Jewish democratic state

Jews were a nation in exile. In any country they were a minority, and in some countries they were severely persecuted. The Jewish people did not possess national sovereignty anywhere except in Eretz Yisrael. To this land, Jews have always kept a deep religious and cultural affection. All this distinguished their attitude towards Eretz Yisrael from the claims of other peoples, for example, from the desire of some Europeans to move to the New World ^[1] .

Israel is a state that, according to Theodor Herzl , is destined to be a “protector of the Jews." That is, to be a Jewish state whose laws, institutions and political structures are called upon to promote the realization of the interests and aspirations of Jews as a people. The purpose of “protecting the Jewish people” has three meanings: firstly, to reduce the discrimination that Jews in exile countries have been subjected to; secondly, to lead to the formation of Jewish national culture; and thirdly, to help the Jews develop a national character appropriate for an independent and self-confident people ^[2] .

The right of the Jewish people to their national state was internationally recognized in the Balfour Declaration , in the mandate received by Britain from the League of Nations , and in the resolution on the division adopted by the UN General Assembly on November 29, 1947 and rejected by the Arab community ^[3] . The decision of the League of Nations refers to the rights of the Jewish people to restore their national home, and it is not about creating new ones, but about recognizing existing rights ^[4] . The UN resolution, among other things, states that the formation of a Jewish state is designed to provide Jews with control over the entry of immigrants into their country ^[5] .

The status of Israel as a “Jewish and democratic state” was enshrined in the Declaration of Independence of Israel , in judicial decisions and since 1992 in the Basic Law on Human Dignity and Freedom and in the Basic Law on Freedom of Work . As a Jewish state, Israel grants all Jews the immigration right set forth in the Law of Return . As a democratic state, Israel, in accordance with the Basic Law on Human Dignity and Freedom, seeks to “protect the life, physical integrity and dignity of every person, regardless of race, ethnic origin, gender or religion” ^[3] .

In 2018, the Basic Law was passed : Israel is the national state of the Jewish people , which defines Israel as the "national state of the Jewish people."

Since a large and stable majority of Israeli citizens want to live in a Jewish state, the principles of democracy oblige the state to maintain its Jewish character ^[6] . The state also undertakes to respect the rights of all its citizens, including those belonging to non-Jewish minorities. A minority cannot impede the realization of the interests of the majority as long as the fundamental rights of minorities are respected ^[7] . The Jewish character of the State of Israel does not in itself contradict the observance of the fundamental rights of non-Jewish residents and does not deny the democratic nature of the state. “It is true that non-Jewish citizens cannot feel complete involvement in the majority culture. But this is more likely not a right, but an interest, that is, something that national or ethnic minorities cannot claim almost by definition ” ^[8] . The differences between Jews and Arabs in Israel do not differ significantly from the differences between the dominant nation and ethnic minorities in other states ^[9] .

The state has the right to actions that contribute to the preservation of its Jewish essence, and this cannot serve as a basis for undermining its right to exist both from inside and outside ^[8] . “The goals pursued by the Jewish national movement, in some cases, justify the imposition of restrictions on the Arab inhabitants of the country, especially in such areas as security, land allocation, population dispersal and education” ^[10] . However, such a policy should take into account the fundamental rights of Arabs and is carried out through dialogue with representatives of their community in order to not only ensure the preservation of the Jewish character of the state, but also contribute to the well-being of Israeli Arabs ^[10] .

The definition of the State of Israel as Jewish and democratic is widely discussed both in Israel and abroad. Among Israeli lawyers, there is a wide range of opinions on this issue - from politician Shulamit Aloni ^[11] to lawyer Joram Sheftel ^[12] - however, judging by the publications, most Israeli lawyers, experts in the field of constitutional law, do not see a contradiction in the fact that the state can be both “Jewish” and “democratic”.

According to Judge Haim Cohen , the meaning of the term “Jewish and democratic states” is not that the Jewish and democratic nature of the state is in serious conflict with each other and there are ongoing ongoing ideological or political disputes. If this were so, then the legislator did not need to fix this provision in the basic laws. The fact is that after the consolidation of this constitutional legal principle, those who will interpret it are obliged to take into account both its complementary sides. Judge Cohen also noted that some Jewish values, such as, for example, Jewish repatriation and Halutianism (the development and settlement of Eretz Yisrael) were born not in biblical times, but after the rise of Zionism.

The Israeli Ministry of Foreign Affairs considered it necessary to respond to the attempts of some authors to use this topic for the delegation of Israel ^[13] . Ministry experts have denied allegations that theocracy exists in Israel. Israel respects the basic principles of democracy: the election of legislative and executive authorities, separation of powers, the rule of law, an independent judiciary, respect for human and civil rights (including freedom of religion), and freedom of the press. For those who believe that Jews are not a single people, since they are united only by a common religion, the ministry replies that the Jewish people are a nation, all of which have a common origin, history, religion, language and culture.

In the light of attempts to downplay the constitutional essence of Israel as a “Jewish democratic state” - or even proclaim Israel “the state of all its citizens” - the Institute of Zionist Strategy in its draft formal Constitution of Israel proposed the following wording of the first article of the Constitution: “The State of Israel is a Jewish state and a national home the Jewish people, in which the Jewish people exercise their self-determination in accordance with their historical and cultural heritage. ” The democracy of Israel is defined in this document as follows: “The State of Israel is a democratic state that respects human rights in accordance with the principles of freedom, justice, equality and peace embodied in the Jewish heritage” ^[14] .

Some Arab electoral lists and Knesset candidates demanded that the Jewish character of the State of Israel be abandoned and set out to transform the country from a Jewish democratic state into a “state for all its citizens” or a bi-national state ^{[15] [16]} . Already in the decision in the Kaadan case on the Jewish character of the community settlement of Katsir in the Galilee, Judge Aaron Barak indirectly spoke out for the model of the “state of all its citizens”, which caused sharp criticism against this idea ^{[17] [18]} . Subsequently, in another decree, Judge Barak noted that the demand for a “state of all its citizens”, which does not aim to undermine the foundations of Israel as a state of the Jewish people, but only seeks to ensure the equality of all citizens, cannot be a reason for depriving the right to run for Knesset. In this ruling, the Supreme Court overturned the decision of the Central Election Commission to exclude Azmi Bishara from participating in the Knesset elections by a majority of seven votes to four, on the grounds that there was not enough evidence to the court that Bishara supported the armed struggle against Israel, and that his demand for a “state of all its citizens” is quite dangerous ^[19] .

According to Rabbi Meir Kahane , when applied to the existing situation in the state of Israel, the term “Jewish democratic state” contains an internal contradiction. In a book published in 1987 ^[20] , Kahane wrote: “... Kahane can ask the Jews a simple question: do you agree that the Arabs have the right to become a majority in Israel democratically, peacefully, calmly and non-violently and vote for so that the Jewish state is gone? ”

• Ruth Gabison . Article “On the right of the Jewish people to a sovereign state” // collection “Jewish state at the beginning of the XXI century: an anthology of modern Israeli socio-political thought” edited by Alec Epstein . - Jerusalem, Moscow: Publishing houses "Gesharim", "Bridges of Culture", 2008. - S. 52-102. - ISBN 978-5-93273-269-5 .
• Chaim Cohen . Religion and Law (Heb.) / Foreword and Editorial by Daniel Friedman. - Israel: Kineret Publishing House, Zmora-Beitan, Dvir, 2009. - S. 761-771.