Israel a Jewish and Democratic State

Spotlight By Jeremy Saltan*

Israel a Jewish and Democratic State

Israel is writing its constitution in chapters. Now that the democratic aspect of the state, both institutionally and substantively, has been enshrined in its constitution, it is time to weigh in on what the Jewish part means.

Israel a Jewish and Democratic State To better understand the significance behind Israel’s new Nation State Law one must understand the historical background and context that led to its passing. Once we establish what led to the passing of a law that defines the Jewish character of Israel, we can understand the practical impact now that the law enjoys constitutional status.

On 29 November 1947, the UN General Assembly adopted Resolution 181, also known as the Partition Plan. The international community approved the plan that called for the partition of the British-ruled Mandate into a “Jewish state” and an “Arab state”. The resolution was accepted by the Jews living under the mandate, yet it was rejected by the Arabs living under the mandate and the surrounding Arab states.

On 14 May 1948 the Israeli Declaration of Independence proclaimed: “by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a “Jewish State” in Eretz-Israel, to be known as the State of Israel.”

On 13 June 1950 the Israeli Knesset passed the “Harari Decision” that determined “the (Israeli) constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law.”

From 1958 until 1988, the Israeli Knesset passed nine Basic Laws that determined the democratic institutions of the country. It enshrined within constitutional law Israel’s legislative, executive and judicial branches of government. Other democratic institutions and extensions of government that received this special constitutional status under Israeli law included the President, the State Comptroller, the capital, the military, the economy and the land.

In 1992 the Knesset passed two basic laws, “Basic Law Human Dignity and Liberty” and “Basic Law Freedom of Occupation”, that determined the individual rights of Israel’s citizens. These vital Basic Laws provided individual rights to all citizens on a constitutional level; it went beyond Israel’s institutional democracy that was anchored in the separation of powers; and enshrined Israel as the first Middle Eastern country to join the club of liberal democracies. Both Basic Laws defined the State of Israel as a “Jewish and Democratic state." However, on a practical level, what does it mean that Israel is a Jewish and Democratic State? This is a question Israelis have been asking since enshrining its democratic values in 1992.

In 2011, MK Avi Dichter, who was then serving as a member of the now defunct centrist Kadima party led by current Opposition Leader Tzipi Livni, proposed the initial version of Israel’s Nation State Bill. Immediately questions were raised on how a Basic Law that defines Israel’s characteristics as a Jewish State would impact both Israel’s internal functioning and external relations. Most of the debate focused on the internal impact of the bill on Israel’s democratic credentials. Others focused on the potential external impact on Israel’s ties with nations in the Arab world that had become closer to Israel in recent years. The arguments against the proposal have been well documented. The arguments for the bill, less so.

One of the main arguments in favor of the proposal is that Israel was founded as a Jewish and Democratic State. Israel is writing its constitution in chapters. Now that the democratic aspect of the state, both institutionally and substantively, has been enshrined in its constitution, it is time to weigh in on what the Jewish part means. The concept of a Jewish State is rooted in the terminology of the United Nations Resolution that was used as the foundation for the State of Israel. It has been echoed by the Declaration of Independence and in Israeli constitutional law.

The question at the center of the debate is how we should define a Jewish State. Does a Jewish State mean a religious state based on the Jewish religion and the Jewish law, called Halacha? Does a Jewish State mean a secular state that is based on Jewish culture and tradition? A Jewish ethnic state for the Jewish people? A democratic nation state for all who define themselves as Jews while still providing individual rights for minorities? Israeli leaders were divided on resolving that question. It was difficult to reach a consensus on choosing one or perhaps a combination of the above options.

For close to seven years following Dichter’s proposal, this issue was debated among Israeli lawmakers and the public. Most of the Jewish parties and their voters supported the concept of the Nation State Bill but argued over various versions of the bill. This was not just a government initiative, as was seen when leading opposition figures such as Yair Lapid and Tzipi Livni proposed their own versions. There was a consensus among most Jews that there should be a law, yet bitter arguments arose around the content of such a law. The majority of Arab lawmakers objected to the concept of a Jewish and Democratic State and has been openly supporting a different model for Israel - a state for all of its citizens. Their argument was that Israel must choose between being Jewish and being democratic. They stressed it was impossible to be both.

Before the new law, back in 2002, in one of his famous rulings, Israeli Supreme Court Chief Justice Aharon Barak, the man who led the Israeli Constitutional Revolution of the 1990s, defined the minimal interpretation of what it means to be a Jewish State: "What, then are the 'core' characteristics shaping the minimum definition of the State of Israel as a Jewish State? These characteristics come from the aspects of both Zionism and heritage. At their center stands the right of every Jew to immigrate to the State of Israel, where the Jews will constitute a majority; Hebrew is the official and principal language of the State and most of its fests and symbols reflect the national revival of the Jewish People; the heritage of the Jewish People is a central component of its religious and cultural legacy".

When one compares the historic Barak ruling to the Basic Law, there are many similarities. The new Basic Law declares, “Israel is the historic homeland of the Jewish people in which the State of Israel was established”. It continues, “the state of Israel is the nation-state of the Jewish people, in which it fulfills its natural, religious, and historic right to self-determination.” Additionally, the law states, “the fulfillment of the right of national self-determination in the State of Israel is unique to the Jewish people.”

The Basic Law determines that the national flag, national symbol, national anthem, national holidays, national rest days, and national capital remain symbols of the Jewish heritage. It preserves the principle language and calendar as Hebrew, the right of all Jews to return to their homeland, the connection of Israel to the Jewish diaspora and promotes Jewish settlement as a national value.

The main takeaway when one reads these clauses is that indeed national rights are granted exclusively to Jews. However, prior Basic Laws already grant individual rights to all citizens. To ensure that this new Basic Law is not used to discriminate against the individual rights of non-Jews, additional clauses were added. On the sensitive topic of language, it states, “the Arabic language has a special status in the state; the regulation of the Arab language in state institutions or when facing them will be regulated by law. This clause does not change the status given to the Arabic language before the Basic Law was created.” Regarding holidays: “those who are not Jewish have the right to honor their days of rest and their holidays. Details concerning these matters will be determined by law.” Additionally, “the secular calendar will serve as an official calendar”.

The individual rights of non-Jews remain protected as mandated by the 1994 amendment to the Basic Law Freedom of Occupation: “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.”

It is also vital to note that all of the national rights mentioned in the Basic Law are taken from existing Israeli laws. The active element of the Basic Law was collecting the various national rights that already existed in Israeli law and joining them together into one document that grants them a constitutional status that they did not enjoy beforehand.

What the Basic Law Nation State did was determine what it means to be a Jewish State. By extension it also determined what it means to be a Jewish and Democratic State. It protected the existing language in Israeli law that grants national rights exclusively to Jews with a new constitutional status. Neither did it impact the individual rights of non-Jews, nor did the new law grant additional national rights to Jews. It will be up to Israel’s friends and foes to determine if the correct balance was reached between Israel’s Jewish and democratic characters and if it is even possible to balance the two.

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Diplomatist Magazine was launched in October of 1996 as the signature magazine of L.B. Associates (Pvt) Ltd, a contract publishing house based in Noida, a satellite town of New Delhi, India, the National Capital.