Can Is­rael be both a Jewish and a demo­cratic state?

The Jewish Chronicle - - Comment & Analysis -

IS­RAEL WAS es­tab­lished as a Jewish state. The dec­la­ra­tion of the es­tab­lish­ment of the state of Is­rael fol­lowed the par­ti­tion plan adopted by the UN Gen­eral Assem­bly, call­ing for the es­tab­lish­ment of in­de­pen­dent Arab and Jewish states in Pales­tine. Is­rael failed to adopt a com­pre­hen­sive con­sti­tu­tion. In­stead, a se­ries of ba­sic laws were adopted by the Knes­set acting as the con­stituent assem­bly of the state. In 1992, the Knes­set adopted two “ba­sic laws” deal­ing with hu­man rights. These were the Ba­sic Law: Hu­man Dig­nity and Lib­erty and Ba­sic Law: Free­dom of Oc­cu­pa­tion. Both of these in­clude a clause pro­vid­ing that “the pur­pose of this Ba­sic Law is to pro­tect hu­man dig­nity and free­dom in or­der to es­tab­lish in a Ba­sic Law the val­ues of the state of Is­rael as a Jewish and demo­cratic state.”

This rather vague pro­vi­sion aroused much con­tro­versy in the po­lit­i­cal as well as the legal com­mu­ni­ties. Opin­ions ex­pressed ranged from the state­ment that a Jewish state could be any­thing but demo­cratic to the dec­la­ra­tion that a Jewish State could be noth­ing but demo­cratic.

This con­tro­versy did not es­cape the rab­bini­cal world. In his es­say, The Bib­li­cal Ba­sis of Democ­racy, Rabbi Robert Gordis re­marked that “the main cur­rent of bib­li­cal thought and Jewish tra­di­tion is fun­da­men­tally demo­cratic and… has helped to mould the demo­cratic ideals of west­ern civil­i­sa­tion”.

Not­ing that the word “democ­racy” is of Greek ori­gin and was un­known in an­cient He­brew, he went on to state that: “The Greeks may have had the word for it, but the He­brews had the sub­stance.”

The for­mer Bri­tish Chief Rabbi, Im­manuel Jakobovits, wrote, on the other hand, that, of “all great ideals mak­ing up what­ever is best known in ‘West­ern civil­i­sa­tion’, it is only democ­racy which does not de­rive its en­tire inspiration from the cre­ation of the He­braic ge­nius and her­itage.”

And he went so far as to state that the “con­tem­po­rary no­tion of democ­racy [is] an idea which is largely for­eign to Jewish teach­ings.” Yet Jakobovits also noted that “[s]ocial jus­tice, hu­man equal­ity and free­dom, the ed­u­ca­tion of the masses”, which un­der­lie demo­cratic val­ues, “first found ex­pres­sion in the lit­er­a­ture and his­tory of Is­rael.” Much of the con­tro­versy over the ques­tion whether “Jewish” could be “demo­cratic” stems from op­pos­ing ap­proaches to the mean­ing of “Jewish”, as well as “demo­cratic”, in the ba­sic laws’ for­mula. Those who re­gard the Jewish state as non-demo­cratic have in mind a halachic state based on the laws of the To­rah.

Such a state can­not be demo­cratic. In a Jewish re­li­gious state, there is no room for tol­er­ance to­wards a sec­u­lar way of life. More­over, in a demo­cratic state, sovereignty is en­trusted to the peo­ple; in a halachic state, the only sov­er­eign is God Almighty. The ba­sic norm in such a state is that the com­mand­ments of the Lord must be obeyed.

Those who re­gard the Jewish state as dem- ocratic have in mind a state that de­rives its val­ues, in­ter alia, from Jewish teach­ings. As such, the Jewish state presents no in­her­ent con­tra­dic­tion to democ­racy.

No less is the con­tro­versy rooted in dif­fer­ent no­tions of democ­racy, rang­ing from lib­eral to repub­li­can. Yet, though more com­pat­i­ble with the lat­ter no­tion, ideas that have their roots in Jewish teach­ings may well con­form to lib­eral per­cep­tions of democ­racy. This is es­pe­cially so since the ideas of hu­man rights sur­round­ing the no­tion of hu­man dig­nity be­came an in­dis­pens­able part of mod­ern democ­racy. This very no­tion is cen­tral to Jewish teach­ings and may well be re­garded as a pil­lar of Ju­daism.

The demo­cratic na­ture of Ju­daism may be demon­strated by the fact that, in the Jewish re­li­gion, there is no room for a Pope. Each and ev­ery in­di­vid­ual is di­rectly com­manded by God and is per­son­ally re­spon­si­ble to him; there is no me­di­a­tor be­tween them.

It is of sig­nif­i­cance that the sages tell us that it is for the in­di­vid­ual to choose his rabbi (“ aseh lekhah rav”), rather than for a rabbi to be im­posed on him.

Even the in­sti­tu­tion of the Chief Rab­binate does not have its ori­gin in the Jewish re­li­gion. Rather, it was cre­ated in the di­as­pora, in or­der to rep­re­sent the Jewish com­mu­nity be­fore the gen­tile authorities. It is sig­nif­i­cant that even nine of the great­est rab­bis can­not form a minyan, the quo­rum needed for con­gre­ga­tional prayer, while 10 il­lit­er­ate men, even sin­ners ( avaryanim) will suf­fice.

Amid the cur­rent hos­til­ity and con­tro­versy sur­round­ing it, the mis­sion fac­ing Is­rael to shape hu­man rights in both the Jewish and the demo­cratic im­age re­mains a fun­da­men­tally chal­leng­ing one. Asher Maoz is a law pro­fes­sor at Tel Aviv Univer­sity. He is the edi­tor of ‘Is­rael as a Jewish and Demo­cratic State’ (Jewish Law As­so­ci­a­tion, 2011)

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