Israel – Jewish state or state of the Jewish people?

It is high time a serious debate took place on what exactly we mean by “the national state of the Jewish people,” in both religious and civic terms.

Knesset vote 311 (photo credit: Marc Israel Sellem)
Knesset vote 311
(photo credit: Marc Israel Sellem)
The winter session of the Knesset opened Monday. One of the items on the agenda is a bill initiated by MK Avi Dichter (Kadima) and cosigned by another 39 MKs, entitled “Basic Law: Israel – The National State of the Jewish People.”
As is well known, Israel does not have a constitution, and all the existing constitutional provisions appear in basic laws and in rulings of the Supreme Court. The first and last concerted effort to prepare a complete constitution for the country was made during the 16th Knesset, when MK Michael Eitan (Likud), then chairman of the Constitution, Law and Justice Committee, initiated serious discussions, in cooperation with the Israel Democracy Institute, on what was called “a constitution by broad consensus.”
The subjects that came up for discussion during these deliberations included “the State of Israel as the State of the Jewish People,” “the Jewish State and minority rights,” and various issues relating to human rights and Israel's democratic institutions.
Dichter’s current proposal is totally detached from any other issues. The background of the initiative is Israel’s status as the state of the Jewish people and the challenges to that status in international forums, in the context of the Palestinian Authority’s attempt to gain UN recognition for a Palestinian state and its refusal to recognize Israel as a Jewish one.
Under the circumstances, it is important that Israel clarify its own position on the issue. In fact, it is high time a serious debate took place on the issue of what exactly we mean by “the national state of the Jewish people,” in both religious and civic terms. For example: What is the place of Halacha (Jewish law) in the legal system of the state? What is the status of non-Orthodox Judaism? What are the limits of “religious coercion”? Unfortunately Dichter’s bill has not only avoided portraying the nature of the Jewish State, but has thrown a constitutional bombshell into the political arena by proposing to change the definition of Israel from “a Jewish and democratic state” to “the state of the Jewish people,” with the addendum that “the State of Israel has a democratic regime.”
One of the main proponents of the new definition is the chairman of the Knesset House Committee, MK Yariv Levin (Likud), who tabled a bill two years ago with Constitution, Law and Justice Committee chairman David Rotem (Israel Beiteinu), calling for the same change in the definition of the State of Israel in all its laws. The words of explanation to the bill state that “the question of the relations between the components of the term ‘Jewish and democratic state’ has led to bitter disputes in judicial rulings and the legal literature. Even though the Supreme Court has ruled that one is speaking of a single term with two components, and... that the state’s being Jewish is its raison de être, it is felt that not infrequently the term ‘Jewish state’ is emptied of its content, as if it were a superfluous excess to the term ‘democratic state.’” In a lecture last Thursday at Haifa University, Knesset Legal Adviser Eyal Yinon warned against altering the hierarchical relationship between “Jewish” and “democratic” in the definition of the state from being horizontal (i.e., of equal weight) to being vertical (i.e., placing the state’s Jewishness above its democratic nature), without a serious prior debate that would take into account the full constitutional and practical implications of the change. Yinon recognizes the Knesset’s right to redefine the character of the state, and does not claim that the proposed change is unconstitutional, but he is not sure that the solution offered in Dichter’s bill is really desirable.
In fact, it would be preferable if the definition of the state as Jewish and democratic were left intact, but the two adjectives and the balance between them more clearly defined. It is important that not only the state’s Jewish nature be carefully defined, as mentioned above, but also its democratic nature. For example, can Israel be described as truly democratic in the absence of some basic human rights, such as “the right to marry and to found a family,” mentioned in the UN Declaration of Human Rights, or as long as there is formal discrimination against its Arab citizens beyond what is absolutely unavoidable for security reasons? One of the dangers in adopting the vertical definition proposed by Dichter’s bill is that it legitimizes the position that democracy comes second to the Jewish character of the state. To many, this is totally unacceptable.
The writer teaches at the Academic College Emek Yisrael and volunteers at the Jerusalem Botanical Garden.