Opinion | Israel’s Unresolved Democracy Problem

By Marshall Breger

How can the Palestinians recognize a Jewish state if Israelis don’t know what that means?

In 1958, David Ben-Gurion wrote to 47 leading Jewish intellectuals—or, as he phrased it, “Sages of Israel”—asking for their understanding of the relationship between Jewish and national identity. The respondents included Abraham Joshua Heschel, Menachem Mendel Schneerson, Felix Frankfurter and Isaiah Berlin; their answers reflected the rich pluralism of Jewish life throughout the world. But this wasn’t merely an intellectual exercise. Ten years after the founding of the State of Israel, even its prime minister was unsure how to define the country’s Jewish character.

That question has recently taken on geopolitical relevance as Prime Minister
Benjamin Netanyahu demands that the Palestinians not only recognize the State of Israel but accept it as a “Jewish state.” Even U.S. Secretary of State John Kerry adopted that locution in his latest peace process framework. For some, this demand is a ploy to throw a spanner into any peace negotiations by forcing the Palestinian Authority to—in its view— abandon the Arabs living in Israel. But for most it meets a psychological rather than a legal or strategic need. It is a way of saying that Israel will never allow itself to become a bi-national state—that is to say, a single “state of all its citizens” in which both Arabs and Jews have full voting rights. For many, the demand for the recognition of Israel as a Jewish state is designed to lock in the status quo in case of increasing Zionist fatigue among Jews or a rising demographic tide among Arabs.

The canonical texts do not fully resolve the question. The Balfour Declaration, of course, spoke of “a national home for the Jewish people.” (Earlier drafts were more forceful, asserting that “Palestine would be reconstituted as the National Home of the Jewish People.”) The Israeli Declaration of Independence in 1948 declared “the Jewish State in Palestine.” But does this mean a state of Jews or a state for Jews?

The plain meaning would suggest a state based on some understanding of Jewish character or belief. For many religious Jews, that means a state based on halacha, or Jewish law. This was the goal of rabbis such as Kopel Kahana, a World War II refugee and professor at Cambridge and at Jews’ College in London, who argued, “that a civilized people should administer its own laws in its own country is a proposition…which should not call for discussion.” This is also the view today of most haredim and many religious Zionists.

But the idea that Israel’s laws should be controlled by halacha is anything but mainstream, even among the religious. Religious Zionism traditionally sees the Jewish state as a sign of the fulfillment of the biblical promise to Abraham and indeed as a sign that the Messianic promise will ultimately be fulfilled. Even Rabbi Abraham Isaac Kook (1865-1935), the first Ashkenazi chief rabbi of Palestine under the British Mandate, viewed the irreligious kibbutzniks as part of God’s plan for the people of Israel whether they knew it or not.

Cultural Zionists like the writer Ahad Ha’am (1856-1927) saw Palestine as a beacon of a revived Jewish culture and were prepared to live as part of a Jewish minority in Palestine as long as they had entrenched group cultural rights. But Ha’am lost out in the intramural pre-state Zionist wars. His ideas of cultural renewal seem quaint and utopian when placed against the burdens of recent Jewish history.

Others such as Ben-Gurion understood a Jewish state to mean Jewish political sovereignty. And this is certainly the conventional view of Zionism today. But to maintain sovereignty, a Jewish majority (at least in the foreseeable future) is necessary. Without a Jewishly committed majority—a majority of Israelis who wish and choose to be Jewish—a Jewish state can maintain a Jewish character only so long.

This is why the question of Israel’s other self-proclaimed identity—democratic—becomes so central. Since the country’s first Basic Law, a quasi-constitutional document, spoke of a “Jewish and democratic state” in the 1980s, that locution quickly became the legal mantra for discussion of the nature of Israel. The term has taken on aspects of a culture war, with the “right” honing in on Israel’s Jewish nature and the “left” focusing on the rule of law and emphasizing Israel’s democratic character. Some religious Knesset members have proposed legislation stipulating that in a conflict between Jewish and democratic norms, the Jewish norm will always win out. Some settlers have stated they were jettisoning the democratic secular state of Israel for the “Davidic” kingdom in Judea and Samaria.

But the greater threats to the “Jewish and democratic state” are subtler, less about democracy as a form of government than about the rights of minority individuals and minority groups under that government. Examples abound: They might include government subsidies to Jewish cemeteries with no corresponding subsidies for Muslim cemeteries; the promotion of Jewish settlement in the Galilee by subsidies and zoning accommodations with no such opportunities for non-Jews; the creation of new Jewish towns and villages but no new towns for the Arab population; or the lack of family reunification for Israeli Arab citizens in the context of aliyah rights for diaspora Jews.

While we debate whether the Palestinians must recognize Israel as a Jewish state, the equally important question is often ignored: What does it mean for Israel to be a Jewish and democratic state? Does a Jewish democratic state presuppose a Jewish majority? Under what conditions should Israel deny minority rights, and under what conditions will it respect them? Can a Jewish state treat Arab and Jewish citizens differently? Must it entrench the political rights of Israeli Arabs as a group? Dare it? Only when we have concrete answers to those questions will a “Jewish and democratic state” take on meaning. A state that is not Jewish will reject our religious and historical roots as a people. A state that is not democratic will not survive in the modern world.

Marshall Breger is a professor of law at Catholic University.