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PDF FormatIn March 1992, the Knesset passed two laws that changed the face of Israeli constitutional law. Basic Law: Freedom of Occupation prohibited restrictions on a person’s right to practice any vocation, except if such restrictions be for an appropriate purpose that accords with Israel’s values—and even then, only to the minimal degree necessary. Basic Law: Human Dignity and Liberty forbade infringment upon a person’s dignity, life, body or property, except again for an appropriate purpose consistent with Israel’s values. These values are addressed in the “purpose” sections of the Basic Laws. For example, Basic Law: Human Dignity and Liberty declares as follows:
The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.43
Although Israel was widely assumed to be Jewish and democratic prior to 1992, the Knesset’s designation of these terms as a reference point for Israel’s values accorded them far-reaching significance. Any court asked subsequently to rule on whether a particular restriction on rights accorded with Israel’s values would be forced to determine what a “Jewish and democratic state” was. The Barak Court, an activist judiciary waving the banner of individual rights, could expect to face this dilemma repeatedly. Supreme Court justices found themselves under pressure to develop a workable understanding of the phrase.
For decades, Israel’s judges had been grappling with the idea of Israel as a “democratic” state. In civil rights cases like the 1953 Kol Ha’am decision on freedom of the press, Israeli courts devoted much thought and many pages to the nature of Israeli democracy.44 But judges had rarely felt the need to spell out the characteristics or implications of Israel as a “Jewish” state.45 There was, however, one area where Jewish principles forced their way into a statute, and therefore into the judicial debate. In the Foundations of Law Act (1980), the Knesset determined that where gaps, or “lacunae,” exist in the law, the court must turn to “the principles of justice, equity and freedom of the heritage of Israel.” This two-paragraph statute sparked a judicial conflagration that raged throughout the 1980s. Justice Menachem Elon, the court’s deputy president until his retirement in 1993, understood the term “heritage of Israel” to mean the vast jurisprudence of mishpat ivri —the traditional Jewish civil law.46 Barak fiercely opposed this reading, preferring to read the term broadly, to include thinkers like Spinoza. In any event, Barak’s method of legal interpretation held that the law almost never produced any lacunae, and thus the court almost never had to take into account any distinctly Jewish values and legal principles.47
In the wake of the 1992 Basic Laws, however, even Barak could no longer avoid addressing the Jewish character of the state. As Elon observed, the new laws placed a constitutional obligation upon judges to do so.48 Soon after the passage of the laws, President Barak noted the significance of the purpose clause and, specifically, the formidable challenge facing the courts in interpreting the word “Jewish”: “Extensive case law dealt in the past with the character of the state as a democratic state.… More difficult are the questions of what a “Jewish state” is, and of the relation between the term “Jewish state” and the term “democratic state.”49
Barak’s vivid interpretive imagination, however, was up to the task of balancing these two values—and in a manner which matched his beliefs about their relative significance. In an address he delivered at Haifa University less than two months after the Basic Laws went into effect, he pointed the way to a synthesis with breathtaking intellectual legerdemain:
The content of the phrase “Jewish state” will be determined by the level of abstraction which shall be given it. In my opinion, one should give this phrase meaning on a high level of abstraction, which will unite all members of society and find the common among them. The level of abstraction should be so high, until it becomes identical to the democratic nature of the state. The state is Jewish not in a halachic-religious sense, but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state (this is expressed, inter alia, in the language and the holidays).50
The solution to the challenge of balancing Israel’s Jewish and democratic values is to be found, Barak essentially argues, through legal alchemy—the transformation of the term “Jewish” into a synonym for the term “democratic.” Of course, such alchemy begins with a basic understanding of Jewish values. In the same speech, Barak elaborated on the positive meaning of the term “Jewish”:
The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel’s democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.51
Through a selective reading of the values of Judaism, Barak succeeded in creating a “Jewish” state that could slip quite easily into his understanding of a “democratic” one. Creative abstractions aside, Barak essentially concluded that a state which is Jewish and democratic is a state which is democratic.
While it is certainly legitimate to read “Jewish” as referring to something other than halacha—the drafters of the Basic Laws did not have theocracy in mind—it is hard to accept President Barak’s unilaterally picking one of the provision’s two competing reservoirs of values and diluting it with the “highest possible level of abstraction” until it is virtually identical to the other. No less difficult is his reference to non-Jewish minorities as a justification: The legislators were fully aware of this demographic platitude, and nonetheless decided to draft the law as they did.52
Moreover, Barak’s abstraction of the term “Jewish” is not paralleled by any abstraction whatever of the term “democratic.” In a sharp retort delivered soon after the publication of Barak’s formula, Deputy President Elon charged that when discussing a “democratic” state, Barak does not abstract, but rather refers easily to domestic, Canadian, European and international jurisprudence.53 Speaking at the 1992 Canada-Israel Law Conference—on the same panel as President Barak—Elon did not mince words:
One may wonder: How can it be that there is an entirely different standard for each of the two expressions contained in the same statute and in the same clause—“Jewish and democratic”—when both of them come to describe the same thing—the character of the State of Israel.... How can it be that the expression “democratic”—which by the way appears second, after the expression “Jewish”—is to be given its full meaning and is to be interpreted according to the decisions and literature that was written on the subject inside and outside of Israel, yet the expression “Jewish” must be “abstracted” of all independent and original meaning, to be regarded as an artificial attachment that is subordinate to the concept of “democracy”?54
To this one may add a further difficulty inherent in Barak’s exclusive focus on “universal” aspects of Judaism: The doctrine implies that the only relevant Jewish values are those adopted by non-Jewish systems and, moreover, that one learns these Jewish values not from their original sources but from the foreign societies which have subsequently adopted them.
