Israël, un Etat juif et démocratique (Loi fondamentale, 1992)

In May 2009, MK Israel Beitenu’s David Rotem created a controversy in deposing a bill on Knesset agenda requiring that those who wish to retain Israeli citizenship would have to declare their loyalty to Israel as a Jewish State. The ministers rejected this bill because it would harm the feelings of the non-Jewish citizens of Israel. The same MK reiterated his attempt in January 2010 towards the MKs who will be required to vow their loyalty to Israel as a Jewish and Democratic State. This happened after a rally at Gaza strip’s border where Israeli Arabs heard a speech delivered by Hamas leader Ismail Haniyeh through an Arab MK cell phone. These events are connected and show all the contradictions of the State of Israel as a Jewish state with a hostile minority within its borders.

It is true that every human society is characterized by tensions and contradictions. The aim of every society is to make a subtle balance between all its components. One of the major tension which go through the Israeli society is the claim made in 1992 that Israel is a “Jewish and democratic State”. Citizenship is the foundation of the modern societies, and therefore it tends to be universalistic. But in the same time, Israel, as the product of its History, as the results of conflicts, pretends to be a Jewish State. There is a tension between the democratic trend and its universalistic values and the Jewishness of the State with its own sense of identity. The question is then how to deal with these contradictions without breaking up the State?

In order to answer this problematic, I will follow three main tracks. Firstly, I will examine the foundations values of the State of Israel. From there, I will explore Israel as a Jewish State, and then conclude with the Israeli dilemma: how to reconcile the irreconcilable[1]?

1. How Israel is defining itself?

Not surprisingly, the Declaration of Independence of the State of Israel claims above all the rights of the Jewish people to be “the masters of their own fate, like other nations, in their own sovereign State”. After the formal declaration, the core of this text, “the establishment of a Jewish State in Eretz-Israel, to be known as the State of Israel”, the text carries on with the values on which this new State will be established.

Created by the United Nations, the State of Israel positions itself under the international law which rules the countries which signed up the San Francisco Charter of the United Nations in June 1945. That means that it adopts the general values of the U.N., because it “will be faithful of the principles of the Charter of the United Nations” [2].

Israel is a State opened to Jewish immigration (“Ingathering the Exiles”). It is based on “freedom, justice and peace [as] envisaged by the Prophets”. This sentence is very interesting, because it identifies the general democratic values (freedom, justice and peace), as issued by the U.N. with the inner values of Judaism, more specifically that of the Prophets. Israel is a democratic State which grounds its values in the Prophetic message. Moreover, it calls for peace and “extend our hand to all neighboring states and their peoples in an offer of peace and good neighborliness”.

The declaration acknowledges the fact that different types of people are living in the territory of the State of Israel. Directed connected to the U.N. and Prophetic values, Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture”. These words are deriving directly from the 1945 Charter of the United Nations. But it adds something strictly connected to the particular situation of this region of the Middle East. Israel “will safeguard the Holy Places of all religions”.

This declaration is perceived as the fundamental basis of the State of Israel. Israel does not have a constitution but 11 Basic Laws. That means that all these Basic Laws have been adopted in accordance with this declaration. Moreover, it is the ground of the work of the Supreme Court which examines if a law is compatible with the principles of the declaration.

The expression “Israel as a Jewish and democratic State” appears only in 1992 Basic Law adopted by the Knesset: Human Dignity and Liberty. This is how this Basic Law states:

-          1 : 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.”

-          2: 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”. 

This law is completed by an other one: the Freedom of occupation. Both, they have a special status in the Israeli legal system, because the courts have the right to disqualify any law contradicting them. Alongside with the 1948 Declaration, they represent the fundamental basis of the Israeli public values. These values take roots in the Western conception of democracy, the tendency towards universalism, absolute of total equality between the citizens; they also take roots in the sense of identity of the Jewish people.

2. Israel, a Jewish State

The State of Israel is the result of a political plan with values and objective realities: the defense of the Jewish people, break-up with exile, and birth of the New Jew. It is a distinctive plan combining a people, a land, and the rabbinic tradition. It is in this respect in some way contradictory with the universalism of democracy, inclusive, beyond the differences and opened to all the individuals[3].

The Zionist project which led to the establishment of Israel is originated from the Enlightened Europe, in the context of the European nationalism, secular, but also from the Jewish people in all its dimensions, including the religious ones, the rabbinic tradition, the sacred texts which delimit the notion of people and land. The secular and religious aspects of the definition of Jewish people and the Zionist plan are interlinked and explain the contradictions inherent to Israel. We witness the last decades a weakening of Zionism and the challenges from the part of the new historians who call into question the national narrative, and from the part of the critical sociologists and their calling into question of the Zionism and the Ashkenazi establishment. This inner crisis is also connected to the wider crisis of nationalism around the world. It arises two major issues: the growing power of the religious, and the questioning of the Jewish identity.

An Israeli Jew belongs to the Jewish people. In the same time, he is an Israeli citizen. But he shares also this citizenship with people who are not Jewish. Being a Jewish citizen, he is part of the majority within the different groups inside the Israeli citizenship. This creates different levels of self-definition which may be sometimes conflicting. An Israeli Jew internalizes the Jewish peoplehood and the Israeli nationhood. The way from people to nation is the way from a simple people to a people which has a territory. And within the Israeli nationhood coexist a wide range of groups with their own cultural backgrounds. This fact is true for the Jewish population as well as for the non-Jewish population. The Jews are coming from very different backgrounds, from all the parts of the Diaspora. Most of them are originated from Eastern and Central Europe, but also from the Oriental world (North Africa, Middle East) or Ethiopia. They all came with their own traditions and are supposed to merge in a new nation. To a large extent, Zionism succeeded in creating a Jewish nation in Israel where people share more in common than what divides them.

It is interesting that, in Israeli terms, being Jewish has an ethnical meaning. It is opposed to the non-Jewish population: the Arabs, Druses and Bedouins. These are the major minorities in Israel. The most judgmental are the Arabs who are between Israeli citizenship and Arab nationhood, in this context, Palestinian nationhood. They are sometimes perceived as a demographic threat, but in 1948, they were only 20 % of the Israeli population; and the rate is more or less the same today.

In a certain way, the multi-ethnicity of this country is part of its History. Since the Biblical times, the region is characterized by its plurality, and Israel is only the latest layer. But this character of the Israeli society challenges the identity of Israel as a Jewish and democratic State. Hence derives my question: to reconcile the irreconcilable?

3. The Israeli Experience: Reconciling the Irreconcilable?

I would like to explore three tracks to try to find an answer, at least the beginning of one, for this issue. Firstly, Israel is facing a huge challenge with its minorities, mainly the Arab minority. Secondly, the relations between Religious and Seculars are calling into question the two aspects of Israel as a “Jewish and democratic State”. In the end, I would like to summarize all what I said and make an attempt to define what can be called “The Israeli model”.

The first Zionists had to deal with the presence on the soil of Palestine of an Arab population. They never neglected the Arab question as could indicate this simple claim: a people without a land for a land without a people. Herzl, in his Jewish State thought that the Arabs would have benefit from the presence of Jews in Palestine.

Ahad Ha’am acknowledges the rights of Jews to settle in Eretz Israel, but they also have to take into account the Arab’s rights, “the other inhabitants of the land who possess the very real right derived from living in the land and having cultivated it for countless generations. This land is also their national home […] this situation, therefore, makes Palestine the joint possession of different nations”[4].

We can hardly assume an Arab nationalism at the end of the 19^th century. It is only after 1914, when the Ottomans started to define themselves as Turks that in opposition to this the Arabs started to define themselves in nationalistic ways. The first Israeli Labor governments in the first decades of the State acknowledged that Arabs had rights in Palestine, but not over Palestine.

Today, the Arab minority has the feeling that it is not accepted with full and equal rights within the society. The challenge therefore is to be at the same time a Jewish State and the State for all its citizens. To what extent are all the components of the society fully and equally treated? Israel is de facto a multi-cultural country in which the different groups have rights, schools etc. but this is not perceived as a right to be equal and different, but leading to inequality. And I am not speaking of the Arabs in the territories. It is a different problem. Nevertheless, the occupation by Israel of territories is also problematic for two main reasons. Firstly, it is against the international law which is the basis of the values of the State. Secondly, it leads Israel to dominate a population which part of it lives inside Israel[5]. These issues are also shared by other democratic countries which are in the same situation, mainly the U.S.A. These countries have to produce a list of arguments which justify this situation. And it shows also the gap between the democratic ideal and the current reality.

The relations between the religious and the seculars are also a challenge for Israel as a democratic and Jewish State.

In September 1947, David Ben-Gurion reached a status quo agreement with the orthodox Agudat Yisrael party. He sent a letter to the party stating that he is committed to establish a non-theocratic country. But he also promises that Shabbat will be Israel’s official day of rest, that in State provided kitchens, there will be access to kosher food, and that in Jewish familial affairs, the State legislation will correspond to the religious patterns. This letter is considered as the benchmark of State and Religion relations.

This show the prudence or indulgence of the Secular authorities regarding the religion. To a large extent, the secular authorities always seek the approval of the rabbinate. Israel is a mixture of traditional aspects, like the festivals, the calendar, the collective rhythms, and even the language, with more secular aspects, like what can be called the “Civil Religion of Israel”, commemorations of national events, Independence Day, Yom hazikaron etc.

With the growing impact of the religious parties, the status quo became more critical. The rabbinical courts decide who is Jewish, which has an impact of the Law of Return. They are the only authorities to define the personal status, marriages, divorces etc. Recently, the Israeli newspapers recorded the issues with the Zionist religious yeshivot in the Territories which advised their students not to help in case of withdrawals; or the issue of the education in the haredi schools.

This situation is creating a growing gap between Religious and Seculars. To what extent a democratic State could accept disparities between men and women, as it is the case in rabbinic courts? To what extent a democratic State could accept that the personal status of its citizens is only defined by the religious law? To what extent a democratic State could accept that the only definition of its citizens is a religious one? During the debates over the Law of Return, David Ben Gurion asked some Jewish scholars to answer this simple question: who is Jew? And finally the only accepted answer was according orthodox Halakhah. The reason was to avoid a gap within the Jewish people. Israel is not regarded as legitimate enough to legislate for the Jewish people as a whole. Moreover, when the Knesset extended the right for return to children and grandchildren of a Jew in 1970, it created problems for Russian Jews who are accepted as citizens by the State of Israel, but not as Jews by the rabbinate.

This issue is maybe the more central in the tensions between Israel as a Jewish State, and Israel as a democratic State. Democracy is based on universalistic values of freedom, individual rights, and the Tradition is based on the authority of the past, of the religious process.

How could we define the Israeli model?

As stated at the beginning, Israel is facing the same tensions, problems, that other democratic country, being between universalism of democratic values and sense of identity of Judaism. Moreover, the presence of minorities challenges the Jewish definition of the State of Israel.

Israel has no written constitution. It has eleven Basic Laws which define the outlines of the Israeli democracy. Usually, a constitution has in its beginning a statement of principles. This role is played by the Declaration of Independence. It is the ground basis of the country’s values.

Israel lives a constant compromise between all its components, and the goal is to avoid a breaking up in the historical continuum of the country. The Supreme Court plays a very important role. It is at the head of the Israeli judicial system and serves as an appellate court as well as the High Court of Justice. In this second role, called in Hebrew בג''ץ, the Supreme Court examines the legality of decisions of State authorities. In the 1980’s and the 1990’s the Supreme Court established its role as protector of human rights, intervening to secure freedom of speech freedom to demonstrate, reduce military censorship and promote equality between the different sectors of the population. The religious sectors of the Israeli society reckon that it works against their interests. But, if we consider the Israeli society as a whole, or even the Jewish people as a whole, the Supreme Court protects the rights of each individual, and also helps to make the balance between the two aspects of the Israeli self-definition: Israel as Jewish and Democratic.

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[1] This paper is mainly based on what I learned during this year, and also on notes I have taken from lectures by Dominique Shnapper, a French sociologist, Emanuel Halperlin, a French-Israeli journalist, and Denis Charbit, a French-Israeli scholar at the Open University in Tel Aviv.

[2] The Universal Declaration of Human Rights will be adopted only in December 1948.

[3] Maybe my conception of democracy is influenced by my French background.

[4] Ahad Ha’am, preface to the third edition of At the Crossroads, 1880.

[5] I am not taking position over this issue. I am only trying to examine it through the lenses of the topic.