Jewish and democratic state

As part of a project to draft a constitution for Israel by the Israel Democracy Institute (IDI) led by former Chief Justice Aharon Barak, the country's Jewish and democratic character was described as follows:

The State of Israel is a Jewish state in the following two senses: it is the political framework in which the right of the Jewish people to self-determination is manifested and it is a "Jewish nation-state." A first and necessary condition to being a Jewish and democratic state is a decisive majority of Jews in the State. Israel's attribute as a Jewish and democratic state is conveyed through aspects of Zionism and Jewish heritage; first and foremost, each and every Jew has the right to immigrate to the State of Israel. Other aspects are Hebrew being the main official language of the State and the inextricable link to Jewish culture in public life. On the other hand, the characterization of the State as Jewish is not intended to bestow extra privileges on its Jewish citizens and does not obligate the imposition of religious requirements by state law.

The State of Israel is democratic in the following sense: the sovereign is the entire community of the nation's citizens (and it alone), irrespective of ethnic-national origin. In the main, the character of the State as a democratic country is manifested by two basic principles: the first being the recognition of the dignity of man qua man, and the second, derived from the first, is the recognition of the values of equality and tolerance. Arrangements regarding free and equal elections, the recognition of the core human rights, including dignity and equality, separation of powers, the rule of law, and an independent judiciary, are all drawn from these principles. Democracy's basic principles require equal treatment of all those included as citizens of the State, without regard to their ethnic, religious, cultural, and linguistic affiliations.[9]

The IDI concludes that "the definition of Israel as a 'Jewish state' does not contradict its definition as a 'state of its citizens.' Although the State is Jewish in that, within its framework, the realization of certain interests of the Jewish people is ensured and its identity is protected and developed, nonetheless, its sovereignty lies in its community of citizens, including the non-Jewish community."[9]

The boundaries of the definition of "a Jewish and democratic state" are subject to public discourse in Israel, in context of the relation between state and government. Already in 1994, the question whether Israeli Government (i.e. the Cabinet) is permitted to limit the import of Non-Kosher meat, despite the Basic Law: Freedom of Occupation arose. Initially, the Israeli High Court of Justice ruled that the government is not permitted to limit such import of non-Kosher meat. However, after the Knesset passed some amendments to the basic laws, the limit was included.

Another debate was on the issue of whether the state is permitted to limit the leasing of national land in certain areas of Israel exclusively to Jews.

The Diversity of Israeli Society has produced a few main approaches to the definition of "a Jewish and Democratic State", which the current commonly accepted approach is the combination of all of them: "A Torah State" (Halachic state), "National-Religious State", "National Culture State", "The State of the Jewish People", "The Jewish State", and "The Jewish State and the State of all its citizens".

According to a 2013 Israel Democracy Institute poll, three-quarters of Israeli Jews "believe that the State of Israel can be both Jewish and democratic", whereas two-thirds of Israeli Arabs do not believe that such a combination is possible.[10]

The Fifteenth Knesset again amended the "Basic Law: The Knesset", in order to enforce the limit not only upon a party of candidates list but also upon each individual, separately:

"7A. A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following: (…) (1) negation of the existence of the State of Israel as a Jewish and democratic state; (…)"[11]

— Basic Law: The Knesset (1999)[11]

During the Elections for the 16th Knesset, the Israeli Central Elections Committee disqualified the candidacy of Azmi Bishara and of Ahmad Tibi based upon this law. The petition to disqualify right-wing activist Baruch Marzel was rejected. As a result of this rejection, petitions were submitted to the High Court of Justice against all three rulings of the Central Elections Committee. Therefore, the clause within the Basic Law: The Knesset, was now a subject to a thorough judicial examination by the High Court of Justice,[12] and eventually the High Court of Justice had turned around the former two ruling by Central Elections Committee, and approved the latter, hence, all three candidates were permitted to participate in the elections.

Regarding the meaning of the definition of "Jewish and democratic state" in this section of the law, then President of the Supreme Court of Israel, Aharon Barak, wrote that a narrow interpretation should be given to it, since it limits a basic right, in contrast to the broader interpretation that should be given to laws concerning Human rights.

Concerning the minimal interpretation of "a Jewish State", Justice Aharon Barak ruled that:

"What, then are the 'core' characteristics shaping the minimum definition of the State of Israel as a Jewish State? These characteristics 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; 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".

— Aharon Barak 11280/02

According to Chief Justice Barak the minimal definition of "a Democratic State" is:

"Recognition of the sovereignty of the people manifested in free and egalitarian elections; recognition of the nucleus of human rights, among them dignity and equality, the existence of separations of powers, the rule of law, and an independent judiciary system"

— Aharon Barak 11280/02

Therefore:

"A list of candidates or a candidate may not participate in the elections if the cancellation or denial of these characteristics is central and dominant among their ambitions and activities; and they act decisively to realize these ambitions; and provided all can be persuasively, clearly and unequivocally proved by the established evidence. "

— Aharon Barak 11280/02

Chief Justice Barak pondered whether every candidates list objecting the existence of Israel as a Jewish and democratic state should be disqualified, or a "Probabilistic standard" should be adopted, wherein according to this standard, a candidates list may be disqualified only if there is a real chance that it will actually succeed in promoting its goals that are in contradictory to the nature of Israel as a Jewish and democratic state. Eventually, he left that question open for future judicial debate, stating that "it requires more review".

• Halachic state (a Jewish-theocratic State)
• Der Judenstaat (German, The Jewish State; Theodor Herzl's book)
• Homeland for the Jewish people (the national Israeli expression)
• Jewish state
• Ethnic democracy
• Basic Law: Israel – The Nation State of the Jewish People

6. Joseph E. David, The State of Israel: Between Judaism and Democracy(Jerusalem: IDI Press,2003)

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• A Jewish and Democratic State, WZO.