Justice in a Jewish State
By Mike Fenster
Beginning this week, Reflections will occasionally reprint articles written by lay members of our communities and published in the various community magazines, with the aim of giving thoughtful and engaging writing by our members a broader airing. The present piece was originally published in slightly different form in the Rosh Hashana 2015/5776 edition of Kol HaKehila, the semi-annual magazine of Kol Nefesh Masorti Synagogue.
The pieces chosen for reprinting in Reflections can be on any topic that would be of interest to the broader Masorti community. If you would like to suggest a piece for reprinting, please contact Jo Mitchell at email@example.com. Pieces may have to be condensed to fit the Reflections length restrictions.
As Israel moves into late middle age (68 next birthday), the fundamental questions that accompanied its birth are still with us. What should be the values of the State? What is meant by the term ‘a Jewish State’? Should Israel be a democratic 21st-century state for Jews, or does a ‘Jewish’ state mean something more?
Israel’s Declaration of Independence had set out various principles for the first Jewish state in 2000 years, but had avoided mentioning democracy. No constitution has ever been written, but in 1992 the Knesset passed a Basic Law of Human Dignity and Liberty ‘in order to establish … the values of the State of Israel as a Jewish and democratic state’. Two years later, the Rabin government amended this Basic Law to add: ‘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’.
How does one reconcile values of a state that is both Jewish and democratic? What does this mean in practice? Last year we studied democracy in Jewish thought with Rabbi Joel Levy and it is clear, at least to me, that democracy isn’t intrinsic to Judaism. For many centuries, when the non-Jewish states were monarchies, Jewish thought was more concerned with the idea of monarchy versus religious leadership, and how a ‘secular’ Jewish monarch would relate to the spiritual authority. Granted we did not have to hand all political power to rabbis and priests, but Jewish tradition grappled with limited ideas of democracy only once they were already being debated in the non-Jewish world, and then wondered how to apply them in the limited sphere of diaspora Jewish communities. There was no Jewish imperative for democracy. So can a state be truly Jewish if it is democratic?
When Herzl wrote in Der Judenstaat in 1896, ‘We shall keep our priests within the confines of their temples in the same way as we shall keep our professional army within the confines of their barracks – neither must interfere in the administration of the State’, he envisaged a European-style autocracy (he favoured an aristocratic republic on the Venetian model rather than a monarchy), and definitely not a theocracy. But the first Ashkenazi Chief Rabbi of Israel, Isaac Herzog, had other ideas. In July 1948 he wrote, ‘We had imagined that immediately after the declaration of the State, those responsible for these matters would consult with the Torah authority in the land in order to determine what to do according to the Law’. This somewhat naive view clearly expresses disbelief that secular law, based not on halakhah but on Western legal systems, could ever take precedence in those areas of law where there was already a 2000-year-old Jewish legal tradition. Others in the religious community hoped the new Israeli state would be wholly and completely subject to the law of God. No wonder that there was no agreement on a constitution in the years after independence.
Not everyone in the religious camp thought the State should be subservient to Jewish law. The most radical religious opponent of that view was the iconoclast Yeshayahu Leibowitz, who wrote, ‘the function of the state is essentially secular. It is not Service of God. … Religion, that is, man’s recognition of his duty to serve God, cannot be integrated with the machinery of government.’
Aharon Barak, a member of the Supreme Court for 28 years, grappled every day with these questions, and his understanding of what a Jewish and democratic state should be sounds about right to me. In an article from 1992, he explained his conception of the Jewish values of the state: ‘The state is Jewish not in the halakhic sense, but in the sense that Jews have the right of Aliyah, and that their national culture is the culture of the state (expressed for example in the language and in the days of rest). The foundational values of Judaism are the foundational values of the state. I mean the values of love of mankind, the sanctity of life, social justice, “doing what is good and right”, the protection of human dignity and the rule of law over the legislature etc. – the values Judaism has bequeathed to the world at large. The values of the state of Israel as a Jewish state are those universal values … which have grown out of Jewish tradition and history. Alongside are the values of the state of Israel which grow out of the democratic nature of the state. The merger and concurrence between these will forge the value of the state of Israel.’
Moti Yogev, an MK from the ruling coalition’s Israel Beitenu party, declaimed last year in the Knesset (in response to a Supreme Court decision upholding the demolition of two illegal buildings in Beit El) that ‘we have to take a bulldozer to the High Court of Justice … we will take care, in an ethical and just way, that the Knesset and government will rule in Israel, and that the judiciary will know its place’. Was this an attack on the judicial system of a secular democratic state by those who support narrow Jewish values? Or maybe it is the Jewish values of Aharon Barak’s Supreme Court that were under attack by demagogic democrats who have a majority in the Knesset. Israel is never simple.
Mike Fenster is a longstanding member of Kol Nefesh Masorti Synagogue.