Ori Aronson is an associate professor of law at the Bar-Ilan University Faculty of Law, where he also serves as the deputy director of the Menomadin Center for Jewish and Democratic Law. He is a scholar of constitutional law and theory, courts and judicial decisionmaking. Much of his research concerns the institutional conditions of adjudication and the organization of legal power more broadly, with a focus on the ways legal systems accommodate, reflect, and challenge cultural and ideological difference. During the 2023–24 academic year Ori is a visiting scholar with the Harvard Center for Jewish Studies. Ori Aronson was interviewed by Dmytro Vovk.

This interview was recorded before the first law to limit the Israeli Supreme Court was adopted by the Knesset on 24 July 2023. The text has been lightly edited.

The Ongoing Constitutional Crisis

What is the substance of the ongoing constitutional and political crisis in Israel?

This is a very long and convoluted story, which is difficult to briefly explain. The basic problem from which we start is that Israel does not have a formal entrenched constitutional document, although there was a plan to create one when the state was established in 1948, which did not pan out. Therefore, questions of constitutional structure and constitutional commitments have been regularly negotiated and debated in Israel throughout the years; that’s why we have these events once in a while where the fundamentals [of political and legal systems] are being questioned, just because Israeli society has never accepted or agreed upon these fundamentals.

The fact that we don’t have a constitution doesn’t mean we don’t have a constitutional structure and constitutional culture. Over the seventy-five years of the State of Israel’s existence, Israeli law has been developed to include a broad range of constitutional norms, including basic laws enacted by the Knesset and constitutional norms enacted through the Supreme Court’s decision-making. A certain combination of these two sources has brought us to this point where we have a reasonably functioning constitutional system that includes a body of normative texts—basic laws similar to chapters in a constitution, and the body of Supreme Court jurisprudence related to judicial review of legislation and protection of human rights. This makes Israel relatively similar to what we see in other constitutional democracies with some exceptional aspects [determined by the religious component of the state].

However, the fact that our constitutional structure is not entrenched means that when politics are not pleased with a certain element of the constitutional structure, they might act to change it. This is basically where we are now. Many members of the current parliamentary coalition have been quite critical of the Supreme Court for the past couple of decades. They have argued that the Court has been too activist, limiting the power of majority-based governments to govern and pushing for certain ideological perspectives rather than for others. (I am not discussing the veracity of these critiques here.) They have animated the current push to reform some of the most basic constitutional structures that have evolved over the years in Israel. This includes the government’s proposals to basically take over the judicial appointment mechanism and practically completely limit the power of the Supreme Court to review acts of legislation.

In Israel’s parliamentary system, the Knesset is pretty much controlled by the coalition government. This consolidates most political power with the government and makes crucial the capacity of the courts to remain independent and review acts of the government for legality and constitutionality, notwithstanding politicians’ claims of judicial overreach. This is not a unique Israeli specificity. We see these kinds of fights over power between different branches of government, between courts and political branches, all around the world.

What’s relatively unique about the Israeli cases is that the Israeli constitutional system has evolved in a way that locates a significant share of power to review or to critique governmental acts with the courts. We don’t have many other structural elements that would counterbalance the power of the coalition government. Our parliament is a unicameral parliament and controlled by the coalition government. We don’t have a separate executive branch, or federalism, or any international treaty that we belong to. Basically, whenever the governing majority wants to pass something, the Supreme Court is pretty much the only independent institution we’ve had over the years, and curbing its powers would be a significant shift in the constitutional structure.

In Israeli terms this is especially troubling, as we still haven’t resolved many of the big questions pertaining to relations between majorities and minorities, human rights, Israel’s control over the West Bank, the relationship between Jews and Arabs in Israel, or the definition of Israel as a Jewish state, including whether it’s a religious or non-religious concept. Having no independent body involved in checking majoritarian decision-making in these areas would be a significant departure from our existing constitutional provisions.

Rabbi Yehoshua Pfeffer wrote an article arguing that “[t]he true issue underlying the protests sweeping through Israel is demography rather than democracy; a compromise solution concerning judicial reform will be a band-aid alone. The solution depends on Charedim espousing an attitude of broad responsibility and the rest of Israel inviting them to participate as equal partners.” Would you agree that the current crisis reveals or reflects a demographic shift and, consequently, the shift in domineering political orientations within Israeli society? How does this crisis relate to debates over Jewish national identity and its religious component?

There is some truth in this statement. Think about the fact that Israeli Arabs are not very active in these debates and protest. This makes the crisis a sort of intra-Jewish debate between the different factions of the Jewish population in Israel. Thus, one can argue, the Israeli government is now going along with [Jewish Orthodox] parties and pushing their ideologies while the opposition composed of the old guard that used to control government and is now out of power is trying to maintain as much power as possible through preserving non-majoritarian institutions like the Supreme Court.

But I am not inclined to limit the analysis to the cultural or demographic context only, not the least because from Israeli constitutional history we know that the most significant stakeholders in constitutional debates in Israel are often non-Jewish citizens of Israel and Palestinians living in the West Bank. Given that, even though these debates seem to be waged among Jews only, the effects of the debates will certainly impact non-Jewish communities in Israel and in the West Bank, particularly in terms of the rights they would have. Therefore, in my view, there are still questions of values and ideology at the bottom of the discussion—questions about Israel’s overall liberal commitment and to what extent this commitment should remain the central element of Israeli constitutional law.

This goes to the second question about the relation between this debate and the definition of Israel as a Jewish and democratic state. The meaning of this definition, which appears in several of our basic laws, has never been fully settled in Israeli law, in Israeli politics, or within the Israeli population. Thus, the current crisis deals in some sense with the fundamental question of to what extent Israel is a member of the liberal family of states dedicated to universalist ideals of liberalism and human rights and to what extent Israel is a more particularistic national ethnic project dedicated to the interests of a certain group, the Jewish people. On different levels of abstraction these two notions can coincide, but what we see now is the attempt to argue that, actually, the conflict is too serious to preserve both the Jewish and the democratic ideals of the state and, therefore, people have to choose between them. For me, the most tragic element of the crisis we’re enduring now is that we have fewer and fewer people willing to go back and find a way to have these two ideals coincide.

There are still questions of values and ideology at the bottom of the discussion—questions about Israel’s overall liberal commitment and to what extent this commitment should remain the central element of Israeli constitutional law.

But why are Israeli Arabs not very active in these debates? It seems very important to many of them to preserve the current role of the Supreme Court as a counter-majoritarian guardian of human rights and secular elements of the State of Israel.

I think three main explanations are at play here. The first deals with Israeli control over the Palestinian territories, namely the West Bank, and Israel’s settlement activities there. From the 1970s until the present, the Supreme Court has been fully supportive of these activities, and very few of the right’s critiques against the Supreme Court have anything to do with the Court’s review of Israeli activities in the West Bank. In this sense, the Court has been a full-fledged member of the Israeli government in promoting the general project of Israel’s controlling the West Bank and establishing Israeli settlements there. Moreover, the fact that the Supreme Court has been willing to review Israeli activities in the West Bank and mostly approve them is often perceived as a shield from international legal involvement because the independently functioning Court providing objective, impartial reviews of the government’s acts makes it harder for international bodies to intervene. Thus, the Court is correctly, in my view, understood by many, including obviously Israeli Arabs, complicit in the occupation of the West Bank.

The second explanation is, as you hear sometimes from Arab citizens of Israel: Israel is a Jewish and democratic state in the sense that Israel is Jewish for the Arabs and democratic for the Jews. Even though Arab Palestinians living in Israel (not those living in the West Bank) formally have equal rights, they have always felt like second-class citizens. Sometimes this has formal grounds. In 2018, the Knesset passed Basic Law: Israel — the Nation-State of the Jewish People, explicitly saying that this state belongs to the Jews, not to any other group or community. This is also true for some other more-or-less formal policies dealing with land use and policing, as well as for budgetary decisions made over the years. So we hear many voices from that side saying that you, the Jewish elites, are about to start feeling what we’ve been going through since the establishment of the state, and therefore, we won’t join this conflict.

Finally, it’s worth mentioning that protests have taken a strong national, Zionist-pride emphasis. The Star of David and the blue-and-white flag have become symbols of the protests. Many Arab Israelis don’t have any emotional attachment to the flag, as it’s a specifically Jewish symbol. There are many former generals of the Israel Defense Forces among the leaders of the protest, which, by the way, may also relate to the religious component of the crisis. The protests go beyond constitutional reform and are tied to many other issues on the political docket, namely the question of whether ultra-Orthodox men should continue enjoying the military exemption. In addition to the Supreme Court issue, some groups of protesters promote the agenda that everybody should serve in the military. Obviously, these kinds of messages don’t track with Arab Israelis, who are not counted as members of those communities.

As you hear sometimes from Arab citizens of Israel: Israel is a Jewish and democratic state in the sense that Israel is Jewish for the Arabs and democratic for the Jews.

The Religious Freedom Dynamics

Observers point out that the prime minister, Benjamin Netanyahu, committed to a number of policies that would have a far-reaching impact on Israeli society, including tightening rules around religious conversions and immigration. Could you explain this from the legal perspective? For example, what does it mean for the Law of Return?

The Law of Return is one of the first statutes passed by the Knesset in 1950. Its first clause, which is commonly understood as the most significant clause ever enacted by the Knesset, says that every Jew is entitled to emigrate to Israel (literally to “ascend to Israel”) and to receive citizenship. This norm was highly conducive to the entry of nearly a million Jews during the first years after the establishment of the State of Israel. But as time went by, various disputes, including legal ones, started arising. Once big waves of immigration ended and people started arriving in different ways, the government started asking whether a particular person was Jewish or not because the right to immigrate and receive citizenship is almost automatic. If a person is a Jew and arrives in Israel, they become citizens immediately. This is basically the only way to immigrate to Israel, as the state has virtually no non-Jewish immigration, with very few exceptions.

Debates emerged around the definition of “who is a Jew,” with objective and subjective tests proposed. A whole body of literature on this issue exists both in Jewish tradition and Israeli law. These laws resulted in some climactic Supreme Court decisions that led to the 1970 amendment to the Law of Return, which introduced for the first time a legal definition of whom the state considers a Jew.

The definition says that, for the purposes of the Law of Return or for immigration to Israel, a Jew is a person born to a Jewish mother or converted to Judaism. Being born to a Jewish mother is a religious Orthodox criterium for membership in the Jewish people. It has nothing to do with your belief system or your emotional attachment to Judaism. It’s a purely ethnic test based on the matrilineal principle, which is accepted by the Orthodox Jewish tradition. The other option to immigrate is conversion, which is also recognized by Jewish religious circles. Thus, the definition adopted was relatively religious within a secular legal structure, and it obviously limited the range of people who could be admitted under a more broad or more abstract notion of Jewishness.

Once big waves of immigration ended and people started arriving in different ways, the government started asking whether a particular person was Jewish or not.

This means that, for example, if I were born to a Jewish father or lived a Jewish life but my mother happened not to be a Jew, I wouldn’t have rights under the Law of Return. To balance this effect, the law was amended with another section saying that, beyond individuals born to a Jewish mother or converted, anyone who is a family member of a Jew, including spouses, children, and grandchildren, can also immigrate to Israel. The idea behind this provision was to secure for people who don’t exactly conform to the above-mentioned definition, the opportunity to arrive with their families and to avoid family separations. It also allows for members of Jewish families to immigrate themselves even if the Jewish member himself or herself is no longer living.

This scheme has worked reasonably well over the years, but an argument has been pushed by relatively extreme Orthodox parties that this is a way for many non-Jews to immigrate to Israel. According to them, it’s not enough if a person can manage to prove that just one of their grandparents was Jewish. Then suddenly we had a wave of non-Jewish immigration into Israel, with the main spike happening around the 1990s, after the fall of the Soviet empire when a large mass of Jews emigrated from the former USSR to Israel. As a result, now in Israel there is a large group of citizens (several hundred thousand) who immigrated according to the Law of Return, received citizenship, but are not considered Jews by the state.

I’d say that most Israelis have no problem with that: these people are full-fledged citizens, pay taxes, serve in the army, and contribute to our culture and economy. But some versions of religious Zionism see this as a problem. From that perspective, the balance between Jews and non-Jews is not sufficient in the country. Some of the parties in the current coalition demand to eliminate the grandchild option and allow only second-generation immigration; if a person is a grandchild of a Jew, they would no longer be able to immigrate to Israel.

Is the conversion aspect of immigration also covered by proposed amendments?

The conversion issue is also complex. The law says that anyone who converted to Judaism can immigrate to Israel. But converted how, by whom, and according to what procedure? Over the past couple hundred of years, the Jewish religion has split into several streams: Orthodox and ultra-Orthodox, Conservative, and Reformed Judaism, as well as more modern alternatives. The Israeli legal system has generally accepted Orthodox versions of Jewish religious concepts and, thus, has had trouble accepting people who converted to Judaism according to non-Orthodox methods—for example, in the Conservative or Reformed traditions, which the majority of American Jews belong to. This provokes dire conflicts between Israel and the diaspora.

The Supreme Court has been highly conducive to gradually broadening the interpretation of the term “converted” in the Law of Return to allow conversions through non-Orthodox communities. As a result, today, people converted to Judaism in basically any relatively structured Jewish context, reform or conservative, outside or within Israel, would be allowed to enjoy the right granted by the Law of Return. The Supreme Court’s approach has been subject to critique by more extreme Orthodox parties. They claim it to be another way to dilute the Jewish character of Israel and insist that the conversion option has to be limited to what’s accepted by Orthodox Judaism.

It has been reported that the government is planning to expand the powers of Rabbinical courts. How would that affect the Israeli legal system?

Since its inception, Israel has had a modern secular court system, which is very professional and capable. But alongside, Israel also maintains several religious court systems created even before the state’s establishment; they were already in place in times of the Ottoman Empire, accepted by the British mandate, and then transferred into Israeli law. These religious courts have unique and exclusive jurisdiction over issues of marriage and divorce in addition to some personal status matters for all citizens of Israel. If you’re Jewish, you’re mandatorily subjected to the jurisdiction of Jewish Orthodox religious courts (Beth din). If you’re Muslim, you’re subjected to Israeli state Sharia courts; the Druze and Christians are the same.

This structure of the judiciary generates a variety of implications. For example, in Jewish religious tribunals only male rabbis can preside. It’s also worth remembering that, as the jurisdiction of religious courts covers family law and relations between, obviously, men and women, [the religious approach] to these issues is a significant factor. In addition, the substantive law that rabbinical courts apply is traditional Orthodox Jewish law not founded on any kind of liberal concepts. Overall, the situation where everyone is subjected coercively to religious laws and the jurisdiction of religious courts is a deep-seated, problematic aspect of Israeli democracy and its commitment to liberal values.

However, Jewish religious tribunals are not only state institutions that have stipulated jurisdictions according to the law. They are also perceived by the rabbis presiding in them, but also by many communities in Israel, as a continuation of the historical jurisdiction of Jewish communities throughout the world, over all matters of private-law disputes. Over the last 1500 to 1700 years, whenever you had a Jewish community in the diaspora, you’d have some form of a tribunal that would control internal disputes within that community. Given that history, Israel’s religious tribunals have promoted the idea that they should also be able to adjudicate private-law disputes among willing participants if they have a contract dispute or tort claim or an employment-law dispute. Jewish law, they have argued, has norms to apply to these types of disputes, developed since the Talmud, and the rabbis presiding in these courts have relevant knowledge to resolve these disputes. This is not a new trend. For quite a while, we have seen recurring attempts to extend rabbinical courts’ operation beyond their formal jurisdiction granted to them by Israeli law.

In 2004, the Supreme Court handed down a decision prohibiting such an extension of jurisdiction. The Supreme Court held that religious courts are only allowed to resolve disputes prescribed by their jurisdictional statues, which are marriage/divorce and personal status cases, and must cease all operations dealing with any other kinds of disputes. Proposals to amend jurisdictional statues and re-authorize rabbinical tribunals to adjudicate a variety of private-law disputes have emerged regularly since then, and now the current government has a parliamentary majority to push for such amendments. What they propose is something in between adjudication and arbitration, as both parties would have to agree to the jurisdiction of the court. If they do, the religious court will be able to adjudicate the case according to Jewish law and hand down a decision. It’s a matter of discussion whether these decisions should be enforced immediately, or an additional procedure is needed. But in general, the idea is that rabbinical courts will be granted jurisdiction over other cases based on the agreement of the parties. This is obviously an extension of these courts’ jurisdiction.

Israel’s religious tribunals have promoted the idea that they should also be able to adjudicate private-law disputes among willing participants if they have a contract dispute or tort claim or an employment-law dispute.

From the perspective of the “Jewish and democratic” nature of the state, this is a zero-sum game. On one side are liberal commitments, and on the other side are Jewish-religious commitments. These amendments push [the equilibrium] to the religious side and more power to religious state bodies. As a result, cases that would normally arrive at secular courts might find themselves in religious courts with all the relevant biases I mentioned before.

But this is not the only way to see this situation. In Israel, as well as in Jewish communities abroad, there are also non-state rabbinical tribunals. The authorization of state rabbinical tribunals to consider these cases might take some of the work from private tribunals, not only from state secular courts. Even though they have the above-mentioned structural biases, state rabbinical courts are still supervised by the state, and the Supreme Court has some degree of review over them. So one may argue that, in some contexts, state rabbinical courts are a better solution than sending people to a completely private tribunal where the level of supervision and transparency is lower.

Many commentators are concerned with the notion of parties’ agreement. The supporters of proposed amendments argue that rabbinical courts will accept these cases only if parties want them to; otherwise parties can go to a regular, secular court. However, this is not always the case in real life. The consent to bring the case before a rabbinical court, especially in traditional communities, is not always free. There are elites and non-elites, men and women, and sometimes certain members of the community can force other members not to go to secular court.

You have already mentioned the problem of free/non-free consent. In your view, how can the proposed reform and legislative amendments we have already discussed impact religious freedom, including freedom from religion?

Using an American term, Israel has a highly entangled structure of religion and state. [The exercise of religion] is sometimes not a matter of religious freedom per se because religion often receives preferential treatment in Israeli law. A few points of concern can be mentioned.

First, the idea of freedom from religion. Whenever the state coerces certain religious practices over people who are not interested in them or are even offended by them, this limits freedom from religion. The marriage/divorce issue is the most extreme example in this sense. In Israel, one can’t choose in favor of non-religious marriage or divorce, nor can one marry a member of a different religious group. Over the years, the Supreme Court has developed some workarounds in this field. For example, one can marry abroad and get [the marriage] recognized in Israel. We have several norms pertaining to Shabbat limitations on the opening of businesses and work permits, as well as some norms affecting access to non-kosher food in different contexts.

Over the years, norms regarding Shabbat and kashrut have generally become more relaxed: now more business are open during Shabbat in secular cities, there is more access to non-kosher food even during Passover, etc. But still there are a lot of limitations affecting freedom from religion. For example, as I already mentioned, non-Orthodox Jewish streams or denominations, like Conservative or Reformed Judaism, have a hard time trying to receive the same level of support or accommodation that Orthodox Judaism has. These communities have very few representatives in the Knesset, and they normally have to fight for budgetary and other support that go without saying to Orthodox Judaism. This obviously affects the capacity of these communities to freely exercise religion to the same extent Orthodox communities can do. Finally, demands from ultra-orthodox leaderships to force gender separation in the public sphere are gaining more and more traction, often leading to draconian regulations that tend to leave women in the back, hidden, or indeed wholly excluded.

Finally, within Orthodox Judaism there is the issue of the right of women to freely exercise their religious beliefs. In Israel, we observe a significant movement of Orthodox women demanding to be part of the religious elites. The ultra-Orthodox parties in Israel do not allow women to be elected. All members of ultra-Orthodox parties, which constitute up to 15% of Knesset, formally exclude women from their parties. Only a few years ago, women were allowed for the first time to take rabbinical exams, run by the Chief Rabbinate, which is a state institution, and the Supreme Court was involved in this case as well. Before that, only men had been allowed take these exams and be formally accredited as rabbis and then hold various positions within the Israeli governmental structure. Women can’t serve as judges in rabbinical courts or as municipal rabbis. In some sense, this is also a matter of religious freedom because they can’t occupy these positions based on religious [precepts].

There is obviously the other side of this coin. If a person is an Orthodox Jew, a man or a woman, and accepts Jewish Orthodoxy in general, they enjoy a lot of religious freedom in Israel, because the state not only allows them to exercise their religion but also supports and accommodates it and sometimes even implements its provisions coercively. So, if one belongs to the right group, one will get more religious freedom in Israel than in many other places.

Still Jewish and Democratic?

The picture you present looks quite ambiguous. On one side, the Israeli model of religion-state relations seems to have become even more entangled. On the other side, the fact that Reformed or Conservative communities have gained more support and accommodation from the state, while women have obtained more opportunities in becoming rabbis, seems to be a step towards more religious diversity and religious freedom.

I think we have different, contrasting trajectories in this domain. Again, on one hand, we also see the liberalization trend when it comes to explicitly non-religious practices. For example, the situation with gay rights in Israel has improved significantly over the past few decades, and the Supreme Court was central in pushing for these rights. As I mentioned, the public sphere in the country has become more receptive to non-religious practices than it was before, but is also facing new demands for greater gender segregation. At the same time, and this goes back to the initial part of our conversation, the general polarization in Israeli society along big questions like “old elites versus new elites” has only become more extreme.

The classic distinction between the right and the left pertaining to many problems—like constitutional issues, the relation to West Bank and the occupation, and the Jewish-Arab conflict—overlap too neatly with the distinctions between religious and non-religious parts of Israeli society. Statistically, religious Israelis are much significantly more likely to vote for the right rather than for the left, even though Jewish tradition has a lot of what one can call “leftist” elements in the sense of a social-economic perception of the role of the government. But as people fight over some other issues overlapping with the religious/secular division, this fight polarizes [all their political preferences and choices,] even though the reality might not be as bad as people feel it is. This results in the polarization of political demands on both sides. Now from the current government and the coalition that established it, we hear many demands that we didn’t hear before. Think about religious exemption in providing public services. While in the U.S. there was the cakeshop case, in Israel we now have a similar case regarding a printing press’s refusal to print invitations to a gay wedding. This has been hotly contested, and the current government is more likely than others to allow religious exemptions in this sphere.

One more challenge—an enormous one, in my view—is the state’s relation towards the ultra-Orthodox minority specifically. Ultra-Orthodox Jews are the fastest growing but also the poorest segment of the Israeli population. They have the least income in comparison to all other demographic groups in Israel. They are obviously highly protective of their community traditions and, in the education sphere, are hesitant to include in curricula subjects like English, math, and civic education, preferring to focus exclusively on rabbinical studies. This situation provokes a variety of implications. From an economic perspective, in 30 to 40 years this community will comprise one-third of the population living basically on welfare. The question arises how Israel will be able to maintain its economic development in these terms. From an ideological perspective, these communities don’t share liberal commitments and the democratic notion of Israel. Some of them are not even fully Zionist in the sense of recognizing the necessity of the Jewish state to exist. Over past decades, this has led Israeli governments to attempt to implement all kinds of projects to somehow open these communities to the public and push them closer to broader society.

These policies have provoked legal challenges and complexities. If the government wants these people to go to university and acquire a profession, they will arguably refuse unless separate classes for men and women are provided. Should public universities allow these classes? If the government wants ultra-Orthodox men to serve in the army, would it be acceptable to declare that their units won’t have female commanders? This sounds like quite a questionable solution. Another aspect of complexity is to what extent the public sphere should be reimagined and redesigned to accommodate such a significant group. It goes beyond pure political issues; it’s a question about the future of Israel and the possibility of our living together on this small segment of land where different people have strongly different perceptions of what the public sphere should look like.

Does this mean that the tension between the Jewish and the democratic natures of Israel will probably intensify?

Sadly, it sounds like a realistic prediction because of the different imaginaries of different communities within Israel about what the Jewish state should entail: a more pluralist understanding versus a more strongly religious one. Another aspect of this problem is the Jewish-Arab question, which we briefly discussed. It remains completely unresolved. The more the Jewish side goes towards a more particularistic understanding of Judaism, the more difficult it makes it to conceive a shared public sphere that would include explicitly non-Jewish imaginaries—namely, Arab Palestinians who constitute about 20% of the population. Along this axis, many people are scared by the events that took place in spring of 2021 and led to violent clashes between groups of Jews and Arabs in mixed neighborhoods around Israel. Unfortunately, it’s hard to argue that, since then, Israeli governments have genuinely attempted to resolve or weaken the tensions along the Jewish-Arab axis. These challenges remain extreme going forward.

Here, at the Bar-Ilan Menomadin Center for Jewish and Democratic Law, we try to show how the notion of combining the Jewish and democratic nature of the state could actually be a way out of disputes rather than a way into them. We argue that people should be encouraged to express their values through interacting with other value systems, which could help improve their own understanding or belief in what they stand for. In this sense, interactions between distinct value systems serve as a way of empowering both systems, not weakening them. There are a few optimistic groups in Israel trying to keep us together. Hopefully this approach will prevail, but the challenges Israeli society faces are obviously severe.

The final question is what are the best and the most realistic scenarios for resolving the current constitutional crisis in Israel?

For me, the best scenario is that the completely historically exceptional civic energy that has exhibited itself over the past several months in Israel would be preserved and channeled to broad grassroot engagement in questions of living together. If I had to draft the next basic law that perhaps is being negotiated now, I’d go with the basic law on the future of the constitutional process in Israel. There should be some highly participatory process established for Israeli communities to deliberate, in accordance with an accepted set of principles, a series of questions on Israel’s constitutional identity and shared life.

I don’t think it’s possible and even a good idea to push for a full constitution of the State of Israel at this point because none of the big questions polarizing Israeli society has been resolved. But this doesn’t mean that we can’t proceed with a lower-level constitutional deliberation that might help to develop agreements about ways to live together, even if we still don’t agree about those questions. Since the beginning of this crisis, as a member of the Israeli Law Professors Forum for Democracy, I’ve been giving a lot of talks in homes, workplaces, and universities. People keep coming to listen to this professor and to talk about constitutional law—things that are relatively technical. People seem to be engaged and interested. This is a unique period in the nation’s life. If we can turn that into a process where people are willing to engage with the other side, not only with themselves, we’ll reach the most optimistic result of this crisis.

The best scenario is that the completely historically exceptional civic energy that has exhibited itself over the past several months in Israel would be preserved and channeled to broad grassroot engagement in questions of living together.

A more realistic scenario is that we’ll return to normal politics rather than continue to shift the political crisis to constitutional politics even more. I don’t think that the proposed reform is likely to be adopted as proposed, but certain elements could possibly pass. The main concern here is that suddenly the constitutional order seems to become more amenable to short-term political interests. Certain things we previously thought should remain untouched—not because they’re necessarily the best arrangement but because of their durability—are not untouched anymore. We don’t have a fixed constitution, but as I mentioned before, we still have a relatively stable constitutional structure. If this structure is eroded to a point where any government coalition can start playing with the rules of the game to benefit itself, it might be disastrous. I’m hopeful that constitutionalism will still retain some of its force in Israeli politics. Israel’s fate as a democracy hangs on the line.