VALUES OF A JEWISH AND DEMOCRATIC STATE

In Israel, in 1992, two Basic Laws were passed: "Basic Law: Human Dignity and Freedom," and "Basic Law: Freedom of Occupation." These laws have constitutional status, and enumerate a series of rights protected by the Basic Laws (see *Human Dignity and Freedom; *Rights, Human). Section 1a of the Basic Law: Human Dignity and Freedom, declares that "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." Similarly, Section 2 of the Basic Law: Freedom of Occupation, contains a similar provision regarding freedom of occupation. These sections outline the interpretive principles of the Basic Laws, according to which the court is required to interpret and apply the values entrenched in them, and interpret Israeli legislation in a manner consistent with the constitutionally protected values of the Basic Laws. However, the key phrase, "a Jewish, and democratic state," has been interpreted differently by various jurists and justices.

Justice Aharon Barak holds that:

The expression "Jewish and democratic" does not imply two opposites, but rather their being complementary and harmonious. The contents of the term "Jewish State" is determined in accordance with the level of abstraction assigned… It should be assigned a high enough level of abstraction to unite all members of society and seek out their common ground. It should be high enough that it is consistent with the democratic nature of the state. Indeed, the state is Jewish not in the religious-halakhic sense, but in the sense that Jews have the right to migrate there, and that their national being is reflected in the being of the state (the matter finds expression, inter alia, in language and in days of rest). The fundamental values of Judaism are the fundamental values of the state – namely, love of man, the sanctity of life, social justice, doing what is good and right, preserving human dignity, the rule of law, etc. – values bequeathed by Judaism to the entire world. These values must be approached on a universal level of abstraction, befitting the democratic character of the State. Hence, the values of the State of Israel as a Jewish State cannot be identified with Jewish Law. One must not forget that a sizeable non-Jewish population lives in Israel. Indeed, the values of the State of Israel as a Jewish State are those same universal values that are common to democratic societies, which emerged from Jewish tradition and history. These values are accompanied by the selfsame values of the State of Israel, which spring from the democratic nature of the state. The combination and synthesis between the two are what have shaped the values of the State of Israel" (see bibliography, Barak, Mishpat u-Mimshal, i .30).

In contrast to the above position, Justice Menachem Elon holds that Justice Barak is employing disparate criteria in interpreting the terms "Jewish" and "democratic," notwithstanding that both terms are meant to describe the nature of the State of Israel. Such interpretation, he asserts, transforms the term "Jewish" into an unimportant, secondary addendum to the term "democratic," without any exegetical rationale or justification for doing so. According to Justice Elon, in setting out to interpret the values entrenched in the aforesaid Basic Laws, the court must have recourse to sources from Jewish Law dealing with the values anchored in these basic laws, in the same way as it has recourse to democratic sources for these values. All this is mandated by the directive set out by the legislator in the law's statement of purpose, according to which the aforesaid basic laws are intended "to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state." The legislator's intent was to find the common ground between the world of Judaism and that of democracy, in such a way that the two worlds will complement one another:

In coming to interpret the basic rights in the Basic Law: Human Dignity and Freedom with the goal of anchoring the values of the State of Israel as a Jewish and democratic state, we must examine the substance of every individual right that comes before us; we must deliberate on it and come to grips with its content. In addressing the fundamental values of the Jewish heritage with regard to the fundamental rights in The Basic Law: Human Dignity and Freedom, the legislator must relate to the body and content of these values. He must deliberate and examine their philosophical underpinnings and examine the rulings and responsa in the remarkable Jewish legal and philosophical heritage throughout the ages, just as the legislator's relation to the fundamental values of democracy must consist of his examining and analyzing their body and content, sources and rulings – as we judges indeed do when we sit in judgment of the cases that come before us. Only after such examination and analysis do we arrive at our judicial conclusion regarding any of the fundamental rights found within the Basic Law: Human Dignity and Freedom. The resulting synthesis, from the standpoint of the State of Israel being a Jewish and democratic state, is reached by the judge in accordance with his approach, understanding and interpretation. (See Elon, in Iyyunei Mishpat, 17 p. 670). See also ca 294/91 Ḥevra Kaddisha Gachsha Kehillat Yerushalayim v. Kastenbaum, pd 46(2) 464, 510ff; 506/88 Shefer v. the State of Israel, pd 48(1) 87,102ff., 167ff.).

An important source relied upon by Justice Elon in interpreting the term "Jewish and democratic state" was the comment made by the chairman of the Knesset Constitution Committee in the Knesset plenum, during the deliberations over the Basic Law: Human Dignity and Freedom:

This law was prepared with the understanding that we must create a broad consensus of all parties in the house. We were aware of the fact that we cannot pass a basic law which fixes the values of the State of Israel as a Jewish, democratic state unless we reach a broad consensus of all the parties in the house…. The law opens… with a declaration that it is intended to protect human dignity and freedom so as to entrench in the law the values of the State of Israel as a Jewish, democratic state. In this sense, the law already determines in its first section that we view ourselves as committed to the values of the heritage of Israel and of Judaism, for the law positively and explicitly states "the values of the State of Israel as a Jewish and democratic state." The law defines several of the fundamental freedoms of the individual, not one of which contradicts the Jewish heritage or the values system that is widespread and accepted today in the State of Israel by all parties of the house (Knesset Session 125 (1992 – 5752) (3782–3783).

Section 1 of the Basic Law: Human Dignity and Freedom, and the Basic Law: Freedom of Occupation ("Fundamental Principles") constitutes an additional focal point in the controversy between Justice Barak and Justice Elon. According to these sections, which are identical in their wording, "Basic human rights in Israel are founded on recognition of man's worth, the sanctity of life and his being free, and they shall be respected in the spirit of the principles in the Declaration of Independence of the State of Israel." This section was inserted in the Basic Laws in the 1994 amendments, and it raised the question of the relationship between the new fundamental principles and the previous statement of purpose appearing in the original versions of the two Basic Laws. According to Justice Barak, "Every one of the paragraphs assists in interpreting the others. Thus, for example, the statement of purpose of the Basic Law: Human Dignity and Freedom should be assumed to espouse the appreciation of man's worth, the sanctity of his life and his intrinsic freedom. Moreover, wherever there is an irresolvable internal contradiction between the values of the State of Israel as a Jewish State and its values as a democratic state, that contradiction can be resolved in light of the fixed fundamental principles in the clause pertaining to such principles" (see Barak, Parshanut Ḥukatit).

Justice Elon, who criticized the hasty way in which, in his view, the sections of the fundamental principles were legislated, holds that these sections are declarative and no more, and that they bear no practical relevance. Justice Elon concludes this from the section's declarative wording, and from the fact that it is based on "principles in the Declaration of Independence of the State of Israel." According to Justice Elon, that declaration includes many topics, making it difficult to determine which of the principles in the Declaration are meant to be the basis for respecting basic human rights in Israel (see Elon, Meḥkerei Mishpat, 12, pp. 289ff.).

The dispute between Justices Barak and Elon continues their earlier dispute regarding Section 1 of the Foundations of Law Act, 1980 (see: *Mishpat Ivri, Jewish Law in the State of Israel; *Lost Property). According to that law, "Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide the issue in the light of the principles of freedom, justice, equity and peace of the Jewish heritage." According to Justice Barak's interpretation of this section, those cases in which a lacuna cannot be answered by way of statute law, case law, or analogy are very limited; hence, there are very few cases, if any, in which the court will "decide in light of the principles of freedom, justice, equity and peace of the Jewish heritage."

By contrast, according to Justice Elon, Section 1 implies that wherever an uncertainty arises in the interpretation of a legal provision of statute in the Israeli legal system, the Foundation of the Law directs the court to have recourse to Jewish Law, its source of inspiration and interpretation, except where the law in question explicitly contradicts Jewish Law. Justice Elon criticizes Justice Barak's interpretation of Section 1, which he sees as divesting it of all practical content since, according to Barak's approach, there is almost no chance of a lacuna being created that would direct the court to the principles of the Jewish heritage (see hc 1635/90 Jerczewsky v. the Prime Minister, pd 45(1) 749). Justice Elon holds that, once the aforementioned Basic Laws were passed, there was no longer a specific need for lacunae – which according to Justice Barak are almost nonexistent anyway – in order to have recourse in the values of the State of Israel as a Jewish state. Justice Elon criticizes Justice Barak's approach to interpreting "the values of the State of Israel as a Jewish and democratic state," as suffering from the same defects as does his interpretation of Section 1 of the Foundations of Law Act:

His approach to interpreting the Foundations of Law Act… has led to… closing the door on recourse to the principles of the Jewish heritage. By those means the Foundations of Law Act was rendered essentially useless. Moreover, employing Justice Barak's approach to interpretation of the Basic Law: Human Dignity and Freedom precludes a priori ever having recourse to the sources of the Jewish heritage and the Jewish world. The Law and its purpose are thus stymied. (See Bibliography: M. Elon, Iyyunei Mishpat 17, p. 688.)

It should nevertheless be noted that in recent writings Justice Barak has attributed more weight to Jewish Law in the framework of the relevant sources for interpreting Basic Laws, and for the interpretation of legislation in general (see Barak, Shofet be-Ḥevrah Demokratit, pp. 156–159).

Justice Haim Cohn interprets the terms "Jewish and democratic state" differently. In his view, the interpreter must adopt, from within the principles of Jewish Tradition, only those principles befitting and appropriate to a democratic society. According to this approach, when the discussion concerns a universal, democratic value that also exists in Jewish Law, the particular notes and emphases found in Jewish Law should be applied, and these should be preferred over the interpretation given to the same value in other legal systems. In any case, according to Justice Cohen, "Jewish values will generally not have to conflict with democratic values. Yet when they do conflict, democracy must always take precedence" (see Cohn, Ha-Praklit, 50, 24).

Another one of the numerous interpretations offered for the term "Jewish and democratic" is that of Ariel Bendor. Bendor contends that according to the limitation clause of the Basic Laws, the constitutionality of a law that violates a right entrenched in the Basic Law is determined in accordance with its consistency (or inconsistency) with the "values of the State of Israel." The implied reference is to the State of Israel as a Jewish, democratic state, as appears previously in the law's statement of purpose. Accordingly, Bendor holds that the law in question must undergo a twofold examination: Is the law consonant with the values of the State of Israel as a Jewish state, and is it consonant with the values of the State of Israel as a democratic state? If it turns out that the law is inconsistent with one of these values, that law does not meet the conditions of the limitation clause, and the court is entitled to declare the law void.

Bendor emphasizes that, under certain circumstances, the principles of Jewish Law protect human rights more effectively than democratic principles. Thus, for example, under certain circumstances, rights afforded suspects and defendants on trial in Jewish Law, as emerged from a ruling by Justice Menachem Elon, are broader than those afforded suspects and defendants on trial according to democratic principles (see: *Detention; *Imprisonment; *Imprisonment for Debt). Where the law is inconsistent with the values of Jewish Law in these matters, the court is entitled, as noted, to declare a law void (see Bibliography: A. Bendor, Mishpat u-Mimshal, 2).

A striking example of the application of Justice Elon's interpretation of "Jewish and democratic state" was the Shefer case (ca 506/88 Shefer v. the State of Israel, 48(1) 87), in which the Supreme Court, inter alia, adjudicated the question of active euthanasia (see *Medicine and the Law: Euthanasia). Justice Elon examined the problem in accordance with the need to balance between the Jewish values of the State of Israel and its democratic values. He ruled that, according to halakhah, the point of departure of this question is:

[T]he supreme value of the sanctity of human life. This supreme value has its foundation, as noted, in the supreme tenet of man's having been created in the image of God, with everything necessitated and implied by that. All this being so, there does not exist, nor can there exist, any way of measuring a man's value… This being the case, actively hastening death, actively shortening a man's life, even if it be labeled 'mercy killing,' is absolutely forbidden, even if performed at the patient's request. Our great duty under the circumstances is to ease the patient's pain and suffering in every possible way (page 144 of the ruling).

Justice Elon also discussed the position of the various democratic systems on this question, and then turned to discussing a synthesis of these systems:

We are committed to finding a synthesis between the dual purposes of the Basic Law: Human Dignity and Freedom – namely, entrenching the values of the State of Israel as a Jewish and democratic state in its laws… One of the fundamental issues in the case before us is the possibility of actively hastening death. Jewish Law absolutely forbids this possibility, and there is no opinion or even a trace of opinion which permits this act, which in the world of halakhah is viewed as murder. Among democratic legal systems, American law prohibits actively hastening death. By contrast, in the Dutch legal system, active euthanasia is permitted and has even been legislatively regulated. It is clear and goes without saying that on this question synthesizing Jewish Law with that of a democratic country means accepting the common ground of Jewish Law and American law regarding the prohibition against actively hastening death, while absolutely rejecting the Dutch position that permits actively hastening death. Moreover, even if most of the democratic legal systems permitted, under certain circumstances, active euthanasia… A synthesis would be achieved through finding the common ground between Jewish Law and the legal system of any one country that still forbade it. Even more to the point, even if in actual fact not one democratic legal system forbade active euthanasia… since active euthanasia contradicts the essence of the State of Israel as a Jewish State, as we emphasized above, synthesizing the two concepts – "Jewish and democratic" – would mean preferring the conclusion necessitated by the values of a Jewish State and interpreting "democratic state" accordingly (pp. 167–68 of the ruling).

(For additional instances in which Justice Elon's approach to interpreting "Jewish and democratic state" was applied, see *Mishpat Ivri: Jewish Law in the State of Israel.)

In the topic under discussion, it would be appropriate to refer to points emphasized in the entry, "Law and Morality" regarding the instructive position of Jewish Law in terms of the role of the court, where appropriate, in compelling litigants to go "beyond the letter of the law." Toward the end of that discussion, Elon said:

As written above, in rulings touching on these questions, and handed down before passage of the Basic Laws of the State of Israel, the court could only recommend going beyond the letter of the law. Yet in 1992, Basic Laws were enacted whose declared purpose was to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state." In those laws, the term "Jewish" precedes the term "democratic," thereby according a preeminent role to Jewish Law within the values of the State of Israel as a Jewish State. In wake of these Basic Laws, it would seem appropriate for the issue of ruling beyond the letter of the law to emerge anew. The courts should adopt the approach of compelling litigants, under appropriate circumstances, to go beyond the letter of the law. A central sphere in the integration of Jewish and democratic values is the relationship between law and morality, and it is clear that Basic Laws need to have an influence on this sphere, and on the interpretation of associated legislation.

Examples of this from the realms of statute law and case law have been brought in our discussion of the topic, *Law and Morality.

bibliography:

M. Elon, Ha-Mishpat ha-Ivri (1988), 3:1465; idem, Jewish Law (1994), 4:1740; idem, Jewish Law (Cases and Materials) (1999), 435–39; idem, "Derekh Ḥok be-Ḥukah: Arakheha shel Medinah Yehudit ve-Demokratit le-or Ḥok Yesod: Kevod ha-Adam ve-Ḥeruto," in: Iyyunei Mishpat, 17 (1992), 659; idem, "Kevod ha-Adam ve-Ḥeruto: Mada'ei ha-Yahadut ve-Arakheha shel Medinat Yisrael ke-Medinah Yehudit ve-Demokratit," in: Mad'ei ha-Yahadut, 34 (1994) 9; idem, "Kevod ha-Adam ve-Ḥeruto be-Moreshet Yisrael" (President of Israel Study Group for Bible and the Jewish Heritage, 1995), 15; idem, "Ḥukei ha-Yesod: Darkhei Ḥakikatam u-Parshanutam – Me-Ayin u-Le'an?" in: Meḥkerei Mishpat, 12 (1995), 253; idem, "Ḥukei ha-Yesod Iggun Arakheha shel Medinah Yehudit ve-Demokratit: Sugyot be-Mishpat ha-Pelili," in: Meḥkerei Mishpat (1996) 27; idem, "Ha-Aḥer be-Mishpat ha-Ivri u-vi-Pesikat Bet ha-Mishpat ha-Elyon," in: Mada'ei ha-Yahadut, 42 (5754), 31; idem, Ma'amad ha-Ishah (2005), 384–451; H. Cohn, "Arakheha shel Medinah Yehudit ve-Demokratit – Iyyunim be-Ḥok Yesod: Kevod ha-Adam ve-Ḥeruto," in: Ha-Praklit (Jubilee Volume, 1994), 9; A. Barak, "Ha-Mahapekhah ha-Ḥukatit: Zekhuyyot Yesod Mugganot," in: Mishpat u-Mimshal, 1 (1993) 9; idem, Parshanut be-Mishpat – Parshanut Ḥukatit, 3 (1994), 299–354; idem, Shofet be-Ḥevrah Demokratit (2004), 156–59; A. Bendor, "Pegamim be-Ḥakikat Ḥukei ha-Yesod," in: 2 (1994–95), 443, 451–54; D. Avnon, "'Ha-Ẓibbur ha-Na'or': Yehudi ve-Demokrati o Liberali ve-Democrati'?" in: Mishpat u-Mimshal, 3 (1995–96), 417; A. Rozen-Zvi, "'Medinah Yehudit u-Demokratit': Avhut Ruḥanit, Nikkur ve-Simbioza – Ha-Efshar le-Rabbe'a et ha-Ma'agal?" in: Iyyunei Mishpat, 19 (1995), 479–519; A. Levontin, "'Yehudit ve-Demokratit' – Hirhurim Ishiyyim," in: Iyyunei Mishpat, 19 (1995), 521–546; A.. Maoz, "Arakheha shel Medinah Yehudit ve-Demokratit," in: Iyyunei Mishpat, 19 (1995), 547–630; R. Gavison, "Medinah Yehudit ve-Demokratit: Zehut Politit, Ide'ologyah u-Mishpat," in: Iyyunei Mishpat, 19 (1995), 631–82; R. Margolin (ed.), Medinat Yisrael ke-Medinah Yehudit ve-Demokratit – Rav Si'aḥ u-Mekorot Nilvim (5759).

[Menachem Elon (2^nd ed.)]