Israel was born as a Jewish and democratic State, being the nation-State of the Jewish people. However, since Judaism is both a culture and a religion, the latter has a peculiar relation with the State.
The role of religion in the public sphere may define the State as secular, secularist or as a theocracy. In a theocracy, the State promotes and imposes religious law. In secularist States, religion is banned from the public sphere and becomes a mere private issue. In secular states, religion plays a role in the public sphere: as an element of collective identity, as a reference for public political discourse or for communal autonomy in certain domains (cultural autonomy, religious courts…)
The 1947 Status Quo between Religious and Secular Jews
In 1948, secular parties agreed with the representatives of the religious groups upon regulating the relations between religion and State.
Ben Gurion, 1947, under the word “Jewish”
According to the Status Quo, public institutions in Israel identify with the Jewish tradition, respect the Jewish calendar and the Jewish alimentary rules (kashrut). Therefore, public transportation does not function on Shabbats and Jewish festivities, and public offices serve kosher food. The Status Quo also designed the adoption of the religious court system in vigour during the British Mandate, with jurisdiction on family law matters. Finally, ultra-Orthodox were guaranteed the exemption from compulsory military service.
The definition of “Jewish and Democratic State”
Jewish State means it aims at perpetuating, historically and culturally, the Jewish people. Israel is Jewish in the sense that it is the State of the Jewish nation, with a majority of Jewish citizens. Israel is democratic in the sense that it respects the rule of law and human rights as well as the principle of individual self-determination.
As Justice Aharon Barak argued: “the 'core' characteristics shaping the minimum definition of the State of Israel as … Jewish …. come from the aspects of both Zionism and heritage. At their center stands the right of every Jew to immigrate to the State of Israel, where the Jews will constitute a majority and Hebrew is the official and principal language of the State and most of its fests and symbols reflect the national revival of the Jewish People…. The heritage of the Jewish People is a central component of its religious and cultural legacy”.
Religion in the public sphere
Jewish religion and legal tradition become relevant in the public sphere only in cases established by the law of the State. This is the case of rabbinical courts, which, like other recognised religious courts, including Islamic, Druze and Christian, have exclusive jurisdiction in matters of marriage and divorce.
Judaism is a source of interpretation for judges, and for the Supreme Court in particular, which rule on the basis of the law of the State, as Jewish and democratic. Therefore, Jewish law is not applied, but Jewish thought and heritage is a source of inspiration.
Conflicts between Secular and Religious Israelis
Conflicts between seculars and religious regard political and social issues. The desire to transform Israel into a Jewish law state is a marginal vision.
One such debate regards the introduction of civil marriage, not yet recognised in Israel. Those who cannot have access to religious marriage, including people who do not have a religious affiliation and same-sex couples, advocate for the introduction of civil marriage; on the contrary, religious people prefer the current state of affairs, with the possibility of forming a marital union or of getting married abroad.
Another debate regards the exemption from military service granted to the ultra-Orthodox, remarkably increased in number since 1948. Ultra-Orthodox also enjoy social benefits for their peculiar life style, entirely dedicated to the study of sacred texts. High birth rate and low education are also conducive to very low income.
Religious groups also have precise political ideas on the issue of contended territories in Judea and Samaria, the settlement of which is considered a religious duty. Their sentimental and religious attachment to the land makes them less incline to accept solutions implying land concessions.
Finally, national religious and ultra-Orthodox, who do not recognise Israel as the State of the Jewish people, clash over the management of religious affairs in Jewish communities, so far ruled by the ultra-Orthodox. National religious, who are mainly modern Orthodox Jews, are in favour of extending the military service or the civil service to all citizens, including Arabs and ultra-Orthodox; they are also inclined to lessen the burden on conversion to Judaism; and they firmly defend Israel as a Jewish state, against the ultra-Orthodox who oppose the idea of a Jewish State been born out of human effort and not divine will.
By and large, Israel is a radically pluralist society, where public discourse manages the numerous political, social and ideological conflicts, including the secular-religious.
Dalia Dorner served as Justice of the Supreme Court of Israel from 1993 to 2004. She is now President of the Israel Press Council. Her jurisprudential work characterises for a committed defence of human rights and individual self-determination.
Israel was founded as a Jewish and democratic state, how do Judaism and democracy integrate? Judaism and democracy have obviously to live in symbiosis. The basic norm of Israel, since we do not have a constitution but fundamental laws, is the Declaration of Independence, which establishes the principle of symbiosis between the Jewish and the democratic characters of the state. People may think this is an oxymoron, but I do not agree. Jewish principles, which are part of the tradition of the Jewish people, are indeed universal principles that Judaism endowed to the world. The Declaration of Independence has chosen three such Jewish principles: justice, freedom and peace. All of them are indeed universal principles. Israel is also a Jewish state in the sense of the state of the Jewish people. Israel recognises a particular status to the Jews, and this is due to the fact that Israel was founded after the Shoah, on the basis of the UN decision to partition the land into a Jewish and an Arab state. Therefore, Israel was born as a Jewish state with the goal of gathering the Jewish people within its borders. I myself still remember boats of Jewish refugees fleeing from Germany without any state welcoming them, not even the US, now our friends, New Zealand or Australia: those boats went back to Germany and the Jewish refugees were annihilated. According to the Declaration of Independence, Israel, being a Jewish state, will be open to Jewish immigration, and therefore the Law of Return was introduced, giving automatic citizenship to Jews who want to live in Israel. The Law of Return reflects the goal of the state, which is to gather the Jewish people within its borders.
What about non-Jews in the Jewish and democratic state? The Declaration of Independence establishes as well that Israel will not discriminate on ground of race, religion or sex, and this is the democratic character of the state of Israel, which is a Jewish state with non-Jewish citizens as well. The principle of non-discrimination is also rooted in the Jewish tradition, and I will give you two examples. One is from the book of Leviticus 19-34, which reads as follows: “the foreigner residing among you must be treated as your native born. Love them as yourselves for you were foreigners in Egypt”. The principle behind these words is that the Jewish people has experienced discrimination, deportation, violence and genocide, and therefore it will protect and treat equally the “foreigners”—i.e., non-Jews—living among it. Moreover, according to the Mishnah, Hillel the Elder was asked by a man “Tell me what Judaism is about while I stand on one leg”, and he answered: “what is hateful to you, do not do to your fellow; this is the essence of the Torah”. According to Hillel, this principle is the basic principle of Jewish law and tradition, from which other principles and laws stem. Israel favours the Jews in acquiring citizenship, but recognises equality among Jewish and non-Jewish citizens. It is true, however, that in reality there are conflicts and tensions relating to the implementation of human rights, and this is a question of education, social development and not just of jurisprudence. But what is worth noting is that Israeli laws refer to human dignity, to human autonomy, to human rights, not of the Jew but of all human beings.
Israel is a democratic state and is considered a liberal state. However, there are religious courts with jurisdiction on family law mainly. This is indeed a complex problem. Israel inherited the system of religious courts from the British Mandate, which inherited it from the Ottoman rule. It remained part of the Israeli legal system. Not only this, but there are also religious parties, which have political power. The main problem in religious courts, and with this I mean all religious courts, including Christian, Muslim and Jewish, is that there is not full equality between men and women. We also have in Israel hundreds of thousands of people who do not belong to any specific religious group, and they cannot get married because Israel recognises religious marriage only. This is one of the problems that have to be solved; but since we are a democracy there has to be a majority to vote for change. Apparently, there is not yet a consensus on these issues. However, religious courts are subject to the jurisdiction of the Supreme Court, although it is limited to aspects concerning the respect of fundamental rights such as the due process of law, but not about the central issue itself.
How does Judaism enter in the work of the Supreme Court? The Supreme Court is a civil court and rules on the basis of the law of the state. The basic norm in Israel is the Declaration of Independence; therefore, we are not a Jewish state in the sense of a theocracy—what in Hebrew is called medinat halakhah, where halakhah is the Jewish law. Judaism is a broad concept, including religion, tradition and history. Israel is not a Jewish state in the religious sense. Israel is not like the Vatican. If we have religious courts, for instance, it is not because the Jewish law establishes it, but because the law of the state recognises their jurisdiction, and this system can be changed just by the legislator. The Supreme Court decides according to the law of the state, and this is why it does not get involved in the decisions of the religious courts.
But Jewish principles and tradition inspire the rulings of the Supreme Court. Certainly. Not the halakhah, the Jewish law, but the Jewish principles. As I said, I believe that Jewish and democratic principles live in symbiosis. The Court rules according to the law of the State of Israel as a Jewish and democratic state.
In 1948, when the State of Israel was founded, secular and religious groups signed the status quo, regulating the role of religion in the public sphere. What has changed over the years in light of the relations between religious, haredi and secular population? The haredim are a minority and they have a certain political power because they are ready to enter into both right-wing and left-wing coalitions in order to pursue the interests of their group. The last elections partially changed this situation, because the haredi parties are not part of the coalition. It is, however, a political question focusing on the formation of a governing coalition, which is common to other democratic systems, including Italy for instance. The same goes with other religious parties. The whole issue boils down to the political power of the religious parties, which are mainly right-wing with specific stances on the territories, for instance. As I said it is not a religious issue itself; rather, it is a question of political power and influence.
Considering Israel’s legislation and social development of women’s rights, LGBT rights, social rights and other, one can say that Israel is a liberal state. So, why is Israel considered as a religious state, since it defines itself as a Jewish and democratic state? Regarding Israel’s liberalism, the question is not simple. As I said, there is a clear influence of religious parties in politics. Religious courts have exclusive jurisdiction over marriage and divorce, which is not the most liberal thing in the world. Moreover, there is also a certain religious or traditional influence on daily life, but as you mentioned there is much more in Israel. I do hope that there are places in the world where people love us more. The US apparently loves us more. Once I said that if, G-d forbid, we would be defeated, people would love us much more! They would say, “oy, poor people”, and commiserate us; but I think we have been a “poor people” for quite a long time now. I believe we are far from being the state that Herzl envisioned. We have social and economic gaps, there is not complete equality between men and women, at least not as I consider sexual equality should be; we also have many other problems of different kinds. On the other hand, we have laws, principles and committed judges. I am convinced we will succeed in being the state that Herzl dreamt of, which also represents the implementation of the Declaration of Independence.
Dr. Mordechai Kedar is a lecturer in the University of Bar-Ilan and an expert in Arab and Islamic Studies.
Israel is a “Jewish and democratic state”: how do religion and state integrate? You can analyse this issue in different ways. First, one has to consider that Israel was founded as the state of the Jewish people, where Jews live in a country of their own, without fearing segregation or discrimination, and without feeling the difference that characterises Jewish life in non-Jewish domains. Jews in Israel live as the French live in France, as the Italians live in Italy or the Greeks in Greece, which is to say that Jews in Israel are like the other peoples that live in nation-states. The definition of Israel as a Jewish and democratic state is also an implicit message, which encourages Jews to live in Israel, where they can fulfil their national aspirations, being always a minority in other countries. Israel is, therefore, the State where Jews can feel complete, with a state of their own, a land of their own, an army of their own and, certainly, with faults of their own. In order to be the state of the Jewish people, Israel was founded as a Jewish state, unfolding Jewish identity, traditions and ethos. Consequently, for instance, the official calendar of the state is the Jewish calendar; the official language is Hebrew; the symbol of the State is the menorah; the flag is the tallit (Jewish prayer shawl) with a maggen David; the hymn is “Ha-Tikva” reflecting the Zionist vision. In other words, the institutional and symbolic architecture of Israel reflects Jewish identity and heritage. Yet, the content of the State is something different. There are many Jews who look upon themselves as Jewish, in the sense of belonging to the Jewish nation, but they are not religious. Religious Jews consider Israel something almost messianic, the existence of which symbolises the beginning of the redemption of the Jewish people. Secular Jews consider Israel from a national point of view, whereby after two thousand years of Diaspora, Jews have the right and need to a state of their own. Wherefore, if you consider the raison d’être of the state, you see that Israel is fully Jewish; but if you consider Israel’s institutional and social life, then you see that Israel is not Jewish in the sense of Jewish religious identity. Indeed, Israel itself does not respect the Jewish law, although it is a Jewish state: Jewish law, for instance, is extremely detailed in what can be done and what is forbidden during the Shabbat; however, the Israeli Broadcasting Authority broadcasts during the Shabbat. Israeli society is extremely diverse: there are secular, religious, more religious, religious light, ultra-Orthodox, traditional etc. When we talk about Israel as a Jewish and democratic State, we have to think of what aspect are we considering: the institutions, the raison d’être or the daily life of Israeli society? Another example is the Jewish alimentary norms, known as kashrut: in public offices, food is kasher, but in Israel you can find also places where they breed pigs and sell pork, which is one of the prohibited meats according to Jewish law. By and large, everybody is free to choose how to live his/her Jewish identity. There are those who decide to study in yeshivoth, the Talmudic academies, which is a very Jewish way of life, and the state also supports them, but the same state allows to breed pigs and to sell pork meat in the market. Israeli society, as a Jewish state, includes all Jewish ways of life according to the free will of the individual to express his/her Jewish identity. And this stems from the fact that Israel is a democracy, which includes free self-determination of the individual. In this respect, democratic principles include freedom of religion as well as freedom from religion. This is why the Supreme Court many years ago ruled that Israeli identity cards should not report the religious affiliation of the individual: the state cannot investigate the religious identity of its citizens because religious affiliation should not be an issue of its interest—citizens are equal to the state and they are free to define themselves as they wish. The only domain in which religion becomes a relevant issue is family law, because in Israel marriage and divorce are comprised in the jurisdiction of religious courts, including rabbinical, shari’a and Christian courts, but from the point of view of the state, religion is not relevant. To sum up, the State of Israel is a Jewish state, but the public sphere is inclusive in that the state allows everybody to freely express his/her own identity.
There is, however, a certain religious influence in the public sphere, considering, for instance, the existence of religious political parties. The question of religious parties is complex. Consider that there are many religious Jews who do not vote for religious parties on religious grounds. The Hebrew word for political party is miflagah, from the root p-l-g, which bears the meaning of division, separation. Judaism does not divide its people into groups; therefore, the idea of party is an oxymoron from a religious point of view. This is why many religious people prefer voting for secular parties. Among religious Jews, there is a certain negative perception of religious parties, which are in principle against the idea of unity of the Jewish people. Moreover, according to sociological studies, the more a group is ideologised, the more it tends to divide into different ideological groups. Think of the political division of the 1950s, when the leading political establishment was left-wing and there were at least eight left-wing parties; currently, after the progressive loss of power of the Left, those currents are all comprised in the Labour Party (Avodah). Likewise, the religious society in Israel is divided in several parties and ideological groups, because religion itslef is a sort of ideology.
And what about the social space of non-Jews in a Jewish State? There are non-Jewish minorities in Israel, living as full citizens of the state with equal rights. The main group is the Arab minority. Arabs have a saying about Israel: “Israel is a Jewish and democratic state—Jewish against the Arabs and democratic against the Jews”. It is a wordplay, which has political consequences in terms of Israel’s image. However, even if we theoretically agreed with them that Arabs are discriminated against, that they are second-class citizens and so on and so forth, we would however see that 98% of the Arab population in Israel prefer living in Israel than in any other place in the Middle East, including the Palestinian Authority. The Arab-Israeli village Umm al-Fahem, which lies on the Green Line and is the stronghold of the Islamist movement in Israel, often organises referenda to know the will of the people about the land swap. The majority of the population always votes in favour of living in Israel. Therefore, even though they do not accept its existence and even though they keep misrepresenting Israel as a partial democracy, the Arab minority wants to live in Israel and not in other Arab countries.
How has the 1948 status quo, signed by Ben Gurion and religious leaders to define the role of religion in the public sphere, changed over the years? There has been a twofold evolution in the relations between seculars and non-seculars, one regarding the ultra-Orthodox community and the other regarding the Zionist religious community. Ben Gurion exempted the ultra-Orthodox, which represented then a small group of people, from compulsory military service. Within the ultra-Orthodox, there are those who defy the existence of Israel because they consider it a secular enterprise opposing the will of G-d, whereby the constitution of a Jewish state will be fulfilled only with the coming of the Messiah. According to them the human effort to build a Jewish state represents a rebellion against the will of G-d, Who sent the Jews to exile and Who only will scatter the Jews from the Diaspora. The Szatmar group, for instance, do not even accept to take up Israeli citizenship and mourn when Israelis celebrate the Day of Independence. Over the years, demography has been conducive to increasing the number of ultra-Orthodox in Israel: they can have up to 15 children a family, after three generations their birth rate is almost exponential. Seculars live differently: they marry later and have two or three children per family. If you take the population of first-year school students, you will see that less than a half of the new students enrolled in first year of school are secular, and the majority is Zionist religious, ultra-Orthodox and Arab. The minorities are becoming larger, while the majority is lessening year by year. The main problem emerged when you consider that Arabs and ultra-Orthodox are exempted from the military service; consequently, Israel faces the situation in which just half of the population goes to the army. The tension stems from the fact that seculars go to the army, give three or more years to the state, risk their lives in service, whereas ultra-Orthodox sit and study in yeshivoth and get married. Moreover, the radically different lifestyles result in remarkable economic and social gaps: ultra-Orthodox are not educated in secular studies, and almost do not study Maths and English; therefore, they have no choice but to go on studying in Talmudic academies with repercussions on their capacity to enter the labour market and find good jobs without a degree. The state tries to introduce secular subjects in ultra-Orthodox schools, but this is considered an attempt to infringe in their autonomy and perceived as a threat for young members of their community, who may be induced into leaving the ultra-Orthodox life. These problems cannot be solved, however, through simple decisions; it will take time, since it is a social change to be enacted. The same goes also with the Arabs, who were exempted from serving in the army because one cannot expect that they fight against their fellow Arabs, as well as for security reasons—indeed, the Arabs have lived under martial law until 1967 since Israel was not sure of their loyalty. However, Israel has also introduced the civil service, usually addressed to those who cannot serve in the army. Arabs are encouraged to enrol in the civil service within their communities, but there are those who strongly oppose it because they do not want to contribute to the Israeli society when Israel defines itself as a Jewish state. The young generations are, however, inclined to do the civil service, whereas the leaders are hostile; principally, Arab girls want to do the civil service, because they see it as a chance for emancipation.
And what about the Zionist religious community? That is a different story. The Zionist religious, known in Hebrew as kippoth srugoth (sewn yarmulkes), identify with the state both nationally and religiously. For instance, the Day of Independence, in Hebrew Yom Ha-Atzmaut, is not just the day in which to celebrate that Jews have a state, but it is also a religious celebration with a special prayer, called al ha-nissim (concerning the miracles). For the national-religious, the existence of Israel represents not only a national fulfilment, but also the beginning of the redemption of the Jewish people. By and large, the attachment to the state depends on your personal and political beliefs. Arabs tend to consider it a calamity; ultra-Orthodox Jews tend to see it with suspect; secular Jews generally consider it a national achievement; and modern Orthodox Jews tend to consider Israel as the beginning of the redemption. But secular Israelis are quite vocal in their opposition to the Zionist religious ideas: many secular Jews consider people like myself, a national religious Jew, Fascists. Prof. Leibovitch called national-religious pople as “yudo-natzim” (Jew-Natzis), a despicable and spiteful definition: one does not recall he was a genius in Maths and biochemistry, but his abominable label of national religious Israelis is still used.
But this hostility between secular and religious Israeli is mainly consequent on the political debate on the contended territories, which also reflects the dispute on state and religion. Is it not so? It is a very controversial issue. According to the Arabs, all Israel is an occupied territory, including Jaffa, Tel Aviv or Haifa. According to secular Jews, who do not have a sentimental connection to the Land of Israel, by considering the state as an instrumental manifestation of a national project, a Jewish state can be wherever in the world: Israel, Uganda or Birobidzhan. They do not consider the State of Israel as a sacred issue. The ultra-Orthodox consider things from the point of view of Jewish law, whereby you can live according to the laws as laid down in the Torah in any place in the world. There are also ultra-Orthodox communities in the disputed territories of Judea and Samaria, like Beitar Illit and Immanuel, but they do not live there for ideology. On the contrary, for the national religious living in Judea and Samaria is a religious issue in itself, since it is in this place that the Jews lived as a nation before the Diaspora. For Zionist religious Israelis there is a duty to settle in the Land of Israel (mitzvat yishuv Eretz-Israel). Therefore, even the stand on the territories changes according to your religious affiliation: Arabs consider Jewish settlements with abhorrence; secular Jewish Israelis may consider the issue from a security point of view; ultra-Orthodox do not consider it an important issue; but national religious consider living in Judea and Samaria as a religious duty, even if it is contrary to certain interpretations of international law. Therefore, the individual identity influences the opinion on this question.
Israel is a democratic state and we see it in different ways. But considering the particular relation with religion, which is typically Middle-Eastern, the West tends not to consider Israel as a full democracy. Why, in your opinion, is Israel considered a non-democratic state precisely because it defines itself as Jewish? Do you know how many mosques are there in Greece? None. Zero. The Greeks do not allow Muslims to build mosques and, therefore, they gather in private spaces that function as mosques. How many mosques are there in Israel? You have one for each tribal group all over Israel. In Switzerland, Muslims cannot build minarets. In Israel, Muslims can build all the minarets they want and as they want. In this sense, Israel is much more advanced than many states in Europe. Take the issue of gays and lesbians: there are places in Europe where they cannot live freely; while in Israel, they can do what they want and they can also live as same-sex couples recognised by the state. What bothers the West is that Israel is loyal to its national identity. In Europe in specific, national identity has progressively become unimportant and the very idea of nation-state is almost and obloquy. That is why all those who stand for the protection of nation-states are considered Fascists. Israel is perceived as a state that endeavours to maintain its national identity and to pursue its national interests. And this is considered negatively. Secondly, the West is increasingly secular and Europe in particular passes over its Christian identity, regarding religion almost with disdain, as an archaic social institution. Israel on the contrary, not only maintains its national identity, but also preserves its ancient traditions and beliefs. Incoherently, Europe accepts that Muslims practice their religion and conduct their lives according to their religious law. But it is incomprehensible how Israelis, living in a modern state with start-ups and hi-tech, still preserve a strong national identity and also respect ancient beliefs and traditions. It is the so-called double standard: since Israel is modern and democratic, it is expected to give up its national identity and its national struggle for survival, while Arabs are not expected to do so, because they are considered as “different people”. Europeans do not bear in mind that we live in the Middle East, where political and social concepts are different, and here one survives just by being the strongest. I guess that the problem with Europe originates rightly from what Europeans expect from us: they require Israel to behave according to European principles and laws. Here in the Middle East, however, you cannot show any weakness: if you want to survive you have to win. This is a region of conflicts, and Israel finds itself in the position of fighting for its existence: we cannot afford to act according to European benevolence or neighbourliness; we have to fight for our existence and survival. Suleyman Demirel, a Turkish politician, once said that the Middle East is a big dinner in which everybody participates: either on a chair or on the dishes. It seems that Europeans do not want to see Israelis sitting on the chairs, but would rather see us defeated on the dishes.
But isn’t Israel a democracy according to the same Western principles of human rights and rule of law? Yes, definitely, but just with its citizens, Jews and non-Jews alike. In its internal affairs, Israel is a complete democracy, respecting human rights, honouring the principle of non-discrimination etc. However, in its foreign policy, Israel has to act as a Middle-East state since its neighbours are hostile and want to destroy it. And this is also the source of the Jewish national identity: the unity of the Jewish destiny. The Jewish people is united beyond its internal divisions in front of a common destiny, which is to fight for our existence and for the existence of the only state we have.