:
The Values of the State of Israel as a Jewish and Democratic State
by Aharon Barak *
(August 2009)
The Importance of the
Values of a Jewish and Democratic State
Despite a common misconception,
Israel does have a formal constitution as well as judicial
review of constitutionality. The Constitution
is embodied in several documents called
the Basic Laws. Two of these basic laws –Basic Law: Dignity and Libert and Basic Law: Freedom of Occupation – were constituted
in 1992. Their main focus is human rights
and they serve as the Israeli equivalent
of the Bill of Rights
When the Basic-Law:
Human Dignity and Liberty and the Basic-Law:
Freedom of Occupation were constituted,
new language was introduced into Israel’s
legal and social culture:
“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.”
This expression’s
importance is two-fold. First, it determines
the general purposes that lie beneath these
two basic laws: To protect human dignity
and liberty and the freedom of occupation, “in
order to establish in a Basic Law the values
of the State of Israel as a Jewish and
democratic State.” These values serve,
therefore, as an interpretive criterion
in determining to what extent the provisions
of the Basic Law apply. For example,
protection of property and privacy was
intended “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.” There is, however
more to the matter than this. It is only
natural that the interpretive guideline
of the values of the State of Israel
as a Jewish and democratic state should
not be restricted merely to the basic
laws about human rights. It is inconceivable
that for the purposes of the Basic Law:
Human Dignity and Liberty and the Basic
Law: Freedom of Occupation The values
of the State of Israel as a Jewish and
democratic State must be recognized,
whereas for other purposes, beyond the
scope of the basic laws that refer to
human rights, the values of the State
of Israel would be different.
In fact, doing so would
lead to differential constitutional interpretation.
Purposive constitutional interpretation
relates to provisions of the constitution
as a unity. If the values of the
State of Israel as a Jewish and democratic
state are enshrined in the basic laws
that refer to human rights, they must
also apply outside the scope of these
basic laws in interpreting all of the
provisions of the Israeli constitution
and statutes.
Second, the importance
of the expression “the values of
the State of Israel as a Jewish and Democratic
State” goes beyond interpretive influence.
The values of the State of Israel are not
merely a criterion for interpreting our
human rights, but they are also constitutional
criteria for limitations on human rights.
The limitation formula in the Basic Law:
Human Dignity and Liberty (a similar one
can be found in the Basic Law: Freedom
of occupation) states:
“The
rights under this Basic Law may only
be affected by a law that is befitting
the values of the State of Israel, is
intended for a proper purpose, and to
an extent that is not excessive or by
regulation enacted by virtue of express
authorization in such law.”
Within the framework of
this clause, the values of the State of
Israel serve as a criterion for the constitutionality
of a statute that limits human rights enshrined
in the Basic Laws. A statute that limits
human rights is constitutional only if
it meets several requirements. One of these
requirements is that the statute befits
the values of the State of Israel as a
Jewish and democratic state. Indeed, a
statute that limits a protected human right
will be unconstitutional, even if it is
not excessive, if the limitation of the
human right does not befit the values of
the State of Israel as a Jewish and democratic state.
It
follows that the importance of the values
of the State of Israel as a Jewish and
democratic state is two-fold. They constitute
criteria for a purposive interpretation
of the provisions of the Basic Laws. This
purposive interpretation is what determines
the extent to which the Basic Laws apply.
All laws are interpreted in accordance
with this interpretation. In addition,
the values of the State of Israel as a
Jewish and democratic state constitute
an essential condition for the validity
of a statute that limits a constitutional
human right. It should be remembered that
the normative status attributed to the
values of the State of Israel as a Jewish
and democratic state is not the same as
the status of other values that constitute
a part of the Israeli legal system. The
normative status of the values of the State
of Israel as a Jewish and democratic state
is a constitutional supra-legislative normative
status. Ordinary legislation that limits
a constitutional human right will be declared
unconstitutional if it does not befit the
values of the State of Israel as a Jewish
and democratic state. Therefore the expression ‘the
values of the State of Israel as a Jewish
and democratic State’ is of great
legal importance. It has constitutional
status. It is not merely a verbal formula
that contains no normative message. This
formula has an important normative significance.
It influences both the determination of
the scope of human rights and the protection
given to them under Israeli law. That is why it is
so important to answer the questions:
What are the values of the State of Israel
as a Jewish and democratic state? How
are they determined? What are their weights?
And what is the relationship between
the values of the State of Israel as
a Jewish state and its values as a democratic
state?
A Solution Through Consensus
The expression ‘the
values of the State of Israel as a Jewish
and democratic state’ is a vague
expression. The text does not
supply an unambiguous answer. Determining
the scope of this expression’s
application will require a significant
amount of ‘our’ attention
in the future. When I say ‘our’ attention,
I am referring to the whole of Israeli
society, and not merely the legal profession.
Indeed, the expression
‘the values of the State of Israel
as a Jewish and democratic state’ in
the Basic Laws reflects the uniqueness
of the State of Israel and Israeli society.
We are not like other people; we are not
like other nations. We are a democracy,
and our values are the values of every
democracy. But we are also
a Jewish State, and therefore our values
are the values of a Jewish State. All of
Israeli society will need to face this
duality. Philosophers and researchers,
rabbis and professors, yeshiva students
and university students – all the
strata of Israeli society – will
need to ask themselves what are the values
of the State of Israel as a Jewish and
democratic state. We also expect the contribution
of philosophers and researchers from around
the world.
The values of the State
of Israel as a Jewish State
What are the values of
the State of Israel as a Jewish state?
Indeed, the values of the State of Israel
as a Jewish state distinguish it from all
other democratic states. There are many
democratic states in the world, but only
the State of Israel is a state that is
not only democratic, but also Jewish. It
is worth noting the words of Israel’s Declaration of Independence:
In
Israel arose the Jewish people, there
their spiritual, religious, and political
character was formed, there they lived
as a state, there they created cultural
assets for the nation and for all of
humanity, and bequeathed the eternal
book of books to the whole world.
A “Jewish state” is,
then, a state of the Jewish people. “The
natural right of the Jewish people is to
be independent in their own sovereign state.” This is the state
to which every Jew has the right to move
and to become a citizen; the ingathering
of exiles is one of its basic values. A
“Jewish state” is a state whose
history is integrated and intertwined with
the history of the Jewish people, whose
main language is Hebrew, and whose holy
days reflect the Jewish heritage. A
“Jewish state” is a state that
perpetuates the memory of the Jews massacred
in the Holocaust, and that was designed
to be “the solution to the Jewish
problem, resulting from a lack of both
a homeland and independence, by renewing
the Jewish state in the land of Israel.” A
“Jewish state” is a state which
cultivates Jewish culture and Jewish education. A
“Jewish state” is the “realization
of the aspiration of generations for the
redemption of Israel” is a state in which
the values of "freedom, justice,
equity, and peace of Israel's heritage,” are its values. A “Jewish
state” is a state whose values
are also drawn from its religious tradition,
a tradition in which the Bible is the
most basic book, and the prophets of
Israel are the foundations of its ethics. A
“Jewish state” is a state in
which the values of the Torah of Israel,
the values of the Jewish heritage, and
the values of the Halacha(religious
law) are among its most basic values.
This interpretation of “the
values of the State of Israel as a Jewish
state,” leads to the conclusion that
the values of the State of Israel have
two primary aspects. One is the Zionist
aspect. The other is the aspect of heritage,
or tradition. The Zionist aspect is expressed,
for example, in the right of every Jew
to move to Israel, and become an Israeli
citizen – a right guaranteed in the Law of Return (1950).The heritage
aspect is expressed, for example, in
the law which states that a gap (lacunae)
in legislation, which cannot be filled
by analogy, must be completed
according to the “principles of
freedom, justice, equity, and peace of
Israel's heritage.” Indeed, it would be
a one-dimensional vision if we were to
only equate the values of the State of
Israel as a Jewish State to the heritage-law
aspect. Zionism, on the one hand, and
Jewish heritage, on the other hand, has
stamped their seal on the Jewish character
of the state of Israel. It may be pointed
out that there is a tight connection
between the Zionist aspect and the heritage
aspect. There is also a connection between
these two and the values of the State
of Israel as a democratic state. Nevertheless,
an objective perspective must be based
on the distinction between these various
elements, even if the interpretive trend
must synthesize them.
A Jewish State: The Heritage
Aspect
What are the values of
the State of Israel as a Jewish state from
the heritage aspect? We learn about these
values from the “world of Halacha”
(religious law). They include the values
of the State of Israel as a Jewish state
in various levels of abstraction; from
a specific law on a certain issue to abstract
values such as “love your neighbor
as yourself” or
“do that which is honest and good.” It contains particular
and universal values; it contains values
developed over generations throughout
the history of the Jewish people. There are values which
compliment each other and values which
contradict each other.
A Jewish State: The Zionist
Aspect
What are the values of
the State of Israel as a Jewish State from
the Zionist aspect? The
world of Zionism views the state of Israel
as a national home for the Jewish people;
it is the Law of Return, that enables every
Jew in the world to view Israel as his
or her home; it is the revival
of the Hebrew language and the development
of Hebrew culture; all these and more
make Israel a Jewish state, even for
a non religious Jew.
The Values of Israel as
a Democratic State
The values of the State
of Israel as a democratic state are the
same values that, at any given time, reflect
the basic perceptions of the modern democracy. This democracy is
built, in essence, on two foundations.
First, it is a government of the people.
A democratic regime is a one in which
the people determine their own destiny.
The people act through their representatives,
and the representatives make decisions
by a majority vote. Democracy, in this
sense, identifies itself with majority
rule. The other foundation upon which
democracy is built is separation of powers, the rule of law, independence of the
judiciary and human rights. Only a combination
of these two foundations leads to true
democracy. Indeed, a regime in which
the majority deprives the minority of
basic rights is a majoritarian regime,
but it is not a democratic regime. Democracy
cannot be established without human rights. Democracy
is a delicate balance between majority
rule and human rights.
The Relationship Between
the Various Components
There may be tensions
and contradictions between the values of
Israel as a Jewish state and the values
of Israel as a democratic state. There may also be
a contradiction between the values of
Israel as a Jewish state, from the aspect
of heritage, and the values of Israel
as a Jewish state, from the Zionist aspect. An appropriate analysis
does not have to intensify these contradictions.
On the contrary, a purposeful analysis,
based on constitutional unity and normative
harmony, aspires to find that which is
unifying and common, while preventing
contradictions and reducing points of
friction. We must strive to find the
common denominator and synthesis between
the values of Israel as a Jewish state
and the values of Israel as a democratic
state.
Indeed, we must search
for an integration between the different
values of the State of Israel – as
a Jewish and democratic state – in
an attempt to create a homogeneous and
inclusive perception. This is possible.
One does not have to come at the expense
of the other. Through mutual concessions,
it is possible to find the proper balance.
Thus, for example, if within the world
of Halacha, there is a stream of
particularism and a stream of universalism,
it would be appropriate for the interpreter
to adopt the stream of universalism, since
this stream is more easily integrated with
the values of Israel as a democratic state. Similarly, if from
the perspective of democracy, there are
various ways of viewing interpersonal
relationships, it is appropriate to choose
that approach that is similar to the
values of Israel as a Jewish state.
The Failure of Completeness
and Harmony – What Next?
The interpreter aims for
completeness and harmony between the values
of the State of Israel as a Jewish State
and its values as a democratic state. We
can expect there to be cases where this
ambition will not be realized: the various
attempts to find a common denominator are
likely to fail; the values may be so diametrically
opposed to one another that a synthesis
between them is impossible, or becomes
irrelevant for the solution of the problem
that requires a decision. What should the
judge do in such a situation? This is a
matter for judicial discretion. In exercising this
judicial discretion, judges may not toss
a coin; they must act rationally; they
must act objectively; they must choose
the solution, which more than any other
solution, is in accord with the general
structure of the legal system; they must
provide a solution that is in accord
with the other purposes that underlie
the Basic Laws, according to which:
Fundamental
human rights in Israel are founded upon
recognition of the value of the human
being, the sanctity of human life, and
the principle that all persons are free;
these rights shall be upheld in the spirit
of the principles set forth in the Declaration
of the Establishment of the State of
Israel.
They must provide the
solution that is consistent with our constitutional
history; they must provide the solution
that is consistent with the consensus of
Israeli society; they must provide the
solution that connects with the past and
creates a basis for development in the
future. All of these impose a heavy burden
on the judiciary. They are accustomed to
discharging it. They discharge it in other
situations where they must exercise their
discretion. They will discharge it also
in this special situation.
On Equality
One of the significant
aspects of the values of Israel as a democratic
state is the value of equality. This was expressed
in the Declaration of Independence, among
other places, which states that "the
State of Israel . . . will establish
equal social and political rights for
all its citizens without distinguishing
on the basis of religion, race or gender." Indeed, the state
must honor each individual's basic right
to equality. There is no democracy without
equality.
All rights, upon which
democracy is based, are built on equality. Equality lies at the
foundation of social existence. An individual
integrates into the general fabric of
society and plays his part in the construction
of society with the knowledge that others
are doing the same. The need to guarantee
equality is natural to the human being.
It is based on considerations of justice
and decency. A person who asks for recognition
of his rights must also acknowledge the
right of others to receive similar recognition.
Nothing is more destructive to society
than the feeling of its sons and daughters
that they are being treated in a discriminatory
manner. The feeling of discrimination
is one for the most difficult feelings. It strikes at the
uniting forced within society and harms
each person's right to self-determination.
Do the values of Israel
as a Jewish state detract from the principle
of equality? The answer is negative. As
values of the State of Israel as a Jewish
state are also values of a democratic state,
they support the principle of equality.
From the heritage aspect of the State of
Israel, equality is a basic value. It is
expressed in the imperative "you shall
have only one law, the stranger shall be
as a citizen". Justice Elon rightly
stated:
The very foundation
in the religious world is the idea that
every person is created in the image
of God (Genesis 1:27). Thus begins the Jewish Bible, and from it Jewish law
derives the basic principles with regard
to the value of the human being – each
person as he is – his equality
and his love.
This idea is also part
of the Zionist aspect of the state. Israel
is a Jewish state, because the Jewish people
congregated there, and it is the solution
to their problems. Every Jew has the right
to move to Israel and to become a citizen. This does not offend
the essence of equality. Thus, when the purpose
underlying the foundation of the state
is that it serve as a home for all Jews
as Jews, the right of every Jew to move
to Israel does not constitute discrimination
against those who are not Jewish. Rather,
it recognizes those differences demanded
by equality. However, since the establishment
of the state, it must treat its citizens
equally. True, a special key to enter
the home was given to the Jewish people.
However, once the individual is inside
the house, he enjoys the same rights
as every other member of the house. There
is no discrimination between the members
of the house.
Zionism was born to negate
racism. It learned the extent to which
racist treatment, dictated by religious
or national belonging, can degrade human
character. Thus Zionism is opposed to any
patterns of discrimination on the basis
of religion or nationality. Justice Barezon
spoke on this subject when he said:
When we were exiled
from our land and dispersed over the
land, we were sacrificial lambs to the
nations in which we lived, and in every
generation we tasted the bitter taste
of persecution, oppression and discrimination
simply because we were Jews 'whose religion
differs from that of all other nations'.
We learned from this bitter experience,
which burrowed itself deep into our national
and human consciousness, that it is appropriate
to expect that we will not follow in
the perverted ways of other nations,
and in the renewal of our independence
in the State of Israel, it is incumbent
upon us to guard against any hint of
discrimination or differential treatment
against every law abiding non-Jew living
among us and who wants to live among
us in his own way, according to his own
religion and beliefs . Hatred of strangers
is a double curse: it slaughters the
image of God of the one who hates and
it thrusts evil on the one who is hated,
through no fault of his own. We must
act in a humane and patient manner towards
all those who are created in the image
of God and to uphold the broadest principle
of equality of rights and obligations
among all people.
Thus, Zionism came to
establish a Jewish state and it succeeded.
There is no doubt that Israel is a Jewish
state according to its heritage, symbols,
holidays, language, culture and other indicators.
Like other nation-states, Israel acknowledges
that it must treat every person in its
midst equally, even if he is part of a
non-Jewish minority.
Equality Without Regard
for Religion, Race and Gender
Equality extends across
all aspects of life within the state. Therefore,
there must be equality between members
of different nations, communities, races,
parties, genders, ages, viewpoints and
bodies. It should be noted
that this list is not exhaustive. I will
focus on one aspect of equality – equality
between Jews and Arabs. This is discussed
in the Declaration of Independence which
states that the State of Israel will
uphold equality between its citizens "without
regard for religion, nationality, or
gender." Hence, every citizen,
without regard for religion or nationality,
is entitled to equality. A state may
not discriminate between its citizens
on the basis of religion or race. On
this background, we must also understand
the decision by the Supreme Court according
to which the state must treat Jews and
Arabs equally in the allocation of state
lands. This is an elementary
demand of equality. An Arab seeking to
acquire an apartment in Upper Nazareth
from the state has a right to the same
terms and conditions that the state offers
to Jews. There is nothing special about
this apartment that justifies different
treatment to Jews and Arabs.
Zionism is not based on
discrimination between Jews and Arabs.
This is not how Zionism was viewed by the
Declaration of Independence, which states
that "all members of the Arab people
who are residents of the State of Israel
must maintain the peace and play their
part in the construction of the state on
the basis of full and equal citizenship." This is not how Zionism
was viewed by the Founding Fathers – Herzl, Jabotinsky, Ben-Gurion, and others – who
stressed time and time again that the
state of the Jews is a state in which
full equality between Jews and Arabs
will prevail. This is not how Zionism
was viewed by the Supreme Court. From
its very beginning, the Court stressed
time and time again the equality between
Israel's citizens on the basis of religion,
nationality and gender.
Therefore, the court’s
decision that the allocation of state lands
to Jews and Arabs must be done on the basis
of equality, is neither an anti-Zionist
nor post-Zionist decision. It is a Zionist
decision in the fullest sense of the word.
It is the fulfillment of Zionism, which
views Israel as a national home for Jews,
inside whose walls equality prevails amongst
all its residents. Thus, only in a national
home built on the principles of equality,
can the dignity of man can stand the test
of time. Only a state that treats all its
members equally can be accepted into the
family of nations supporting freedom. Only
a society based on the foundations of equality
can live in peace with itself.
Bibliography/Sources:
* President
(ret.) of Israeli Supreme Court, Visiting
Professor of law, Yale law School;
Professor of law, Interdisciplinary
Center (IDC)Herzliya, Israel.
[1] See
CA 6821/93, United Mizrahi Bank Ltd v.
Migdal Cooperative Village, PD 49(4),
221 (1995); HCJ 212/03 Herut National Movement v. Chairman of the
Central Elections Committee of the Knesset,
PD 57(1) 750 (2003). See also Daphna
Barak-Erez, From an Unwritten to a
written Constitution: The Israeli Challenge
in American Perspective, Colum. Hum.
Rts .L. Rev., 309
(1995); Aharon
Barak, The Judge in a Democracy 20
(2006); Suzie
Navot, The Constitutional Law of Israel 42
(2006); Aharon Barak, Human rights
in Israel, 39 Isr.
L. Rev. 12 (2006); Gidon Sapir, The
Israeli Constitutional Revolution - How
Did it Happen?, Bar Ilan Univ. Pub
Law Working Paper No. 08-02 (2008) available
at SSRN: http://ssrn.com/abstract=1082230;
Amnon Rubinstein, Israel's Partial
Constitution, in (this book).
See Mizrahi Bank, id;
HCJ 1715/97 Israel Investment Managers
Association v. Finance Minister, PD 51(4)
367 (1997); HCJ 6055/95 Tzemah v. defense
minister PD 53(5) 241 (1999); HCJ 1030/99
Oron v. Chairman of the Knesset, PD 56(3)
640 (2002); HCJ 7052/03 Adalah v. Minister
of Interior [2006] (1) IsrLR 443. See
also Aharon Barak, The Constitutional
Revolution- 12th Anniversary, 1 Law and Business,
3 (2004) [Hebrew]; Navot, id,
at 45.
http://amnonrubinstein.com/index.php?option=com_content&task=view&id=687&Itemid=101
See
HCJ 6698/95 Ka’adan v. Israel Lands
Authority, PD 54(1) 258 (2000); HCJ 2859/99
Mkarina v. Minister of Interior, PD 59
(6) 721 (2005).
See
Asa Kasher, Jewish and democratic
state - philosophical sketch, 19 Theoretical
in Law 729 (1995)
[Hebrew]; Asher Maoz, values of the
Jewish and democratic state, 19 Theoretical
in Law 547 (1995)
[Hebrew]; Avigdor Lbontin , Jewish
and democratic state, 19 Theoretical
in Law 521 (1995) [Hebrew]; Ruth
Gabizon, Israel as a Jewish and democratic
state: tensions and risks (1999)
[Hebrew].
Declaration
of the Establishment of the State of
Israel (14.5.1948)
See
sec. 2 State Education Law, 5713 (1953).
See
HCJ 5016/96 Horev v. Minister of Transportation,
PD 51(4) 1, 43 (1997); CrimA 10687/02
Hndiman Do it yourself, Ltd. v. State
of Israel, PD 57(3) 1, 5 (2003).
See
CA 191/51 Skornik v. Skornik, PD 8(1)
141 (1954). On the role of Jewish law
in the state of Israel see Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel, 2 ISR.
L. Rev. 515 (1967); Menachem
Elon, Sources and nature of Jewish
law and its application in the State
of Israel part II, 3 Isr.
L. Rev. 88 (1968); Izhak Englard, Problem
of Jewish law in a Jewish state,
3 Isr.
L. Rev. 254 (1968); Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel part III, 3 Isr.
L. Rev. 416 (1968); Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel part IV, 4 Isr.
L. Rev. 80 (1969); Haim H Cohn, Jewish
law in Israel, in Jewish
Law in Legal History and the Modern World 124
(Bernard S. Jackson ed.,
1980); Sinai Deutch, Jewish law in
the State of Israel, 1 Justice 21
(1994).
Leviticus
19:18.
Deuteronomy
6:18.
See
Menachem Elon, Basics Law: The legislation
and Interpretation- How and where?,
12 Studies
in Law 253 (1995)
[Hebrew].
See
the sources that cited in supra note
17. See also EA 2 /88 Ben Shalom v. Central
Elections Committee of the Knesset, PD
43(4) 221, 230 (1989).
See
Joseph Raz, The Rule of Law and its
Virtue, in The
Authority of Law: Essays on Law and Morality 210
(1979); Richard Fallon, The Rule of
Law as a Concept in Constitutional Discourse, 97
Colum. L. Rev.1 (1997); Democracy
and the Rule of Law (José María
Maravall & Adam Przeworski eds.,
2003); Brian
Tamanaha, On The Rule of Law: History,
Politics, Theory (2004);
Jeremy Waldron, The Concept and the
Rule of Law, 43 Ga.
L. Rev. 1 (2008).
See Aharon
Barak, Interpretation in Law, vol. 3:
Constitutional Interpretation 323
(1994) [Hebrew]; Ruth
Gabizon ,Jewish and democratic state:
a political identity, ideology and Law, 19 Theoretical
in Law 631 (1995) [Hebrew]; Gabizon,
Israel as a Jewish and democratic state:
tensions and risks, supra note
13.; Elon, The
values of a Jewish and democratic state
- the task of reaching a synthesis, supra note 14; Rubinstein, Can
Israel be both Democratic and Jewish?, supra note
5.
See EA 2/84 Neiman v. Central
Elections Committee of the Knesset, PD
39(2) 225, 293 (1985):" It
is common knowledge that abundant differences
of opinion and conflicting approaches
mark also Jewish thought throughout the
ages - even the Halacha system itself….
It goes without saying that all these
views and approaches have contributed
together to deepening and enriching Jewish
thought at all times. But whoever embarks
upon the quest for knowledge must distinguish
between statements made for particular
times and circumstances and statements
made for all times, between a generally
accepted view and an exceptional one,
and the like distinctions and implications.
From this vast and abundant treasure,
it is possible to gather much that is
significant for the requirements of one's
own generation and age, so as to answer
contemporary needs and at the same time
replenish the treasure of Jewish thought
and the heritage of Israel." (Judge Menachem
Elon).
See
Tibi, supra note 18, at 19; Design, supra note
11, at 54: [T]he constitutional interpreter
should make an effort to achieve an accord
and harmony between the values of the
State of Israel as a Jewish state and
its values as a democratic state. Indeed,
the expression ‘the values of the
State of Israel as a Jewish and democratic
state’ should be regarded as one
idea that is comprised of two elements
(Jewish and democratic). Between the
two there should be a synthesis and compatibility. ‘Judges,
as faithful interpreters of the constitutional
text, should do everything in order to
achieve this synthesis’ .The interpreter
should find what is common to both and
what unites them. (Judge Aharon
Barak). See also CA 506/88 Shefer v. State
of Israel, PD 48(1) 87, 167 (1994):"It
is in the nature of such a synthesis
that it seeks what is common to both
systems, the Jewish and the democratic,
the principles that are common to both,
or at least that can be reconciled with
them"(Judge Menachem Elon).
On
judicial discretion see Aharon Barak, judicial
discretion (1989)
CrimA
3632/92 Gabay v. State of Israel, PD
46(4) 487, 490 (1992).
HCJ 392/72 Berger
v. Regional Committee for Planning and
Construction, Haifa Region,
PD 27(2) 764, 771 (1973).
See
HCJ 6924/93 Association for Civil Rights
in Israel v. Government of Israel, PD
55(5) 15, 27 (2001). See also Elyakim,
Rubinstein, On Equality for Arabs
in Israel, in Paths
of Government and Law: Issues in Israeli
Public Law 278 (2003)
[Hebrew]; Itzhak Zamir, Equal rights
to Arabs in Israel, 9 Mishpat
u Mimshal [Law and
Government] 11 (2005) [Hebrew].
See Yacobson
& Rubinstein, supra note
17.See also David
Ben-Gurion, We and Our Neighbors 32
(1931) [Hebrew]; Ze'ev
Jabotinsky, Eretz Israel- Two Nationality,
in Revisionist
Zionism 131 (1985) [Hebrew].
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