1 Ravitzky, A., HaKetz HaMegulaeh Umedinat Hayehudim (Messianism, Zionism and Jewish Religious Radicalism) (Tel-Aviv, Am Oved, 1993, in Hebrew) 67–84 Google Scholar.

2 Ibid., at 111-200.

3 Avineri, S., The Making of Modern Zionism: The Intellectual Origins of the Jewish State (New York, Basic Books, 1981) 13 Google Scholar.

4 In 1948, Hitler's Germany provided an immediate and uncontested historical back-ground for the founding of an independent State for the Jews. But how to interpret this eruption of violence directed at Jews and Judaism is subject to conflicting interpretations within Judaism of its history and end. However, if a community is deeply divided over the details of the “real” history that “guides” its development, a lasting constitution cannot come into being. In this respect, Hanna Pitkin's comments on the prerequisites to constituting anything come to mind: “Although constituting is always a free action, how we are able to constitute ourselves is profoundly tied to how we are already constituted by our own distinctive history”. Because the “historical” events leading from the “exile” of the people of Israel to the “founding” of their “independent State” are subject to fierce debate and interpretations widely at odds with one another, Israeli political culture lacks a necessary prerequisite for “creating — together with others — something lasting, inclusive, principled, and fundamental”. In Pitkin, H., ”The Idea of a Constitution”, (1987) 37 J. Legal Educ. 168–69Google Scholar. For a wide-ranging discussion of the relevance of historical and cultural contexts to the development of the role of Court's in public discourse, see Post, Robert C., “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell”, (1990) 103 Harv. L.R. 601, at 603–686 CrossRefGoogle Scholar.

5 See Englard, I., “Law and Religion in Israel”, (1987) 35 Am. J. Comp. L. 185, at 193 CrossRefGoogle Scholar.

6 M.K. I. Levi, a member of the National Religious Party, today the Minister of Education, represented in 1995 the position that the source of Israel's constitution should be the Torah, rather than the experience of democratic constitutions, such as that of the United States: “We see here a people [i.e., Israel] that is disregarding its constitutional heritage and is engaged in “constitutional revolutions”. [This people] thinks that it will attain normalcy if it totally disregards its tradition and seeks normalcy from [the experience of] this or that continent”. In “The Complete Protocol of the Meeting of the Knesset's Constitution, Law and Justice Committee that Deliberated the Relationship between the Knesset and the Supreme Court”, (January 1995) 24 Halishkah 22 Google Scholar.

7 M.K. Benizri, representative of the Orthodox-Sephardic party Shas, currently the third largest parliamentary faction, responded to charges that he engaged in illegitimate personal attacks on Barak P., in the following terms: “If I want to criticize Supreme Court justices, don't I have the right? Just as he has the right to criticize, so do I. I did not go into personal matters. I have heard that he is a very pleasant person, very nice, very intelligent, very smart, and all of the beautiful definitions. I do not engage in a personal argument with him. It is my right to criticize. In this country you even criticize God. For me, the Supreme Court is certainly not above God, for sure below him. I am criticizing, and don't you call me vulgar … I want to tell you that the interference of the Supreme Court in personal matters, in wrecking all walls of religion, in its interference in the [religious-secular] status quo, if continued, is not a threat to democracy, it is a challenge to Judaism.” In “The Complete Protocol”, supra n. 6, at 26.

8 For a critique of the most serious judicial attempt (that of Barak P.) to infuse meaning into the phrase “Israel's values as a Jewish and democratic state,” see my article “The ‘Enlightened Public’: Jewish and Democratic or Liberal and Democratic?”, (July 1996) 3: 2 Mishpat Umimshal 417–452 Google Scholar.

9 S.H. 1992, No. 1391, p. 150.

10 S.H. 1994, No. 1454, p. 90.

11 Zamir, Itzhak and Zysblat, Allen, Public Law in Israel (Oxford, Clarendon Press, 1996) 154, at 157 Google Scholar. On p. 157, where one reads a translation of Basic Law: Freedom of Occupation, they mistakenly translate the Hebrew word “le'agen” as “to establish” rather than as “to anchor” (as correctly translated in p. 154, where one reads the translation of the identical “purpose” section in Basic Law: Human Dignity and Liberty). In translating “le'agen” as “to establish,” they follow the imprecise translation in Deputy Attorney General Guberman, Shlomo and DrShalev, Carmel, transl., The Constitution of the State of Israel 1996 (Jerusalem, Jerusalem Center for Public Affairs, 1996) 90 Google Scholar. My following analysis will point to the significance of the word “le'agen” — “to anchor” and not merely “to establish” — as a key to fathoming the intrinsically flawed wording of this section.

12 It is worth adding that in democracies not only are values located in the citizenry, but the very creation and maintenance of the regime is dependent on the citizenry. In the words of Jean Hampton, “this creation-and-maintenance process involves the creation and maintenance of a set of authoritative norms that define the legal system and the obligations of the officials who work within it. However, democracies operate so that people have continual control over the process of creating and maintaining the regime.” See Hampton, J., “Democracy and the Rule of Law”, in Shapiro, I., ed., The Rule of Law (New York, N.Y.U. Press, 1994) 32 Google Scholar. With this comment in mind, one may consider the fact that the area of the world directly responsible for the evolution of the modern form of democracy, Western Europe, is now undergoing a period of change in its political form, from the nation-state as the primary political unit, to a combination of local regions on the one hand, and the European Union on the other hand. This process demonstrates the fluidity of democratic political forms, that are not eternal and thus — in the context of the present discussion — do not and should not have, values that are detached from the values of the citizens that they ought to serve. For developments of new political forms in Europe, see Olsen, J.P., “Europeanization and Nation-State Dynamics” in Gustavson, S. and Lewin, L., eds., The Future of the Nation State: Essays on Cultural Pluralism and Political Integration (London, Routledge, 1997) 245–285 Google Scholar. For a series of excellent discussions of evolving types of citizenship currently being practiced in Western democracies, see van Steenbergen, Bart, ed., The Condition of Citizenship (London, Sage, 1993)Google Scholar.

13 Schmitter, P.C. and Karl, T.L., “What Democracy Is … and Is Not”, in Diamond, L. and Plattner, M.F., eds., The Global Resurgence of Democracy (Baltimore, Johns Hopkins University Press, 1993) 40 Google Scholar.

14 See a discussion of the relationships in the Torah between the community of Israel and its political form in Dan Avnon, , Martin Buber: The Hidden Dialogue (Lanham, Rowman & Littlefield, 1998) 88–97 Google Scholar.

15 See, for example, Karp, J., “Basic Law: Human Dignity and Liberty: A Biography of Power Struggles”, (1993) 1:2 Mishpat Umimshal 331 Google Scholar, n. 27, and A. Barak, “Protected Human Rights: Scope and Limitations”, ibid., at 268-271.

16 Cited in McWhinney, E., Canada and the Constitution 1979-1982: Patriation and the Charter of Rights (Toronto, University of Toronto Press, 1982) 173 CrossRefGoogle Scholar. It is interesting to note that Supreme Court Justice Aharon Barak does not take these obvious differences into account in his interpretation of the constitutional implications of sec. 8 of the Basic Law: Human Dignity and Liberty. See his use of the Canadian Charter in “Protected Human Rights”, supra n. 15, at 269-270.

17 See Jaspers, K., Spinoza, Arendt, H., ed. and Manheim, R., tr., (New York, Hartcourt, Brace, Jovanovich, 1974) 75–84 Google Scholar.

18 “Fundamental Principles of the Government of Afghanistan”, (October 31, 1931) in Peaslee, A.J., Constitutions of Nations (The Hague, Nijhoff, 2nd ed., 1956) vol. 1, p. 21 Google Scholar.

19 Mussolini, Benito and Gentile, Giovanni, Enciclopedia Italiana (1932)Google Scholar. Cited in Huggins, R., “The Nature of the State”, in Axford, B., Browning, G.K., Huggins, R., Rosamond, B. and Turner, John, Politics: An Introduction (London, Routledge, 1997) 281 Google Scholar.

20 Basic Law: Freedom of Occupation was passed by a majority of 23 for, without abstentions nor votes against it. Basic Law: Human Dignity and Liberty was passed by 32 in favor, 21 against, and one abstention. See Divrei HaKnesset 22 (1992) 3393 Google Scholar and Divrei HaKnesset 24 (1992) 3793 Google Scholar. One of the primary advocates of this legislation, M.K. A. Rubenstein, of the small liberal party Shinui, commented that the parliamentary coalition that managed to pass these laws exploited the “anarchy” that had developed in the 12th Knesset due to the government's lack of parliamentary leadership. Their purpose, said Rubenstein, was to “change norms through legislation”. In this comment, M.K. Rubenstein seems to have alluded to the liberal M.K's tacit assumption that the Supreme Court would forward a liberal-democratic constitutional agenda, including a “democratic” interpretation of the “purpose” section. See interview with Rubenstein, Amnon in “The Quiet Constitutional Revolution”, (April 1992) 16 Halishkah 14–15 Google Scholar, and my discussion in “The ‘Enlightened Public’”, supra n. 8, at 420-423. M.K. I. Levi, representative of the National Religious Party, presented the opposing perspective that sought to balance a potentially liberal-democratic cultural revolution (my terms, not M.K. Levi's) by including the word “Jewish” in the Basic Law's definition of purpose: “In the first reading of this bill we encountered a version that included only the phrase ‘a democratic state’. The fact is that the Knesset did not accept this limited definition, and a difficult struggle ensued, focused around our attempt to convince our friends that the State of Israel is also ‘a Jewish state’. … The State of Israel wants and is interested in retaining its Jewish values and tradition, and we must put this will as a primary priority when determining the normative values of this State's image”. Interview with Levi, M.K. I., in Halishkah 28 Google Scholar.

21 For an overview of the Court's gradual approach to furthering rights in Israel's legal and political culture, see Lahav, P., “Rights and Democracy: The Court's Performance”, in Sprinzak, E. and Diamond, L., eds., Israeli Democracy Under Stress (Boulder, Lynn Rienner Publishers, 1993) 125–152 Google Scholar.

22 The original Hebrew word is “she-no'ad”. It has been translated in Zamir and Zysblat, supra n. 11, as “designed,” and by Guberman and Shalev as “enacted.” However, the Hebrew root of the word “no'ad” designates a strong sense of end combined with intention, as in the Greek word Telos. Hence my choice of “intended” as translation of “she-no'ad”.

23 Zamir and Zysblat, supra n. 11, at 91, 93.

24 34 L.S.I. 181, sec. 1. I thank (retired) Justice Gabriel Bach for drawing this solution to my attention.

25 For a liberal discussion of Israelŝ values that takes off from this definition, see Cohn, H., “The Values of a Jewish and Democratic State: Meditations on Basic Law: Human Dignity and Freedom”, in Gavrieli, A., ed., HaPraklit: The Jubilee Volume (Tel-Aviv, The Bar Association, 1993, in Hebrew) 9–52 Google Scholar.

26 United Mizrahi Bank Ltd. v. Migdal Cooperative Village (1995) 49(iv) P.D. 1.

27 D. Kretzmer, “The New Basic Laws on Human Rights: A Mini-revolution in Israeli Constitutional Law?”, in Zamir and Zysblat, supra n. 11, at 145-46.

28 See sources in nn. 26 and 27.

29 See, for example, Shamgar P. in The United Mizrahi Bank, where he discusses the question of whether the claim by creditors that their property rights were violated by Knesset law that did not enable them to collect debts against agricultural settlements. Analyzing sec. 8, he concludes that the values of the State of Israel are Jewish and democratic. However, he continues as follows: “It seems that the lower courts whose decision is before us … broadened the role of the court beyond the appropriate measure when it addresses the question whether the legislation befits the values of the State of Israel [original emphasis]. The court does not judge in order to manage the country's economy. It does not re-write the law. It does not transform the secondary into primary in order to assert that a legislative act is in its eyes lacking or suffering from some defect, and therefore does not befit the values of the State. The court is not called upon to declare what, in its eyes, is the more just or correct legislation that can solve the problem that it confronts. The court is called to examine within the context of this element of sec. 8 whether the legislation that it is presented, according to its purpose and its general orientation, grosso modo, befits a democratic and Jewish state.” Moving on to the particular law, Shamgar P. alludes again to the question of whether it befits a democratic and Jewish state. His response is typical of the “skirt the issue strategy”: “The answer [to this question] is positive, because settlement of a large economic sector's debts is a worthy action, both in our experience and in the experience of other democratic countries where farmers have faced similar difficulties.” See secs. 79 and 80 of Shamgar P.'s ruling, pp. 143 and 146.

Shamgar P.'s wording is worth noting. First, note that he consistently alludes to Israel's values as democratic and Jewish, and not the other way around, as in the original. This is an indirect way of stating his position that there should not be any particular significance attributed to the fact that the word “Jewish” appears prior to the word “democratic” in sec. 2. Second, note that although he uses this (turned around) phrase in his ruling, when it comes to substantiating his position, he justifies his criticism of the lower court in terms of the experience of other democratic countries. He does not attempt to balance this turn to the democratic precedent by adding reference to Jewish precedence.

30 See the words of Levin J. in The United Mizrahi Bank, supra n. 26, at 309: “It has been accepted from earlier days, from the beginning of the growth of our independence, that the Declaration of Independence radiates the clearest expression of the national “I believe” of the people. It can be considered the identity card of the people in Israel as a free people whose government is democratic and enlightened, standing on the basis of values characteristic of a democratic entity and founded on the Jewish essence and its ethical tradition”. While acknowledging the fact that the Declaration of Independence was never granted recognition as a document that has binding constitutional authority, he continues as follows (309-10): “Accordingly, already in the first days this Court saw it fit to determine that the Declaration of Independence is worthy to serve as a primary source in interpretation of law, and beyond and prior to that, it will stand as a projector that lights our path in shaping the basic rights of the citizen and in implementing [these rights] in the life of our community in actual practice”. See also Levin J. in Clal Insurance Co. v. The Minister of Finance (1994) 48(v) P.D. 464-465 (secs. 26-27).

Note that Levin J. seeks to buttress the Declaration's position as the defining normative background of Israel's legal system. As such, he can appeal to that document when considering questions related to rights, while bypassing the words of the basic law that we are examining here. The “Jewish” element is referred to in terms of a cultural and ethical heritage, thus avoiding the need to relate to the notion of “Jewish values” in terms that draw directly from the Jewish halacha.

31 See Kol Ha'am Co. Ltd. v. Minister of Interior (1953) 7 P.D. 871. Translated into English in Zamir and Zysblat, supra n. 11, at 55-73.

32 See Shamgar P.'s discussion, ibid., at 96 (sec. 49) where he emphasizes the ceremonial aspect of the opening sections of any constitution, and applies this general observation to the words of sec. 2 (numbered 1A in Basic Law: Human Dignity and Liberty). In that section he too upholds the constitutional status of the Declaration of Independence.

33 This strategy is immanent in many rulings. Consider as an example Levin J. in Clal Insurance Co., supra n. 30, at 444-45: “Basic Law: Freedom of Occupation is grounded in the values of the State of Israel as a Jewish and democratic state. The concern for the welfare of the citizen, to take care of his needs and to ensure that his future develops in a manner commensurate with the values of the State of Israel as a democratic state, and that it befits the values of Judaism, that has always placed paramount importance on taking care of the citizen, his welfare and elementary needs”. The relevant values in this quote are (social?) democratic. The presentation of Jewish values is crafted in a manner that grants support to the primary, democratic, propositions, but do not add to them a uniquely Jewish perspective (or primary source). A different, implicit, way of including reference to Jewish values only if they cohere with democratic values is found in the following quote, from a ruling by Zamir J. in Kontram Ltd. v. The Ministry of Finance (HC 164/97, not published). In sec. 42 of his ruling, Zamir J. writes the following: “The State of Israel is a Jewish and democratic state. The Court, as a state agency, has to be guided by the values of democracy and at the same time to advance these values …” In the ensuing discussion there is no reference to Jewish values, only to democratic. The implicit assumption is that what is at stake are the democratic values of “the Jewish and democratic state.” That is why the court has to be active in not only applying them, but in advancing them too. The Jewish values are relevant, one assumes, only to the extent that they cohere with democratic values.

34 Both quotes are from Shamgar P., in United Mizrahi Bank, supra n. 26, at 143, 146 (n. 13).

35 The most prominent upholder of this position is Barak P. See his comment in United Mizrahi Bank, supra n. 26, at 296 (sec. 101): “The Court is not requested to voice its opinion on the degree of a [legislative act's] just or wise solution. But the court is still obligated — an obligation from which it cannot relieve itself — to determine whether the legislation fits the values of the State of Israel… We will have to create, over the years, a comprehensive constitutional understanding, that is based on the values of the State of Israel as a Jewish and democratic state”.

36 Elon, M., “The Way of Law in Constitution: The Values of a Jewish and Democratic State in the Light of Basic Law: Human Dignity and Freedom”, (1993) 17 Iyunei Mishpat 659 Google Scholar. Elon J. was the deputy President of the Supreme Court.

37 For a detailed (and critical) analysis of this legal standard see my article “The ‘Enlightened Public’”, supra n. 8.

38 Barak, A., “Basic Law: Freedom of Occupation”, (1995) 2 Mishpat Umimshal 208 Google Scholar.

39 Barak P. in United Mizrahi Bank, supra n. 26, at 270 (sec. 81).

40 See the words of M.K. Benizri: “They speak in the name of the enlightenment. Please note what an offence. He speaks on behalf of enlightenment, which implies that I am one of those in the dark. I prefer to be called a primitive primordial man with my excellent values, and you be called enlightened with the values of homosexuals and all of the values that you [i.e., M.K. Zuker, representative of Meretz Party, that represents liberal secular values] refer to … The Supreme Court has to know that this is a Jewish and democratic state, not only democratic but also Jewish”, in Halishkah, supra n. 6, at 26.

41 See for example Shamgar P., who alludes to Genesis 1:27 in United Mizrahi Bank, supra n. 26, at 101 (sec. 51), or Levin J., who alludes to the Jewish halacha in Clal Insurance Co., supra n. 30, 461-462 (sec. 22) and 476-77 (sec. 37). In both instances, allusion to the Jewish sources supplements the democratic values upheld by the justice as he determines the merits of the particular case. This strategy is similar to one mentioned earlier, referring to Jewish values only if they are also democratic, yet adds to it concrete sources and references that may be useful in creating common references for a Jewish and democratic legal language.

42 Most members of the Supreme Court who contend with the constitutional standing of Basic Laws have repeatedly criticized the fact that these laws do not require privileged quorum or a minimal majority approval. This fact is the basis for calls that upon its completion, the constitution ought to be ratified in a special national referendum.

43 Cheshin J. represents this approach in a most forceful manner in United Mizrahi Bank, supra n. 26. For example, on p. 409 (sec. 63) he writes the following: “Has the people of today granted its representatives in the Knesset the authority to bind the people of tomorrow in constitutional matters? …We are referring to the people of today: has it granted it representatives in the Knesset authority to legislate a constitution today? When did it grant its representatives in the Knesset a mandate to legislate a rigid constitution for Israel?” Cheshin J. rejects the majority of justice's agreement that the Knesset continues to serve as a constituent assembly when it deliberates and passes Basic Laws (in an ordinary legislative process and without having to pass Basic Laws with a privileged majority). See also his comments in pages 415 (sec. 69) and 419 (sec. 73).

44 “The concept of ‘revolution’ heralds a traumatic change in the life of a person, in the life of a people. A change from one end to another. Such was the revolution of Yeroba'am Ben-Nabat, such was the French Revolution, such was the Bolshevik Revolution. And if we are told that in March 1992 there occurred a ‘Constitutional Revolution’ in relation to human rights, it is as if the speaker adds to the event the fact that in that month a deep change occurred — a change from one end to another — in human rights in Israel”. Cheshin J. in United Mizrahi Bank, supra n. 26, at 478 (sec. 134). Cheshin J. goes on to refute this assumption, showing that the Basic Laws do indeed reflect commitment to rights, but that such commitment had been present prior to the legislation of these laws. In terms of this strategy, Cheshin represents the approach that calls for a more moderate and low-key approach to effecting social change through legislation. Citing Dworkin's analogy of the development of law to chapters of a story that is written continually, he cautions against judicial rhetoric that goes against his notion of gradual evolution of legal standards in a manner that is closely related to normative changes in Israeli society (p. 480, sec. 136). See in this respect the words of caution also voiced by Zamir J. on p. 341 (sec. 3). It is interesting to note that Cheshin J., although decidedly liberal in the value-system he presents, uses biblical and midrashic Hebrew more than any of his colleagues on the Supreme Court. His use of biblical language reflects sensitivity (or perhaps enhances sensitivity) to the diverse interpretations of legal and social reality that are available in Israeli society due to the Babel of Jewish tongues and traditions that co-exist within Israeli society.

45 United Mizrahi Bank, supra n. 26, at 488-89 (sec. 1).

46 See Lustik, I.S., “Israel as a ‘Non-Arab’ State: The Political Implications of Mass Immigration of Non-Jews”. Paper prepared for presentation at the Annual Meeting of the American Political Science Association, Boston, Mass., September 2-6, 1998 Google Scholar. This excellent paper surveys the question of the exact number of non-Jews who entered Israel as legal immigrants since the beginning of immigration from the former Soviet Union in the late 1970's.

47 The immediate political question is that of conversion. However, the long-term implications of this debate relates to the prospects of marriage between Jews, whose status as “Jews” is subject to future question by diverse rabbinical authorities. Lustik writes that “regardless of what Haredi [ultra-Orthodox Jews] may say in public, in private many Haredi groups do not consider the Russian and Ethiopian immigrants to be reliably Jewish, and hence maintain intra-communal “blacklists” for purposes of approving marriages between members of their communities and these immigrants”. This observation is based on an interview with Rabbi Moskovitz, Director of the Department of Eruv Affairs, Tel-Aviv-Jaffo, 31 January 1998. In Lustik, “Israel as a ‘Non-Arab’ State”, supra n. 46, at 13, n. 29.

48 Some critics may claim that I place too much emphasis on the effects of the “purpose” section on political discourse in Israel. In my understanding, this section has become part of the political horizon, in the form of a future decision that has considerable political consequences. Astute politicians detect this probable development, and are preparing the background for influencing the future decision. Astute politicians in Israeli politics are often also shrill. Taking this into account, my point is that if one removes the “purpose” section from Israel's political horizon, then the political stakes invested in this issue will greatly diminish.

49 See The Report of the Committee For Examination of the Structure of Ordinary Courts in Israel (Jerusalem, the Ministry of Justice, August 1997) 133–145 Google Scholar. For the reformed role of the Supreme Court, see 139. See also Hatzaot Hok Administrative Courts, 1997 (H.H. 13 January 1997, No. 2570, pp. 105-112).

50 Zamir and Zysblat, supra n. 11, at 154, 157.

51 See supra n. 24.

52 See proposal for Basic Law: Freedom of Religion, prepared by Marom, M.K. and others, and published as an advertisement in Ha'aretz, 17 June 1998, p. A5 Google Scholar.

53 The Ministry of Justice has circulated three new Basic laws dealing with human rights: Basic Law: Rights in the Legal Process, Basic Law: Freedom of Speech and Association, and Basic Law: Social Rights. All three include a “purpose” section, worded in terms identical to the “purpose” section analyzed in this essay.

54 See the sharp critique of the former President of the Supreme Court, Landau, P., in “The Supreme Court as Constitution Maker for Israel”, (July 1996) 3:2 Mishpat Umimshal 697–712 Google Scholar.

55 I thank Prof. Frances Raday for drawing this point to my attention. See her discussion of the pervasive violation of the right to equality which resulted from the status quo on state and religion in the pre-1992 period in “Religion, Multiculturalism and Equality” (1996) 25 Is. Yrbk Human Rights 193–241 Google Scholar.