Israel as a Jewish democratic state

By Ilan Bloch

Photo courtesy of letstalkisrael.com

The categorization by the framers of Basic Law: Human Dignity and Liberty (1992) of Israel as a Jewish-democratic state tends to concentrate discussion on this issue, and may have deflected the attention of the Israeli public from the key issue of the promotion and protection of human rights – the initial focus of the legislation. If the purpose of a bill of rights (and the 1992 Basic Law, along with Basic Law: Freedom of Occupation (1994), is essentially an embryonic quasi bill of rights), in addition to affording legal protection of certain rights, is to transform public consciousness and inculcate certain values concerning human rights within Israeli society, because of the “Israel as a Jewish and democratic state” clause of the 1992 Basic Law, realization of this aim may have been regrettably frustrated.

Even though public opinion polls consistently show a high level of public trust in the institution of the Supreme Court, this confidence has declined in recent years following the passing of the 1992 Basic Law and this may well be linked to the role that the Court is required to play in defining in a legal sense the line between Israel’s identity as a Jewish state on the one hand, and a democratic state on the other. Even though law and ideology cannot be completely separated, if the Court’s role were limited to the interpretation of law as enacted by the Knesset, rather than actually being required to “create” laws, through adjudicating on petitions brought before it on the basis of the Basic Laws, its standing might be maintained, even amongst religious and right-wing sectors of Israeli society. This, of course, would also be facilitated if the justices of the Supreme Court were to refrain from excessive judicial activism and end, or limit,  Barak’s constitutional revolution. (Of course, there are other reasons for this drop in the appeal of the Court amongst the Israeli public – the very public spat between former Justice Minister Daniel Friedman and the Court being a key example.)

The major issues relating to Israel’s identity should not be determined by unelected and unrepresentative officials, but rather through ongoing discussion and debate within Israeli society. While part of the Court’s role is to protect the minority from tyrannical rule by the majority, it is in fact often doing the opposite – promoting an “enlightened” Ashkenazi, secular, liberal agenda, frequently representing a minority opinion which is at odds with the opinion of the elected legislature, and thereby ironically establishing a tyranny of the minority.

It is also worrying that Jewish texts are often used selectively to support liberal decisions by the Court; this opens the door for future judges who may be appointed for political reasons to use other Jewish texts to support ultra-conservative, or even fascist, judgments. Notwithstanding the Foundations of Law Act (1980), Jewish law should be kept out of the secular court system, except perhaps in matters of civil law, which have no real bearing on the essence or character of the State of Israel (for example, torts and contracts).

Ilan Bloch is the Director of Teaching Israel.