The phrase “Israel’s values as a Jewish and democratic state” reflects the uniqueness of the State of Israel and of Israeli society. We are not like all the nations; we are not like other states. We are a democracy, and our values are those of any democratic country. However, we are also a Jewish state, and are values are therefore the values of a Jewish state. Israeli society must contend with this duality.
“The values of the State of Israel as a Jewish state” are constitutional values in the State of Israel. They are explicitly anchored in the Basic Laws, which are the primary elements of Israel’s constitutional architecture. These values do not stand on their own. The Basic Laws affirm, in their statements of purpose – Section 1 of the Basic Law: Human Dignity and Liberty, and Section 2 of the Basic Law: Freedom of Occupation – that the values of the State of Israel are its values “as a Jewish and democratic state.” This creates a constitutional link between the values of Israel as a Jewish state and its values as a democratic state. Philosophers, theologians, and historians may argue that if Israel’s values are Jewish, they cannot be democratic, or if they are democratic, they cannot be Jewish. This is not the approach a judge takes. In front of him or her is a legal-constitutional text stating that the values of the State of Israel are its values both as a Jewish state and as a democratic state. The text is based on the assumption that there is an indivisible connection between Israel’s values as a Jewish state and its values as a democratic state. A faithful interpreter must do everything in his or her power to ensure that connection.
This approach to the relation between Jewish and democratic values raises two legal questions: First, how can it be ensured that the connection between Jewish values and democratic values will indeed be upheld and continue; and second, what is the law if, in a given instance, an inevitable conflict arises between Jewish and democratic values? The answer to these questions is interpretive. When a dispute emerges on this matter, it will be resolved by the courts, and in the framework of the judicial branch – by the Supreme Court. I will answer each of these legal questions.
How should the connection between Jewish values and democratic values be ensured?
In order to ensure a close and lasting connection between Jewish and democratic values, the legal interpreter must closely examine the Jewish value system on one hand, and the democratic value system on the other.
What are Israel’s values as a Jewish state? The Supreme Court has rendered its opinion on this question, stating that “the Jewish state has two main aspects: a Zionist aspect and a traditional-halachic aspect” (the Court ruled in this spirit, in, among others, the Yassin case, the Tibi case, the Hof Aza Regional Council case, the Gurevitz case, the Design 22 case, the Hasson case). The Zionist aspect reflects the Zionist vision. This is the world of Zionism. The traditional-halachic aspect reflects the world of Judaism. Within this framework there are both particularist values and universal values. For example, we find an ambiguous approach to the status of women or foreigners. Israel’s values as a Jewish state have been developed over the course of Jewish history. There are some values that complement each other, and others that contradict each other. There is a world of nuance here. Indeed, the term “values of a Jewish state” encompasses the values of Jewish heritage, law and thought, including the values of the era of revival, Zionism, and the founding of the state.
What are the values of the State of Israel as a democratic state? In several rulings (such as in the Tibi case, the Galon case, the College of Law and Business case and, in particular, the Conterm case), the Supreme Court stated that democracy is based on two principles: one – sovereignty of the people; and two – the rule of values, including the rule of law, the independence of the judiciary, the separation of powers, and human rights. These two principles form the core of democracy.
A constitutional-interpretive approach aims to achieve a synthesis between Israel’s values as a Jewish state and its values as a democratic state. The legal interpreter must strive for constitutional unity and normative harmony, based on an effort to find unifying factors and common ground while avoiding contradiction and reducing friction. Any interpretive approach that sees one of these values –Jewish or democratic – as outweighing the other must be opposed. We are not a Jewish country whose values are democratic; we are not a democratic country whose values are Jewish. We are a country whose values are both Jewish and democratic (see the Hasson case).
In each of these aspects of Israel as a Jewish state and as a democratic state there are differing opinions and opposing approaches. Zionism and the Jewish heritage are not cut from the same cloth. They have different currents and disparate and conflicting outlooks. Even the concept of “democracy” is not one-dimensional. The world of democracy is rich and multifaceted. There is no single, indispensable democratic outlook. Indeed, each of Israel’s two values-related components contain multiple and sometimes even contradictory trends. The interpreting jurist, striving for synthesis and harmony, must take from each source the values and conceptions it contains and that align with the values found in the other sources. He or she must avoid taking on values that give rise to contradiction or stark contrast. For example, if in the world of Judaism there is a particularist current and a universalist current, it would be appropriate to adopt the universalist view as that current better aligns with Israel’s values as a democratic state. This is what the Supreme Court did regarding the applicability of the principle of equality between the Jewish citizens of the state and the state’s Arab citizens (the Ka’adan affair). Similarly, if in the concept of democracy it is possible to look at interpersonal relations in a variety of ways, it would be appropriate to choose the approach that corresponds best with Jewish law. That is what the Supreme Court did regarding active euthanasia (the Shefer case).
My approach as presented here, which seeks the unifying factor between Jewish and democratic values, resolves the issue of religion-state relations in Israel. The solution is based on each sector, or public, being able to retain its basic religious framework, rather than having to renounce it. The ultra-Orthodox sector is not expected to relinquish its view that the supreme source of all normative authority is that of divine command, while the secular sector is not expected to relinquish its view that the supreme source of all normative authority is the autonomy of the will of the people. Each sector continues to live according to its belief system, while consenting to proportional pragmatic arrangements that reflect the unifying and common values Israel as a Jewish state and as a democratic state. These solutions need not be based on a complete separation of religion and state. Such separation is not consistent with Israel’s values as a Jewish state and is a matter of dispute in other democratic countries as well. The solutions will be based on freedom of religion and freedom from religion, as well as on the recognition of proportional limitations on these freedoms.
How will the inevitable conflict between Jewish values and democratic values be resolved?
What should the judge do if his attempt to find complementarity and harmony between Israel’s values as a Jewish state and its values as a democratic state fails? The judge is not free to throw up his hands and lament that the issue is profoundly complicated and that he has no means of resolving it. The judge must issue a ruling. How will he do this? The answer to this question is interpretive. The judge must balance the opposing values. He must find a solution that fits better than any other solution within the general normative framework. This issue should not be addressed via a mechanical approach that gives a priori preference to the Jewish aspect or the democratic aspect. The constitutional text must be approached via a “broad view” and with the aim of achieving constitutional unity. Therefore, we must seek the solution in the statement of basic principles enshrined in Basic Law: Human Dignity and Liberty and 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.”
Indeed, there is a close relationship between the statement of purpose and the statement of basic principles. The basic principles influence the interpretation of the purpose of Basic Law: Human Dignity and Liberty, while the purpose of the law influences the interpretation of the basic principle pertaining to the value of the human being in Israel. Both of these provisions should be interpreted in the spirit of the Declaration of Independence.
In the event of conflict between the State of Israel’s values as a Jewish state and its values as a democratic state, the judge must resolve the conflict in a way that promotes these fundamental principles. The Declaration of Independence plays a decisive role in this interpretive activity.
Final thoughts
The phrase “Israel’s values as a Jewish and democratic state” is rather vague. The wording does not convey an unequivocal answer. Its interpretation was left to the Supreme Court. It cannot evade this duty.
The phrase “Israel’s values as a Jewish and democratic state” reflects the uniqueness of the State of Israel and of Israeli society. We are not like all the nations; we are not like other states. We are a democracy, and our values are those of any democratic country. However, we are also a Jewish state, and are values are therefore the values of a Jewish state. Israeli society must contend with this duality.
The relationship between Israel’s values as a Jewish state and its values as a democratic state lies at the foundation of our existence as a country that combines the two. It is a complex and knotty relationship. We must provide solutions that recognize both the state’s Jewish values and its democratic values. Any given solution will require the coexistence of these values without one overpowering the other. It is possible to learn from the experience of other countries. However, the solution must be an original Israeli one. “There are many democratic states. Only one is a Jewish state” (the Tibi case). This is our uniqueness, and this is what should determine Israeli solutions. Achieving this is a complicated matter. The road is long, but the direction is clear: synthesis and harmony between Jewish and democratic values.
Sources
Gurevitz – HCJ 6133/14 Gurevitz v. Knesset of Israel [published on the website of Israel’s Judicial Authority (26.3.2015)].
Galon – HCJ 466/07 Galon v. the Attorney General of Israel 65(2) PD 1 (2012).
Design 22 – HCJ 5026/04 Design 22 – Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department, Ministry of Labor and Social Affairs 50(1) PD 38 (2005).
Hof Aza Regional Council – HCJ 1661/05 Hof Aza Regional Council v. Knesset of Israel 59(2) PD 481 (2005)
Academic Center of Law and Business – HCJ 2605/06 Academic Center of Law and Business, Human Rights Division v. Minister of Finance 63(2) PD 545 (2009).
Hasson – HCJ 5555/18 Hasson v. Knesset of Israel [published on the website of Israel’s Judicial Authority (8.7.2021)].
Tibi – EC 11280/02 The Central Elections Committee for the Sixteenth Knesset v. Tibi 57(4) PD 1 (2003).
Yassin – LCA 7504/95 Yassin v. Parties Registrar, 50(2) PD 45 (1996).
Conterm – HCJ 164/97 Conterm Ltd. v. Ministry of Finance, Customs and VAT Division 52(1) PD 289 (1998).
Ka’adan – HCJ 6698/95 Ka’adan v. Israel Land Administration 54(1) PD 258 (2000).
Shefer – CA 506/88 Shefer v. State of Israel 48(1) PD 87 (1993).
Professor Aharon Barak is retired President of the Supreme Court of Israel.