Jewish or Democratic? Israel’s Former Top Judge Reflects on Values

Some people say a state that is both Jewish and Democratic is an oxymoron, but the values can work together.

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Reprinted with permission of The Forward.

The values of Judaism and democracy have broad jurisprudential importance in Israel. They have constitutional status, influencing both the determination of the extent of human rights and the protection accorded them in Israeli jurisprudence. 

The Values of the State of Israel

The phrase “the values of the State of Israel as a Jewish and democratic state” entered into Israeli law in 1992 with the enactment of two Basic Laws governing, respectively, freedom of occupation and human dignity and freedom. The Basic Laws, 11 in total, serve as the de facto constitution of Israel. Israel’s Jewish and democratic values are accorded supralegal-constitutional status and serve as a legal yardstick by which to measure the applicability of the Basic Laws.

The phrase “the values of the state of Israel as a Jewish and democratic state” is an imprecise term. The text does not radiate an unambiguous answer. The determination of the extent of applicability of this phrase will occupy us extensively in the future. When I say “us,” I mean Israeli society as a whole, and not just its jurists.\

democracyIndeed, the phrase “the values of the state of Israel as a Jewish and democratic state” as it appears in the Basic Laws reflects the uniqueness of the State of Israel and of Israeli society. We are not like all the nations, and we are not like all the peoples. We are a democracy, and our values are like the values of any democratic state. But we are also a Jewish state, and as such our values are the values of a Jewish state.

Israeli society as a whole must come to grips with this duality. Intellectuals and researchers, rabbis and professors, students in yeshivas and universities–every sector of Israeli society–must ask themselves what are the values of the state of Israel as a Jewish and democratic state. We expect as well the contributions of intellectuals and researchers from around the world.

What is a Jewish State?

The values of the state of Israel as a Jewish state set it apart from the rest of the democratic nations. There are many democratic states in the world. But only the State of Israel is a democratic, Jewish nation. It is worth quoting the words of our declaration of independence:

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Aharon Barak is a professor of law at the Interdisciplinary Center Herzliya, and a lecturer in law at the Hebrew University of Jerusalem, Yale Law School, and the University of Toronto Faculty of Law. He was President of the Supreme Court of Israel from 1995 until the middle of 2006. Legal scholars have called him the "John Marshall" of Israel.

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Reprinted with permission of The Forward.

The values of Judaism and democracy have broad jurisprudential importance in Israel. They have constitutional status, influencing both the determination of the extent of human rights and the protection accorded them in Israeli jurisprudence. 

The Values of the State of Israel

The phrase “the values of the State of Israel as a Jewish and democratic state” entered into Israeli law in 1992 with the enactment of two Basic Laws governing, respectively, freedom of occupation and human dignity and freedom. The Basic Laws, 11 in total, serve as the de facto constitution of Israel. Israel’s Jewish and democratic values are accorded supralegal-constitutional status and serve as a legal yardstick by which to measure the applicability of the Basic Laws.

The phrase “the values of the state of Israel as a Jewish and democratic state” is an imprecise term. The text does not radiate an unambiguous answer. The determination of the extent of applicability of this phrase will occupy us extensively in the future. When I say “us,” I mean Israeli society as a whole, and not just its jurists.\

democracyIndeed, the phrase “the values of the state of Israel as a Jewish and democratic state” as it appears in the Basic Laws reflects the uniqueness of the State of Israel and of Israeli society. We are not like all the nations, and we are not like all the peoples. We are a democracy, and our values are like the values of any democratic state. But we are also a Jewish state, and as such our values are the values of a Jewish state.

Israeli society as a whole must come to grips with this duality. Intellectuals and researchers, rabbis and professors, students in yeshivas and universities–every sector of Israeli society–must ask themselves what are the values of the state of Israel as a Jewish and democratic state. We expect as well the contributions of intellectuals and researchers from around the world.

What is a Jewish State?

The values of the state of Israel as a Jewish state set it apart from the rest of the democratic nations. There are many democratic states in the world. But only the State of Israel is a democratic, Jewish nation. It is worth quoting the words of our declaration of independence:

“In the Land of Israel the Jewish people arose. Here its spiritual, religious and political character was forged, here it lived a life of national independence, here it created its national and universal cultural treasures and bequeathed to the entire world the eternal Book of Books.”

A “Jewish state” is, as it were, the state of the Jewish people. “It is the natural right of the Jewish people to live like every other nation as a free people in its own sovereign state. A state to which every Jew is entitled to ascend and in which the ingathering of the exiles is among the most basic values.”

A Jewish state is a state whose history is bound up with the history of the Jewish people, whose principal language is Hebrew, and whose main holidays reflect its national mission. A “Jewish state” is a state which counts the resettlement of the Jewish people in its fields, its cities and villages among its highest concerns. A “Jewish state” is a state that embodies the memory of the Jews who were slaughtered in the Holocaust, and whose purpose is to be a “solution to the problem of the Jewish people lacking a homeland and independence through the renewal of Jewish statehood in the Land of Israel.”

A “Jewish state” is a state that fosters Jewish culture, Jewish education, and love of the Jewish people. A “Jewish state” is a state whose values are the values of freedom, justice, righteousness and peace within the Jewish heritage. A “Jewish state” is a state whose values are drawn from its religious tradition, in which the Bible is the most basic of its books and the prophets of Israel are the foundation of its morality. A “Jewish state” is a state in which Hebrew jurisprudence fulfills an important role, and in which matters of marriage and divorce of Jews are determined according to the rules of the Torah. A “Jewish state” is a state in which the values of the Torah of Israel, the values of the Jewish tradition and the values of halakhah [Jewish law] are among the basic values.

Finding a Common Denominator Between Judaism and Democracy

We must aspire to find a common denominator and a synthesis between the values of the State of Israel as a Jewish state and its values as a democratic state. In analyzing the values of the State of Israel as a Jewish and democratic state and balancing among them, we must take into consideration the many non-Jews who live among us.

In truth, Jews are given a special key to enter the State of Israel. This is the essence of Zionism, and this the essence of our Jewish tradition. This need not entail discrimination against those who are not Jewish. Indeed, when an essential goal embodied in the founding of the state is that it will serve as a national home to Jews wherever they are, giving the right of aliya to Jews does not entail discrimination against those who are not Jews. It entails recognition of difference without discrimination.

Equality is a Complex Right

The declaration of independence called to “the children of the Arab nation living in the Land of Israel to keep the peace and take part in the building of the state on the basis of full and equal citizenship.” Zionism was not based on discrimination against non-Jews, but on their integration into the Jewish national home. Zionism was born as a response against discrimination and racism. Certainly the values of the State of Israel as a democratic state stand opposed to discrimination and demand equality. Indeed, the democratic state is obliged to honor the basic rights of every individual in the state to equality, and to protect them.

But equality is a complex right. Treating individuals in a different manner does not always imply treating them in a discriminatory manner, and nor does treating individuals in an identical manner automatically imply treating them in an equal manner.

Equality is not absolute, and may be infringed upon. But that is only in the context of a law that maintains the values of the State of Israel, which is intended for a valid purpose and does not exceed that which is necessary.

Equality is spread over every aspect of life in Israel. Therefore equality must be maintained between people who belong to differing religions, nationalities, ethnic groups, races, parties, sexes, ages, viewpoints and physical capacities. This list is neither complete nor comprehensive. Permit me to concentrate on one context of equality–equality between religions and nationalities. The declaration of independence addressed this equality when it declared that the State of Israel would preserve equality among its citizens “without regard for religion, race or gender.”

The claim is heard that this application of the principle of equality between Jews and Arabs spells the end of Zionism, or that it embodies a post-Zionist attitude. Nothing could be further from the truth. Zionism is not based on discrimination between Jews and Arabs. That is not how the declaration of independence saw it when it called on “the children of the Arab nation who live in the State of Israel to keep the peace and assume their share in the building of the state on the basis of full and equal citizenship”; that is not how the founding fathers, Theodor Herzl, Ze’ev Jabotinsky, David Ben-Gurion and others, saw it when they repeatedly emphasized that the Jewish state was a state in which full equality between Jews and Arabs would prevail; that is not how the Supreme Court saw it from its earliest days, when it repeatedly emphasized equality between citizens of the state on the basis of religion, race, and gender.

Of course, the principle of equality itself, by its essence, permits–in cases where circumstances require it–differing but non-discriminatory treatment among equals, such that it is permissible to infringe on equality under certain defined conditions.

Only a national home built on foundations of equality and respect for the individual can endure over time. Only a state that relates in an equal manner to all its children can win acceptance in the society of freedom-loving nations. Only a society based on principles of equality can live in peace with itself.

It Is Hard to be a Jew

As Sholom Aleichem used to say, it’s hard to be a Jew.

I was born in 1936 in Kovno, Lithuania. In 1941 I was put into the ghetto. Out of thousands, only a few survived. My life was saved by a non-Jewish Lithuanian, a righteous gentile.

What have I learned from all this?

First, the centrality of the State of Israel and its Jewish character in the life of the Jewish people, and the need to guarantee the future, security and welfare of the Zionist state and its Jewish character. Second, the centrality of humankind, whose dignity was trampled by the Nazis and their collaborators, but who managed to survive under the most difficult circumstances.

In my view the State of Israel is the state of the Jewish people. It must be secure and strong, immigration must be increased and Zionism strengthened. At the same time, and with no contradiction, the state must defend the dignity and freedom of every person living within it, whether Jewish or not.

It is with this feeling that I enter the halls of justice every day, for I know as I sit in judgment, I myself am judged.

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