The Israeli basic laws' (potentially) fatal flaw

Israel Law Review

Volumn 32, Issue 4, 1998, Pages 535-566

  Avnon, Dan ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 84857503222     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S002122370001579X     Document Type: Article

References (65)

1. A. Ravitzky, HaKetz HaMegulaeh Umedinat Hayehudim (Messianism, Zionism and Jewish Religious Radicalism) (Tel-Aviv, Am Oved, 1993, in Hebrew) 67–84
2. HaKetz HaMegulaeh Umedinat Hayehudim (Messianism, Zionism and Jewish Religious Radicalism), at 111–200
3. S. Avineri, The Making of Modern Zionism: The Intellectual Origins of the Jewish State (New York, Basic Books, 1981) 13.
4. In 1948, Hitler's Germany provided an immediate and uncontested historical background 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 H. Pitkin, “The Idea of a Constitution”, (1987) 37 J. Legal Educ. 168–169.
5. 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 Robert C. Post, “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell”, (1990) 103 Harv. L.R. 601, at 603–686.
6. See I. Englard, “Law and Religion in Israel”, (1987) 35 Am. J. Comp. L. 185, at 193.
7. 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.
8. 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”, Halishkah, at 26.
9. 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.
10. S.H. 1992, No. 1391, p. 150.
11. S.H. 1994, No. 1454, p. 90.
12. Itzhak Zamir and Allen Zysblat, Public Law in Israel (Oxford, Clarendon Press, 1996) 154, at 157. 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 Shlomo Guberman
13. and Dr. Carmel Shalev, transl., The Constitution of the State of Israel 1996 (Jerusalem, Jerusalem Center for Public Affairs, 1996) 90. 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.
14. 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 J. Hampton, “Democracy and the Rule of Law”, in I. Shapiro, ed., The Rule of Law (New York, N.Y.U. Press, 1994) 32. 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
15. see J.P. Olsen, “Europeanization and Nation-State Dynamics” in S. Gustavson and L. Lewin, eds., The Future of the Nation State: Essays on Cultural Pluralism and Political Integration (London, Routledge, 1997) 245–285. For a series of excellent discussions of evolving types of citizenship currently being practiced in Western democracies
16. see Bart van Steenbergen, ed., The Condition of Citizenship (London, Sage, 1993).
17. P.C. Schmitter and T.L. Karl, “What Democracy Is … and Is Not”, in L. Diamond and M.F. Plattner, eds., The Global Resurgence of Democracy (Baltimore, Johns Hopkins University Press, 1993) 40.
18. 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.
19. See, for example, J. Karp, “Basic Law: Human Dignity and Liberty: A Biography of Power Struggles”, (1993) 1:2 Mishpat Umimshal 331, n. 27
20. and A. Barak, “Protected Human Rights: Scope and Limitations”, Mishpat Umimshal., at 268–271.
21. Cited in E. McWhinney, Canada and the Constitution 1979–1982: Patriation and the Charter of Rights (Toronto, University of Toronto Press, 1982) 173. 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.
22. See his use of the Canadian Charter in “Protected Human Rights”, Canada and the Constitution 1979–1982: Patriation and the Charter of Rights, at 269–270.
23. See K. Jaspers, Spinoza, H. Arendt, ed. and R. Manheim, tr., (New York, Hartcourt, Brace, Jovanovich, 1974) 75–84.
24. “Fundamental Principles of the Government of Afghanistan”, (October 31, 1931) in A.J. Peaslee, Constitutions of Nations (The Hague, Nijhoff, 2nd ed., 1956) vol. 1, p. 21.
25. Benito Mussolini and Giovanni Gentile, Enciclopedia Italiana (1932).
26. Cited in R. Huggins, “The Nature of the State”, in B. Axford, G.K. Browning, R. Huggins, B. Rosamond and John Turner, Politics: An Introduction (London, Routledge, 1997) 281.
27. 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
28. and Divrei HaKnesset 24 (1992) 3793. 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.
29. See interview with Amnon Rubenstein in “The Quiet Constitutional Revolution”, (April 1992) 16 Halishkah 14–15
30. and my discussion in “The ‘Enlightened Public’”, Halishkah, 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”.
31. Interview with M.K.I. Levi, in Halishkah 28.
32. For an overview of the Court's gradual approach to furthering rights in Israel's legal and political culture, see P. Lahav, “Rights and Democracy: The Court's Performance”, in E. Sprinzak and L. Diamond, eds., Israeli Democracy Under Stress (Boulder, Lynn Rienner Publishers, 1993) 125–152.
33. The original Hebrew word is “she-no'ad”. It has been translated in Zamir and Zysblat, Israeli Democracy Under Stress, 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”.
34. Zamir and Zysblat, Israeli Democracy Under Stress, at 91, 93.
35. 34 L.S.I. 181, sec. 1.1 thank (retired) Justice Gabriel Bach for drawing this solution to my attention.
36. For a liberal discussion of Israel's values that takes off from this definition, see H. Cohn, “The Values of a Jewish and Democratic State: Meditations on Basic Law: Human Dignity and Freedom”, in A. Gavrieli, ed., HaPraklit: The Jubilee Volume (Tel-Aviv, The Bar Association, 1993, in Hebrew) 9–52.
37. United Mizrahi Bank Ltd. v. Migdal Cooperative Village (1995) 49(iv) P.D. 1.
38. D. Kretzmer, “The New Basic Laws on Human Rights: A Mini-revolution in Israeli Constitutional Law?”, in Zamir and Zysblat, P.D., at 145–146.
39. See the words of Levin J. in The United Mizrahi Bank, P.D., 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”.
40. See also Levin J. in Clal Insurance Co. v. The Minister of Finance (1994) 48(v) P.D. 464–465 (secs. 26–27).
41. See Kol Ha'am Co. Ltd. v. Minister of Interior (1953) 7 P.D. 871.
42. Translated into English in Zamir and Zysblat, P.D., at 55–73.
43. See Shamgar P.'s discussion, P.D., 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.
44. This strategy is immanent in many rulings. Consider as an example Levin J. in Clal Insurance Co., P.D., at 444–445
45. Both quotes are from Shamgar P., in United Mizrahi Bank, P.D., at 143, 146 (n. 13).
46. The most prominent upholder of this position is Barak P. See his comment in United Mizrahi Bank, P.D., 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”.
47. M. Elon, “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 Elon J was the deputy President of the Supreme Court
48. For a detailed (and critical) analysis of this legal standard see my article “The ‘Enlightened Public’”, Iyunei Mishpat
49. A. Barak, “Basic Law Freedom of Occupation”, (1995) 2 Mishpat Umimshal 208
50. Barak P in United Mizrahi Bank, Mishpat Umimshal, at 270 (sec 81)
51. 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, Mishpat Umimshal, at 26.
52. See for example Shamgar P., who alludes to Genesis 1:27 in United Mizrahi Bank, Mishpat Umimshal, at 101 (sec. 51)
53. or Levin J., who alludes to the Jewish halacha in Clal Insurance Co., Mishpat Umimshal, 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.
54. Cheshin J. represents this approach in a most forceful manner in United Mizrahi Bank, Mishpat Umimshal. 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).
55. Cheshin J. in United Mizrahi Bank, Mishpat Umimshal, at 478 (sec. 134).
56. United Mizrahi Bank, Mishpat Umimshal, at 488–489 (sec. 1).
57. See I.S. Lustik, “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. 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.
58. 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”, Mishpat Umimshal, at 13, n. 29.
59. 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. For the reformed role of the Supreme Court, see 139.
60. See also Hatzaot Hok Administrative Courts, 1997 (H.H. 13 January 1997, No. 2570, pp. 105–112).
61. Zamir and Zysblat, Hatzaot Hok Administrative Courts, at 154, 157.
62. See Hatzaot Hok Administrative Courts.
63. See proposal for Basic Law: Freedom of Religion, prepared by M.K. Marom and others, and published as an advertisement in Ha'aretz, 17 June 1998, p. A5.
64. 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.
65. 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.