Opinion

Individual Freedom in a Jewish and Democratic State

The fate of the State of Israel was placed in our hands. We must do everything possible to preserve and protect it

Aharon Barak
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Israeli Independence Day on the Tel Aviv beach, 2 May 2017.
Israeli Independence Day on the Tel Aviv beach, 2 May 2017.Credit: Tomer Appelbaum
Aharon Barak

Dual-value objective

With the enactment of Israel’s Basic Law: Human Dignity and Liberty and of Basic Law: Freedom of Occupation, the concepts of “Israel’s values as a Jewish and democratic state” were introduced into the country’s legal system. These concepts have a three-fold significance.

First, they determine the general foundational objectives of these two Basic Laws. These concepts set out the scope of the rules and norms prescribed by these laws, and by extension, determine the objective purpose of the entire Israeli legal system.

Secondly, these concepts determine the constitutional criteria for limitations put on laws that infringe on constitutional rights. The limitation clause in the two Basic Laws determines that, “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” A law that infringes on a constitutional right is itself constitutional only if it meets the requirements of the limitations clause, including the requirement that the offending law is compatible with Israel’s values as a Jewish and democratic state.

Thirdly, these concepts embody the vision and the fundamental beliefs of the State of Israel, as enshrined in the Declaration of Independence. This vision and fundamental beliefs shape and limit in an interpretive manner the extent of freedom of deliberation given to the Knesset as the constituent assembly, when it comes to enacting Basic Laws that do not comply with the minimal requirements which are congruent with Israel’s values as a Jewish and democratic state.

Thus, the statement “Israel’s values as a Jewish and democratic state” has an important and essential normative charge to it, one with constitutional standing. This explains the great importance in answering the questions of what the values of the state as a Jewish and democratic state are and how these values are determined.

The values of the state as a Jewish state

New immigrants from U.S. are greeted at Ben-Gurion Airport, 2014.
New immigrants from U.S. are greeted at Ben-Gurion Airport, 2014. Credit: Shahar Azran

Israel’s values as a Jewish state differentiate it from other democratic states. There are many democracies around the world. Only Israel is not just a democratic state but a Jewish one as well. “The Jewish state” is the state of the Jewish People; it is a state to which any Jew has a right to immigrate – the ingathering of the exiles being one of its basic values. It is a country whose history is intertwined and integrated with the history of the Jewish People; the primary language is Hebrew; and its main holidays reflect its national resurgence. It is a state in which the settlement of Jews in its rural areas, cities and towns is of prime concern. It is a country which commemorates Jews who were slaughtered in the Holocaust, a state designed to serve as “the solution to the problem of a nation with no homeland or independence, a solution brought about through the renewal of a Jewish state in the Land of Israel.”

It is a country which fosters Jewish culture, Jewish education and a love of the Jewish nation; it is a state in which the values of liberty, justice and peace, which are part of its heritage, are fundamental values; it is a state for which the Bible is its seminal book and where the vision of Israel’s prophets serves as the basis of its morality; it is a state in which Hebrew law fulfills an important role. A Jewish state is a state whose values are those enshrined in the Torah, derived from Jewish heritage and inspired by halakha [traditional Jewish law], and these are its core values.

Such a conceptualization of the state’s values as a Jewish state leads to the conclusion that these values have two main aspects: a Zionist one and a halakhic one. Both Zionism and halakha have left their mark on Israel’s Jewish character. These values are apparent on different levels, ranging from specific rulings on particular issues to abstract values, such as “loving one’s neighbor as one loves oneself” or the pursuit of honesty and good. They include values that are particularistic and universal, values that have evolved throughout generations of Jewish history. They include complementary values and contradictory ones. They contain an entire world.

Israel’s values as a democratic state

Election ballot box.
Election ballot box. Credit: Tomer Appelbaum

The concept of “Israel’s values as a democracy” is a complex one. Democracy is based on two pillars. One is the sovereignty of the people. This sovereignty is executed through elections that are free and equal and held at regular intervals, in which people elect representatives who will carry out their views. Democracy in this respect is identical to the rule of the majority and the centrality of the legislative body, in which the people’s representatives act. This is a central feature, since without it there is no democracy.

The second pillar reflects core values that characterize democracies, such as the separation of the branches of government, the rule of law, and the independence of the judiciary. A key feature in this context is the protection of human rights, the right of the individual, of the “I” as a human being. Without recognition of individual rights, there can be no democracy. Democracy is based on the fact that each individual enjoys rights that even a majority cannot deprive him of simply by virtue of being a majority. Democracy has its own internal morality, without which it ceases to be a democracy. Taking away the rule of the majority destroys the essence of democracy. Denial of basic rights destroys democracy’s very existence.

There is a natural tension between the two pillars of democracy. The resolution of this tension lies not in the power of the majority to do as it pleases, nor in the immunity of the individual who is facing the power of the majority. The solution lies in the proportionate use of the majority’s power and in the individual’s subjugation to proportionate restrictions of his rights. Indeed, there is no democracy without majority rule, but this must never become the tyranny of the majority. There is no democracy without protection of human rights, but these rights function within the confines of a society that needs to fulfill certain societal objectives. Democracy is not just the rule of the majority and it does not consist only of the protection of human rights.

The relation between these different aspects

What is the relationship between Israel’s values as a Jewish state and its values as a democratic state? A constitutional-interpretive approach requires making an effort to create a synthesis of these values while seeking a normative and harmonious unity; searching for what is common and unifying, while limiting contradictions and sources of tension. One should object to any approach that views one of these values as superseding another. We are not a Jewish state with democratic values; we are not a democracy with Jewish values. We are a state which has both Jewish and democratic values.

How do we find out what Israel’s values as a Jewish state are and what its values as a democracy are? The answer is that we must turn to the inner sources of the country’s values as a democracy and to the internal sources of Israel as a Jewish state. Based on this we should strive for a synthesis that will reflect a common approach to Israel’s Jewish and democratic values.

One should realize that in each aspect of Israel as a Jewish and a democratic state, there are different underlying currents and conflicting views. The interpreter who strives for a harmonious synthesis must take from each of those values principles and concepts that accord with the principles and concepts of the other values. One must refrain from adopting principles which create a contradiction or opposition. Thus, if the Jewish values contain particularistic and universal strains, we should adopt the universal approach, since this is more congruent with the state’s values as a democracy than the particularistic values would be.

This is what the Supreme Court did in applying the principle of equality between Israel’s Jewish and Arab citizens. Similarly, if in the conception of democracy it is possible to define interpersonal relationships in different ways, we should choose an approach that is congruent with the views of Jewish law. This is what the Supreme Court did when it prohibited active euthanasia.

Israeli society is composed of several groups, or tribes, as the country’s president has called them. There is growing tension between these groups. The resolution of this tension must rely on understanding the Other and on sensitivity to his hardships. One must search for common ground, not for what separates people. One should strive for understanding, not for the adoption of extremist views. One should demonstrate tolerance toward Others, including people who are themselves intolerant. The synthesis of and harmony between Israel’s values as a Jewish state and a democracy must serve as the basis for a shared life of all groups. These values must not serve to widen rifts, foster extremism, or increase tension between the various groups.

Tension between the Jewish majority and the Arab minority

A Jewish man and Israeli Arab woman in Jerusalem.
A Jewish man and Israeli Arab woman in Jerusalem.Credit: Olivier Fitoussi

In analyzing the values of Israel as a Jewish and democratic state and the balance between them, one must take into account the fact that there are non-Jews living among us. It is true that a special key has been granted to Jews living outside the country, allowing them easy access. That was the point of Zionism and the point of the country’s Jewish heritage. But this should not lead to the discrimination of those who are not Jews. Any person living within our national homeland is entitled to equality, regardless of his religion or nationality. The values of Israel as a Jewish and democratic state should not lead to a discrimination against its Arab citizens. Jews and Arabs are citizens with equal rights in this country. Israel’s values as a Jewish state are not based on discrimination of Arab citizens.

Supreme Court Justice Menachem Alon correctly pointed out that “a foundational aspect of the Jewish world is that man was created in God’s image. This is how the Torah begins, and from this halakha draws conclusions about the value of a human being – of any human being, who is equal and deserving of love.”

The Declaration of Independence called on Arab inhabitants of the state “to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship.” Zionism was born as a reaction to discrimination and racism. The values of Israel as a democracy oppose any discrimination and demand equality. The Declaration of Independence noted that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Indeed, a democracy must honor and protect all individuals’ basic right to equality.

We must not forget our own history. We were a minority in the Diaspora and we were denied our rights. We were discriminated against and our human dignity trampled on. In our own state we must treat the Arab minority as we expected to be treated in the Diaspora. We must not discriminate against a minority. Our state is the nation-state of the Jewish people. But the non-Jews among us must be given equal rights. This is required by the human dignity of each of them, by the human dignity of each of us. The Jewish and democratic values of the state must serve as the basis for the full citizenship and equality of Arab citizens living among us.

Tension between the secular and ultra-Orthodox populations

Religious and secular pedestrians in Jerusalem.
Religious and secular pedestrians in Jerusalem. Credit: àåøï ðçùåï

There is growing tension in the relationship between secular and ultra-Orthodox citizens. This is expressed in many aspects of life, including the jurisdiction of dayanim, the religious judges, and in laws regulating marriage and divorce, conversion laws, the military draft, defining who is Jewish, observance of the Sabbath, kashrut laws, prayer at the Western Wall and the authority of rabbis. We must find solutions to this tension. Such a solution must allow for every community to maintain its basic beliefs without relinquishing them. The ultra-Orthodox community is not asked to give up its belief that the ultimate source of any normative authority is a divine one, and secular people are not required to relinquish their belief that the ultimate source of any normative authority is the autonomy of human will. Each community can maintain its beliefs while reaching an agreement on proportionate, pragmatic arrangements that reflect what is common and unifying in the values of the state as a Jewish and democratic entity.

Such solutions do not have to be based on total separation between state and religion. Such separation is unacceptable according to Jewish values and is controversial in various democracies. Solutions must be based on freedom of religion and on freedom from religion, and on recognizing the proportionate restrictions on these freedoms.

Religious legislation which is based solely on the power of the Knesset majority and which does not accord with a proportionate synthesis that is demanded by the values of this country as a Jewish and democratic state is an expression of the tyranny of the majority. We must avoid this. We must search for solutions that entail mutual concessions and mutual understanding. The secular community must accept the need to proportionately limit human rights in order to consider the interests of the Orthodox community and its needs to maintain its way of life and the fulfillment of mitzvot (religious obligations). The secular community must understand the many difficulties facing the orthodox community living in a country with a Jewish majority that does not abide by halakha. The Orthodox community must internalize the fact that as a minority it needs constitutional protection of its freedom of conscience and its individual freedoms. The ultra-Orthodox community must be willing to demonstrate tolerance toward the secular community. Both communities must internalize the fact the other must be recognized and his views respected, with a willingness to make some painful concessions.

Afterword

I see Israel as the realization of the dream of many generations. The fate of this state was placed in our hands, the generation of the post-Holocaust rebirth. We must do everything possible to preserve and protect it. Given that, there is a central place in this country for the individual and for the minority. I see in the liberty of man a key component of our national life in our state. The rights of individuals and minorities are rights that exist within the framework of a society, enabling a proportionate limitation of these rights in order to preserve the rights of others and in order to attain national goals. This is the basis of the conception according to which the tension between the values of Israel as a Jewish state or a democratic state must be resolved not by promoting differences, but through a search for synthesis and a coming together. This will prevent a rift in society, ensuring unity and partnership. This is the way for achieving a better society, more just and egalitarian, a society which can be a model for others, actualizing the biblical statement that “Torah will come forth from Zion and God’s word from Jerusalem.”

Prof. Aharon Barak is the former president of Israel’s Supreme Court and teaches at the Radzyner Law School at the Interdisciplinary Center, Herzliya. This article is based on a speech he gave at The First Israeli Congress on Judaism and Democracy

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