other parts of that proposed law bogged down in controversies over security concerns and religious opposition. The projected eleventh Basic Law, on Legislation, also raises religious objections since it affirms the legitimacy of nonreligious sources of law; thus, completing the process of writing Basic Laws is problematic. Only specified clauses in some of the Basic Laws are entrenched to any extent, requiring an absolute majority (or in one case a majority of 80 members) of the Knesset for any change; otherwise any of these provisions can, like an ordinary piece of legislation, be changed or invalidated by a simple majority of those voting (as they in fact have been). In essence, for the constitution as a whole to be entrenched the Knesset will have to vote away its own prerogatives, an act rare in the annals of legislative history.^[87]

Nevertheless the net result of this process has been a steady growth of constitutionality over time. The basic contours of Israel’s political and legal order has stabilized and are not going to be suddenly or arbitrarily changed. Apart from the Basic Laws, some other documents and Knesset laws also have an aura of basic definition of government about them: the Declaration of Independence, the Law of Return (1950) asserting the Jewish link to Israel, the 1952 law specifying the status of the World Zionist Organization and the Jewish Agency, the Equal Rights for Women Law (1951), and others.

The solidification of the court system also has advanced the rule of law. In this area tradition and modernity go hand in hand: courts and legal institutions have always played a central role in Jewish life, while in a contemporary context they are a prime vehicle for instilling the civic ethic.^[88] Of course Israeli courts, like other features of public life, come in a variety of shapes and sizes. There is in fact a loosely coordinated set of court systems: civil courts, military courts, and religious courts (in fourteen different recognized religious communities). Of these the civil courts are the most instrumental in promoting democracy and the rule of law, while military and religious courts tend to draw on and strengthen group identity and solidarity.^[89]

The judiciary remains one of the most important channels of Western influence. The Supreme Court is particularly important in promoting universalist values. Sitting as the High Court of Justice, it exercises an equity jurisdiction as a court of first instance as well as appeal, intervening to protect individuals from government arbitrariness. The court has increasingly applied principles of natural justice to legislation and administrative measures, adding safeguards to existing procedures and curtailing actions said to impinge on human rights. It has also expanded its jurisdiction to cover such areas as internal decisions of the Knesset and the substance of security claims made by the government.^[90]

The Israeli system remains majoritarian in that a Knesset majority is still sovereign; ordinarily acts of the Knesset cannot be invalidated by the courts. But even in this regard the scope of judicial review has been expanded somewhat. In 1969 the Supreme Court, sitting as the High Court of Justice, invalidated an election financing law that conflicted with an entrenched provision of a Basic Law but had not been passed by the absolute majority needed to amend that Basic Law (Bergman v. Minister of Finance). The Knesset subsequently passed a new law consistent with the Basic Law, while at the same time mobilizing the necessary sixty-one votes. Similar court actions were taken in 1981 and 1982, again negating changes in entrenched provisions of Basic Laws passed without the absolute majority required by these provisions. In essence the High Court was simply forcing the Knesset to observe its own rules, while recognizing the right of the Knesset to change any legislation, including Basic Laws and the rules themselves, so long as proper procedure was followed. On the other hand the proposed Basic Law: Legislation would give all Basic Laws a superior status, requiring an absolute majority at all stages for changes and providing formally for judicial review; if passed this would again increase the constitutionality of the Israeli system.^[91]

Finally, there was increasing resort to quasi-judicial official commissions of inquiry set up under the 1968 Commissions of Inquiry Law, empowered to require all officials—even the prime minister—to testify and supply evidence, and to issue specific recommendations that are generally implemented. Such commissions sorted out a number of front-page controversies, including lack of preparedness in the 1973 Yom Kippur War, failure to prevent the massacre of Palestinians in Lebanese refugee camps (Sabra and Shatila) in 1982, collapse of the bank shares market in 1983, controversy over the interrogation methods of the General Security Service in 1986, and the 1994 massacre of Moslem worshippers by a Jewish settler in Hebron’s Tomb of the Patriarchs.

At the same time Knesset legislation accumulated over time, gradually replacing older Ottoman and British laws and creating the basis of a unified and rationalized code of law. The role of common law diminished as the gaps in existing laws were filled in. Executive discretion has been narrowed as laws become more detailed, and ministerial regulations are reviewed more consistently by Knesset committees. Knesset procedures have also been tightened, with committees meeting more often and maintaining a closer watch over government activities and finances.^[92]

Among the areas in which governmental powers have been more carefully defined is wiretapping, where a 1979 act detailed procedures designed to prevent arbitrary or unjustified invasions of privacy. In addition, over time governmental secrecy loosened considerably: public debate over strategic issues (even nuclear weapons) became less restrained, the inner workings of government (never totally hidden) became more visible, and information on sensitive topics became more available.^[93] For example, efforts to contain information about the 1986 arrest of former nuclear technician Mordechai Vanunu provide an interesting contrast to the Lavon affair some thirty years earlier. While details of the Lavon affair became public knowledge only years after the fact, the sensational story of Vanunu passing Israel’s nuclear secrets to the Sunday Times (in London), and his subsequent abduction to Israel, swiftly became public knowledge (even though his trial was conducted in secret).

Progress was even made in regularizing some of the more controversial emergency regulations. Following the assumption of power by the right-wing Likud bloc in 1977, a law replacing Regulation 111 of the 1945 Defense Regulations (on administrative detention) with more circumscribed procedures and abolishing the deportation measures in Regulation 112 (within Israel itself), was enacted in 1979. In contrast to the British regulations, the new law required judicial approval of any detention within forty-eight hours (as with ordinary police arrests). Judicial review explicitly includes examination of the “objective reasons of state security” that justify the detention. Amnon Rubinstein, who had been among the leading critics of previous arrangements, called the new law a “most liberal arrangement—almost without precedent in countries facing emergency situations and war. . . .” ^[94] Judged by international human rights standards, the 1979 Emergency Detention Law meets the International Law Association standards on administrative detention: procedures set by law, the right to be informed of grounds for detention, the right to consult a lawyer, judicial review, limited duration, and humane treatment. Only on publication of the names of the detainees is Israeli practice remiss.^[95]

According to the International Commission of Jurists, as of 1985 at least eighty-five countries had laws permitting preventive detention.^[96] Compared even to such nations as Great Britain (especially in Northern Ireland), Canada (where 450 French Canadians were detained in 1970), or the United States in its treatment of the Japanese during World War II, the 1979 Israeli law, as applied, seems unexceptional. This, however, raises another question: if this most problematic part of the 1945 British Defense Regulations can be successfully replaced by “ordinary” legislation, then why are the rest of them still on the books?

The issuance of emergency regulations under Section 9 of the Law and Administration Ordinance, on the other hand, seems at first glance to have skyrocketed. The number of new regulations jumped to an annual average of nearly twenty after the mid-1970s. But most of this quantitative leap is a result of an explosion of regulations authorizing return-to-work orders to striking public employees. Of the 144 new regulations in the 1975–1982 period, 124 were of this type, meaning that the underlying pattern had not significantly altered. At the rate of two to three a year, non-work-related emergency regulations were being enacted less frequently than during the first fifteen years of the state’s existence, and a large proportion of these came during the 1982 Lebanese War.^[97]

In 1985 Section 9 was used by the National Unity Government to enact the broad-ranging and drastic Economic Stabilization Program. The emergency regulations, signed by both Shimon Peres of Labor as prime minister and Yitzhak Modai of Likud as minister of finance, established strict controls on wages, prices, conditions of employment, taxes, welfare, and number of public employees, superseding all previous laws and agreements. Leaders of both major parties defended the unusual use of emergency powers on grounds that the economic crisis was threatening imminent disaster and that getting such a program through the Knesset expeditiously was a practical impossibility given the range and importance of interests affected. Nevertheless, there were strong reactions from many sources, including condemnation by a former minister of justice and some calls for resignation of the attorney general, who had approved the use of Section 9.^[98]

Considering the amount of discretion available and the absence of firm institutional obstacles in a system without a written constitution or bill of rights, the use of emergency powers in Israel has been modest. The same might be said in comparison to other nations; for example, the British Emergency Powers (Defense) Acts of 1939 and 1940 (in Britain itself) went much further than Israeli laws or practice, and many of the provisions were continued after the war, until as late as 1959.^[99] Nevertheless, an alert civil libertarian could easily identify several areas of weakness in the application of Israeli emergency powers. Among these would be the use of emergency regulations in nonemergency situations, the remaining limitations on judicial review, defective safeguards in the administrative process itself, the unequal application of emergency rules, and the use of measures questionable in themselves.