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:

"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."

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Aharon Barak

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.