Distilling Sovereignty

Sovereignty is incompatible with democracy, but contemporary politics often make the most ardent advocates of majority rule the most insistent upon a reclaiming of sovereignty. This is most obviously the case in the US, where Trump was, if we sum up his central commitments (anti-immigration, anti-free trade, pro-swamp draining, America First) the candidate of both the restoration of American sovereignty and the redirection of government to the service and control of the American people. The apparent convergence of sovereignty and straightforward majority rule derives from the formidable opponents they share: transnational corporations with economic interests in the ability to move facilities around the world at will; corporations and activists who benefit from the continual migration of masses of Third Worlders; transnational progressives and foundations who find it more efficient to work through institutions less responsive to popular will, like the judiciary, the media and government bureaucracies. Both the strict sovereignist and the strict democrat will want these vectors of chaos closed off. The incommensurabilities will become clear eventually, but until then those democrats and populists concerned with the preservation of sovereignty might have a lot of interesting things to say, and even their contradictions and inconsistencies may be worth looking at.  Especially when they are both articulate and responsible members of a ruling coalition.

Good governance is not a blind force, certainly not a strong but silent engine… the ability to carry out goals in the way they have been defined is a prerequisite condition for good governance, but is far from being sufficient in itself: good governance is measured above anything else by the ability of government ministers to establish their own goals.

A politician who knows how to bring the train to its destination, but is unable to set the destination, as senior as he may be — is not governing but merely subcontracting; he may have been appointed Minister, and he may get to cut ribbons in the end, but he is nothing more than a contractor… To move down a track laid down by others does not require leaders; any driver could do it just fine. The essence of governance is always setting down directions and posting goals. This requires of elected officials to lay down new tracks only after they had decided for themselves where they would like to take the train.

This is from the opening of an essay by Israeli Justice Minister Ayelet Shaked, “Tracks Toward Governing,” published in a new Hebrew Journal last fall. The government of which Shaked is a part has been working on curtailing the activities of foreign funded NGOs (largely by compelling them to reveal the amounts and sources of their funding—I don’t know where this effort stands), is in the process of passing a law that will enable the elected government to override Supreme Court decisions, has built a border fence that has drastically reduced border crossing by African migrants while making fresh commitments to remove the “infiltrators” (the word anti-illegal immigration Israelis use) already there (this seems to be stalled by the problem of finding countries to take them, with their home countries apparently not eager to have them back) or at least remove them from the population areas where they have significantly degraded the quality of life for Israelis. Shaked has been a leading force in these initiatives, and defends and explains them better than other Israeli politicians, so she is unsurprisingly the most vilified figure in Israeli public life today. Many on the alt-right propose, in what always seems to me a combination of bitter sarcasm and a genuine admiration for the way Israel address its own “national problem,” that we take Israel as a model—in the game spirit of “agree and amplify,” I’m going to take that injunction seriously in a discussion and assessment of Shaked’s very interesting essay.

As we can see from the passage quoted above, Shaked defines sovereignty very rigorously (if metaphorically) and her definition would hold for any kind of government, regardless of who the sovereign is. To be sovereign is to set the goals for governing and possess the means to fulfill them. You could ask someone who sees sovereignty this way whether she would adhere to this understanding even if it can be shown that sovereignty, in this sense, is impossible under either liberalism or democracy. Indeed, her whole train metaphor is illiberal. The notion of the government “setting the direction” and getting to the “destination” is incompatible with liberal government—if we are all free individuals embarking on subjectively chosen and unrelated life projects how could we share a common destination that the government is to take us to? Shaked may mean “destination” in a weaker sense: if the government, say, decides to partner with an energy company to explore off-shore oil reserves (the very issue that is forefront in Shaked’s mind in her polemic against the Supreme Court) no higher authority should be able to disallow or “derail” that “trip.” But if that’s the only kind of “destination” the government is allowed to set, if it cannot, for example, set itself the task of suppressing de-moralizing cultural tendencies, or establishing harmonious terms of interaction between the country’s different ethnic groups, wouldn’t that make it nothing more than a “contractor,” because other forces will then be setting the agenda in those areas, and the government will have nothing more to do than “lay the rails” where they say. Indeed, this question raises itself forcefully in the one area where Shaked lapses into a tentativeness uncharacteristic of the rest of the essay (and, indeed, Shaked’s political persona): Israel’s Jewishness.

Shaked’s leanings in political theory are a mixture of libertarian and neo-conservative lines of thought. It wouldn’t be too hard to figure out who she’s been exposed to (she draws heavily upon Milton Friedman in arguing for minimal government interference in the economy). She first attacks Israel’s Knesset (Parliament) for the cancerous growth of laws coming out of that body. She frames this in a very interesting way, although I don’t know if this is original to her: she says that every law the government passes is a vote of no confidence in its citizens, since it usurps from them the solution to some problem they might have worked out on their own. (She goes through quite a few particularly ridiculous and harmful laws, focused in particular on their effects on the ability of business to determine their own “destination” in their own sphere.) She attacks the Supreme Court by defining the function of the law in very a precise and minimal way: the law intervenes when there is a conflict, when the conflict may have led to some damage, and when at least one side of the conflict has standing to bring it before the judicial arbiter. The court is not simply to opine on the legality of laws on its own initiative. (Here she refers to Hamilton’s assessment on the judiciary as the weakest branch of government, controlling neither purse nor sword.) All this is really essential to any good government.

On to the Jewish Question. Israel is defined as a “Jewish State,” but it’s never been very clear exactly what that means, especially in law, beyond the right granted to all Jews worldwide to immigrate there. The Rabbinical establishment controls marriage law, but this is hotly contested and rarely put forward as an example of the Jewishness of the state—if it were possible to form a governing coalition without the religious parties this arrangement might be eliminated overnight. There is some explicit, and much tacit support for Israel’s Jewishness to be understood in ethno-statist terms—Jewishness as nationality, like Frenchness, Russian, etc. Much of the activity of the left in Israel seeks to combat this tacit definition. No one wants to define Israel as a Judaic state, though, as one governed by Jewish law. Shaked certainly doesn’t. She wants to insist on the compatibility of the Jewish character of the state along with its democratic character (the “Jewish and democratic” formulation has long been canonized in Israeli law and culture, with political arguments focused on whether to exacerbate or paper over the contradictions). She refers to the Jewish heritage going back to the Old Testament prophets, who criticized kings in the name of justice and the people; she discusses the importance of Jewish history and sacred literature to the modern republicanism that emerged out of Protestantism and the return to an “unfettered” reading of the Hebrew Bible. Shaked is drawing upon some important recent scholarship here, but all this is really well worn ideological territory and not very compelling, relying as it does on a very idealized and indeed modern understanding of the meaning of Judiasm and Jewish history (she doesn’t go anywhere near the whole “Tikkun Olam” nonsense, fortunately). She speaks of making the “Jewish” part of the state as substantial and interwoven with all its institutions as the “democratic” part, which for starters means the Jewish calendar being the state calendar, Jewish holidays being the state holidays, Hebrew being the dominant language, Jewish history being the history taught in school, etc., all of which is already the case.

Shaked does make one more interesting move, though: she recalls an argument made by the former Supreme Court Justice Menachem Elon that Jewish law should be used as a source of Israeli law (along with secular Israeli law, the British law in place during the Mandate, and even the Ottoman law preceding that). Depending on the composition of judges, this could involve a gradual incorporation of Jewish law into Israeli law, and then perhaps an awareness on the part of the rabbinical makers of Jewish law of their impact upon state law, leading them, in turn, to think of themselves as legislating indirectly for the state. This could de-ghettoize the legal thinking of at least some rabbis, and those rabbis could have their profile raised by the state, creating a virtuous circle. Since the “national religious” community is already the most powerful part of the electorate, and the fastest growing part of the population, with extensive cultural, religious and political institutions of their own, there is a constituency for these developments. A proposal for a return of the monarchy is not unthinkable under these conditions. How better to have a government that can determine its own destination, that is not just a “contractor”? In fact, on some authoritative accounts, the Jewish Messiah will simply be the king of the restored Jewish Commonwealth (he’s also supposed to be of the Davidic line, but perhaps that can be dealt with)—in other words, a completely rational “Messianic” politics is possible.

This clearly goes beyond anything Shaked, or any other contemporary public figure, would consider. But Shaked insists on foregrounding the Jewishness of Israel because only Israel’s Jewishness prevents its institutions from colluding with it being carved up by lushly funded international NGOs. She is right that this Jewishness needs to be given a content, and ethnicity won’t suffice because no political order can be derived from ethnicity. If one insists on sovereignty (the state as path-setter, and as possessing the means to follow that path) and Jewishness, if, in fact, the Jewishness of the state is perceived to come into contradiction with its democracy, the Israeli leadership would be faced with an interesting choice. What we see, in other words, is that once the question of sovereignty is made the highest priority, that question become a fulcrum that can turn around the rest of the social order, and initiate inquiries in possible reconstructions of the various traditions of that order. He who wants the end must want the means; so, what does he who wants sovereignty want?

I will add that Donald Trump’s speech to the UN on September 19, lays down a similar marker, making sovereignty central to international order. Of course, there are plenty of inconsistencies here as well, as Trump insisted that the US doesn’t impose its political form on other countries while calling for democracy all over the place. But, the question is the same: if you have to choose sovereignty or democracy, which do you choose? In Trump’s foreign policy, he seems to be choosing sovereignty: as analyzed by the blogger Sundance, the proprietor of the Conservative Treehouse blog, that foreign policy involves Trump using economic levers to compel larger states to take “ownership” of their patrons and rein them in—this in particular has been Trump’s approach to China vis a vis North Korea and Pakistan vis a vis Afghanistan. Implicit in this approach is a world order based on a hierarchy of sovereignties, with the higher level sovereigns supporting and constraining sovereignty on the lower levels. It’s not too difficult to imagine a new international law being written that would take into account these power differentials, and give all the major powers an interest in neither interfering in the others’ sphere nor using their own clients to nurture hostilities against rivals. The recognition that a leak in sovereignty in one place is a leak elsewhere, and perhaps ultimately everywhere, would spread. Insisting that other states exercise sovereignty (as long as one is not simultaneously undermining their sovereignty) has a moral justification that insisting they become democracies or expand human rights doesn’t. Perhaps at some point there will be the equivalent of a reformist vs. revolutionary debate within absolutism, or NRx more generally—the reformist (or gradualist) case will be that it is possible to form an elite constituency that takes sovereignty as the highest priority, and that such a constituency will find it necessary to become increasingly hostile to liberalism and democracy and will thereby decide what “they want.”

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