Can Israel be both democratic and Jewish. Discuss.
By Ted Belman
[Gershon Baskin wrote a major piece on this subject which I have inserted below. Here are my thoughts in response.]
The present law states “The Knesset Member shall fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic state.”
The proposed law according to Baskin “requires loyalty to the State of Israel as a “Jewish democratic state””.
There is no difference unless the existing law just requires them to act in a loyal manner whereas the proposed legislation requires an oath. Baskin argues “The current laws are more than sufficient to ensure loyalty to the state.”
But getting beyond the question of the oath, the problem lies in the potential conflict between being a democratic state and being a Jewish state.
When these values are opposed to each other, one must trump the other. So the first question is which one trumps the other. If the legislation does so provide then that’s the end of it until new legislation says otherwise. In the absence of any such provision, the Courts would favour democracy because for them that is the most important value. The Knesset must so determine if it wants the highest value to be a Jewish state even if it violates democratic norms.
But that is not the end of it. We must ask, what is meant by “democratic”? And what is meant by “Jewish”? In both cases there is a huge spectrum for each idea. The Knesset must decide on behalf of the people, the questions of how democratic and how Jewish.
Every country defines democracy for itself. To what extent do you protect the minority from the will of the majority. To what extent to you favour the rights of the individual over the rights of the group, to what extend to you protect private property from expropriation by taxation, to what extent are residents entitled to citizenship and what demands can you place on citizenship or citizens.
If the majority of the citizens decide that the demands of a state being Jewish take precedent over the demands of democracy, is that not democratic.
Baskin and all those on the left, deny this right to the people and want to adopt the norms of the western world. But even within that world there are many exceptions. They ignore that the majority of countries in the world don’t especially in Israel’s neighbourhood. They also don’t want the state to be a Jewish state. Thus they are biased and should recuse themselves from the discussion.
The issue isn’t whether the state is democratic, it really is about equal rights before the law. The two ideas should not be conflated. Human rights eschew discrimination and rightly so. But why can’t individuals be equal but separate.
As a democratic ideal why can’t you foster a system of three types of cities or neighbourhoods i.e. one for Arabs and one for Jews and other denominations and one for anyone. Thus why can’t the JNF support Jewish neighbourhoods with Jewish charity. Israel would be obligated to support each neighbourhood on the same per capita basis. But much of the revenue for neighborhoods and cities, comes from local real estate taxes. Thus some communities would be richer that others.
Why can’t the Law of Return be a Basic Law that all laws must be subject to just as they are subject to a constitution. Baskin is blowing the discrimination of the other citizens way out of proportion. He also bolsters his position by quoting from a number of luminaries.
Be that as it may, its for the people to decide.
By GERSHON BASKIN
Why is the Knesset debating a new bill, proposed by Foreign Minister Avigdor Lieberman’s Israel Beiteinu Party, that suggests changing the wording of the oath taken by MKs so that instead of swearing loyalty to “the State of Israel and its laws,” they will be required to vow loyalty to the State of Israel as a “Jewish democratic state”? The current laws are more than sufficient to ensure loyalty to the state. The initiative is little more than demagoguery, populism and a cheap political move aimed at getting headlines.
The current status of law on the issue of loyalty to the state is based on the “Rules of Ethics for Members of the Knesset, Chapter B: Basic Rules,” which states:
“The Knesset Member shall fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic state.” Furthermore, the Basic Law: The Knesset (Amendment No. 9) states: “Prevention of participation of candidates’ list: A candidates’ list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following: (1) negation of the existence of the State of Israel as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.”
In 1992, the Knesset passed the Basic Law: Human Dignity and Freedom. Section 1a declares that
“the purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”
Former Supreme Court president Aharon Barak offered the following interpretation of Israel as Jewish and democratic:
“The expression ‘Jewish and democratic’ does not imply two opposites, but rather their being complementary and harmonious… Indeed, the state is Jewish not in the religious-halachic sense, but in the sense that Jews have the right to migrate there, and that their national being is reflected in the being of the state (the matter finds expression, inter alia, in language and in days of rest). The fundamental values of Judaism are the fundamental values of the state – namely, love of man, the sanctity of life, social justice, doing what is good and right, preserving human dignity, the rule of law, etc. – values bequeathed by Judaism to the entire world… the values of the State of Israel as a Jewish state cannot be identified with Jewish law. One must not forget that a sizable non-Jewish population lives in Israel. Indeed, the values of the State of Israel as a Jewish state are those same universal values that are common to democratic societies, which emerged from Jewish tradition and history.”
ALL MODERN nation-states have minorities living in their midst. France is the nation-state of the French people, but it is also the state of all of the descendents of former Algerians born there. Likewise, Germany is the nation-state of the German people, as well as all of the children of former citizens of Turkey who were born there.
Twenty percent of Israel’s citizens are not Jewish by national or religious definition, but they were born here, and the State of Israel is theirs as well. That is why David Ben-Gurion included in the Declaration of Independence:
“We appeal – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the up-building of the state on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.”
The country’s first president, Chaim Weizmann, said:
“I am certain that the world will judge the Jewish state by what it will do with the Arabs, just as the Jewish people at large will be judged by what we do or fail to do in this state where we have been given such a wonderful opportunity after thousands of years of wandering and suffering.”
The Palestinian citizens of Israel cannot identify with it as the state of the Jewish people. They can, however, accept it, if their basic rights as full citizens are in turn accepted by the state. The Jewish nation-state must relate to its non-Jewish citizens as equal in all respects. It must recognize the particular difficulties faced by its Palestinian citizens as a result of the Israeli-Palestinian conflict, and must demand that they remain law-abiding citizens – this is reasonable and is, in fact, the reality. To demand “loyalty,” meaning identification with the Jewish flag and national anthem, is not only impractical, it is asking for them to voice disloyalty at a time when their fundamental demand from the state is to recognize them as full citizens. Palestinian citizens, in their complaints of discrimination, are essentially demanding the right to be Israelis.
THIS DISCUSSION begs for us to clarify what is meant by the notion of a Jewish state. There is too much confusion in Israel not only on the questions concerning the axis of Jewish and democratic, but also on the concept of Jewish state or state of the Jews. In his book The Jewish State Theodor Herzl wrote: “We are a people – one people… I think the Jewish question is no more a social than a religious one, notwithstanding that it sometimes takes these and other forms. It is a national question.”
The Declaration of Independence states: “The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped… the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country… The Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and the Land of Israel and to the right of the Jewish people to rebuild its national home…”
ISRAEL IS a nation-state; it is not a religious state or the state of a religious group. The intention of the Zionist movement in calling for the creation of a state for the Jewish people was not to create a state for the Jewish religion. Israel is a civil state, and its laws are civil laws, not religious laws (with the exception of laws of personal status which have been inherited from the Ottoman Empire, and the time has come to remove that exception).
The confusion between Israel as a Jewish state and Israel as the nation-state of the Jewish people is one shared by Jews and non-Jews alike. The terms are used almost interchangeably, and that has caused confusion. There is also an ideological argument between those who use the differing terms, even if at times they are not fully aware of the differences. Those, such as the current minister of justice, who would like to see the laws of the state be based on Halacha, refer to the Jewish state with its religious connotation. Those who understand modern international law and have a comprehension of the legal basis on which Israel was founded understand the importance of the definition of Israel as the nation-state of the Jewish people.
THE DECLARATIONS of the State of Israel and the state of Palestine both base their legal right to exist on UN Resolution 181, which partitioned Palestine into two states – a Jewish state and an Arab state. The UN resolution was speaking about two nation-states, and in that context former foreign minister Tzipi Livni declared: “That’s why I support the establishment of a Palestinian state, on condition that it will be the national solution for all the Palestinians, just as Israel is the national solution for all the Jews.”
And why in his Bar-Ilan speech, Prime Minister Binyamin Netanyahu repeatedly referred to Israel as the national homeland of the Jewish people and called on Palestinians to recognize it as the nation-state of the Jewish people.
Peace between the State of Israel and the future state of Palestine will be based on two nation-states for two peoples, and just as there is a sizable Palestinian minority in the state of the Jewish people, we can all hope that there will be a sizable Jewish minority in the state of the Palestinian people, all living in peace, democracy and equality.
The writer is co-CEO the Israel/Palestine Center for Research and Information, and an elected member of the leadership of the Green Movement party (www.ipcri.org).