Why Israel must legally define itself as a Jewish state

The argument stated by Justice Minister Tzipi Livni and Ha’aretz newspaper against the proposed bill is that Israel is both Jewish and democratic and that the bill would favor Jewish values over democratic ones. In fact they wish Israel would stick to the “Jewish and democratic” definition spelled out back in 1993 by then Chief Justice, Aharon Barak.

Prime Minister Benjamin Netanyahu’s recent decision to promote a bill officially defining Israel as the Jewish nation’s state may seem bizarre to outsiders. At home, it was immediately criticized by Justice Minister Tzipi Livni, by Israel’s opposition, and by the Ha’aretz newspaper.

The standard argument against the proposed bill is that Israel is both Jewish and democratic and that the bill would favor Jewish values over democratic ones. But why is this alleged contradiction between national identity and democracy only considered an issue in Israel’s case? Does anyone question the fact that the Czech Republic is both Czech and democratic? All EU members (arguably with the exception of Belgium) are both nation states and democracies. They all belong to a dominant nation, yet all citizens are equal before the law. The fact that Jewish identity combines nationality with religion (to different degrees depending on one’s personal beliefs) is not particular to Israel, either. Japan’s national identity intertwines with Shinto; Catholicism is intrinsic to the Polish ethos; Evangelical Lutheranism is the state religion of Denmark; the Queen of England is both head of state and head of the Anglican Church.

Ha’aretz argues that the 1992 Basic Law: Man’s Dignity and Freedom already defines Israel as “Jewish and democratic” and, therefore, the proposed bill is unnecessary. In fact, Ha’aretz wishes Israel would stick to the “Jewish and democratic” definition spelled out back in 1993 by then Chief Justice Aharon Barak: “The concept of ‘Jewish State’ should be interpreted in the most abstract manner, and in no way based on Jewish law. Israel’s values as a Jewish state are the universal values of a democratic society.”

During his 28 years as a Supreme Court Justice (from 1978 to 2006), and his 11 years as President of the Supreme Court (from 1995), Barak confirmed many times that his understanding of “Jewish and democratic” is “democratic.” But he also promoted and implemented what he called a “constitutional revolution” whose intention and outcome was to replace the separation of powers with a hierarchy of powers dominated by the judiciary.

Barak implemented his “revolution” (the only revolution in history which took place without the people’s awareness, as former MK Michael Eitan quipped) by annulling the principle of standing and thus by opening the floodgates of politically-motivated petitions; by deciding that the High Court of Justice is entitled to invalidate Knesset laws; by empowering the Court to cancel government decisions not only based on their illegality but also on their “unreasonableness” (an arcane concept whose interpretation belongs to the Court); and by declaring that everything (including political decisions) is “justiciable.”
The effects of Barak’s unilateral extension of the Court’s authority became palpable in the 1993 “Pinhassi” ruling. Deputy Interior Minister Rafael Pinhassi had been indicted by the Attorney General on corruption charges. By law, he was under no obligation to resign since he had neither been convicted nor stood trial. NGOs petitioned the Court to oblige then Prime Minister Yitzhak Rabin to fire Pinhassi. They did not meet the requirement of standing, but such a requirement no longer existed since a 1986 ruling by Barak. The law did not require Rabin to fire Pinhassi, but Barak decided that keeping Pinhassi in his job would be “unreasonable.” Deciding Pinhassi’s fate was a purely political question of the executive branch, but Barak ruled the Prime Minister’s decision “justiciable.” And so the Court ordered the Prime Minister (whose opinion the Court deemed irrelevant in its ruling) to fire his Deputy Interior Minister.

For the past two decades, Barak’s “constitutional revolution” has enabled individuals and NGOs to petition the Court to cancel Knesset laws and government decisions that express and preserve Israel’s Jewishness. Thus, the Court forbade the Jewish Agency in 2000 (“Kaadan” ruling) to allocate land purchases only to Jews; thus was the Court petitioned in 2006 to repeal a law meant to prevent the implementation of the Palestinian “right of return” through the back door by way of “family reunification” (the Court eventually rejected the petition against Barak’s minority opinion).

As explained by law professor Menachem Mautner, Barak’s “constitutional revolution” was meant to enable Israel’s liberal elite to preserve its power despite the left’s electoral defeat of 1977. And as confirmed by former Justice Minister Daniel Friedmann: “The struggle is not for the rule of law, but for the rule itself.”

One of the side effects of the “constitutional revolution” was to enable post and anti-Zionists to challenge Israel’s Jewishness via the High Court of Justice. This side effect may not have been intended by Barak, but today the Court lacks the law it needs to defend Israel’s Jewishness when petitioned. Hence the necessity of the proposed bill. The opposition of post-Zionists is understandable; that of liberal Zionists less so