Can Israel be both a Jewish and a democratic state?
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."
Judaism's democratic nature is shown by its leaving no room for a Pope
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 democratic 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)