Photo Credit: Flash 90
The Israeli flag at the Kotel.

There seems to be no end to the myths surrounding the Jewish state.  Israel is accused of being an apartheid state, an occupier of Palestinian Arab lands, and an international war criminal. On December 28, 2016, US Secretary of State John Kerry added another canard to this litany when he warned that if Israel rejects a two-state solution, “it can be Jewish or it can be democratic-it cannot be both.”

Mr. Kerry, thereby, demonstrates his limited understanding of how Israel is governed as well as how against incredible odds the country remains both Jewish and democratic.  Nor did the Obama administration even attempt to draw such a distinction in its outright support of the Muslim Brotherhood-based government of Mohammed Morsi in Egypt.

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Michael Oren, former Israeli ambassador to the US, observed that the U.S. Britain and Canada are among the few countries in the world that have had continual democratic governments. Although from inception Israel has been threatened with extinction, she has never yielded to the wartime demands of instituting onerous restrictive laws that often destroy other democracies.

Equal Rights to All Even to Those who Refute Israel’s Right to Exist

If anything, the Palestinian Arab/Israeli conflict has “tempered” Israeli democracy, providing equal rights even to Arabs and Jews who refute her right to exist. “Is there another democracy,” Oren asks, “that would uphold the immunity of legislators who praise the terrorists sworn to destroy it? Where else could more than 5 percent of the population — the equivalent of 15 million Americans — rally in protest without incident and be protected by the police. And which country could rival the commitment to the rule of law…whose former president was convicted and jailed for sexual offenses by three Supreme Court justices — two women and an Arab? Israeli democracy, according to pollster Khalil Shikaki, topped the US as the most admired government in the world — by the Palestinians.” [1]

What is equally remarkable Oren opines, is that Israel was founded by Jews from autocratic societies who were forced to grapple with issues of identity and security that would have overwhelmed even the most seasoned democracies. These discussions occurred at a time when they were occupied in absorbing almost two million Jewish immigrants from the Middle East and the former Soviet Union. [2]

A Nation-State where National Character and Language of the Arab Minority is Officially Recognized

While Israel’s institutions and principles of governing are democratic, the Jewish state is nevertheless different. Like Bulgaria, Greece, and Ireland, Israel is a nation-state, but with a large Arab minority, whose national character and language are officially recognized.

Though Judaism plays a preeminent role in the country’s public and political life, Judaism is not Israel’s national religion, unlike Denmark, Great Britain, and Cambodia, which have a national religion. And in contrast to the other democracies in the world, Israel has never lived in peace with her neighbors.  Israel continually struggles with balancing the responsibilities of preserving liberty, while safeguarding her national existence. [3]

Israeli historian Alexander Yacobson and Amnon Rubinstein, a former Israeli Minister of Education, point out that except for Lebanon, the constitutions of the Arab countries acknowledge Islam as the state religion, and confer official status to Sharia law, albeit in different formulations. Syria’s constitution states that Islam is the religion of the head of state, while declaring Sharia is the primary source of legislation. Though some Western democracies have “official, established,” or state churches, this does not preclude freedom of religion for those practicing other religions. [4]

Israel’s refusal to compromise democratic principles even during times of extreme national emergency has not gone unnoticed.  “Congress should have spent more time learning from the Israeli experience,” wrote Harvard Law School dean Martha Minow and Professor Gabriella Blum in 2006, noting that Israel provides broader rights to security detainees than the United States. In spite of the unrelenting and often existential nature of the threats confronting Israel, the country has maintained the standards established on the day of her independence. As Arab armies joined with local Arab forces in attempting to destroy the nascent state, Ben-Gurion determined that Israel “must not begin with national discrimination.’” Israeli Arabs vote and run for political office. [5]

Israel is Not a Theocracy

Contrary to a popular myth, Israel is not a theocracy.  More accurately, Israel is “a nation-state of the Jewish people,” including many who would not be considered Jewish according to Jewish law. In many areas, Israel is exceptionally liberal, with progressive legislation on gay rights, support for single-parent families, and abortion. Israel never had a “don’t ask, don’t tell” policy for her military. Restrictions on gay enlistments were removed in 1993. Same-sex couples are granted the same rights as heterosexual couples, and Israel offers refuge to Palestinian Arab homosexuals fleeing from Islamists in Palestinian Arab controlled areas. [6]

Aharon Barak, a former President of Israel’s Supreme Court, claims the emphasis on human rights is a direct result of the Holocaust from which Israel has learned “that human rights are the core of substantive democracy…without protection for human rights, there can be no democracy and no justification for democracy.” [7]

Religious parties participate in elections, and although the Chief Rabbinate wields broad influence regarding lifecycle events (marriage, burial), Israel’s secular legislative and judicial branches and security services have the definitive authority. [8]

In other words, “Israel has no official state religion, and Judaism does not enjoy any legally privileged status (other than that which derives, as a matter of course, from its being the religion of the majority)” asserts Amnon Rubenstein, a former dean of the Tel Aviv Law School. [9]

This arrangement is the result of Israel having adopted the system used by the Ottoman Empire, which grants jurisdiction on family law, marriage, and divorce to religious communities. Israel has given this right to the Muslim, Christian, and Druze courts. This is limited to matters of family, and not criminal law.  They also supervise their own sacred spaces. These minority groups are, for the most part, similar with regard to religious observance, and view their religious beliefs and traditions as an integral part of their national identity. The Temple Mount, which is also venerated by Muslims, continues under the control of the Islamic Waqf. Given this level of autonomy, they would not want the system replaced by a civil one. [10]

To be sure, the Jewish holidays of Rosh Hashanah, Yom Kippur and Passover are national holidays in the same way that Christmas is in the US and Good Friday and Easter are in many European countries.  Rubenstein adds that countries, for the most part, accept the holidays of the majority culture or religion. In Republican France, for example, which is laïque or secular as is possible, the national holidays are Catholic, and Sunday is the official day of rest. When Rubenstein served as minister of communications, he issued stamps commemorating Christmas and Eid ul-Fitr (with the Church of the Nativity on the Christmas stamp; the Muslim stamp had a picture of a famous mosque in Acre). The Knesset approved the stamps without even “a murmur of dissent.” [11]

Jewish State” Refers to National, Not Religious Identity

Highlighting Kerry’s fundamental misunderstanding, Hebrew University law professor Ruth Gavison explains that the term “Jewish state” refers to national, not religious identity. Confusion exists because “the relationship between nationality and religion in Judaism is a unique one. No other people has its own specific religion. The Arab peoples, for example, comprise Christians, Muslims, and Druze. While there was a time when the French were mostly Catholics or former Catholics, they still waged religious wars with the Huguenots, and today a large number of Frenchmen are Muslim. [12]

At the same time, no other religion has a specific nationality of its own: Christians can be French, American, Mexican, or Arab; Muslims, too, can be Arabs, Persians, or African-Americans. This distinction is not merely the result of secularization: Judaism, at least from a historical perspective, has never differentiated between the people and the religion. Nor was there any belated development that altered this unique fact: Social stereotyping never allowed an individual to be a part of the Jewish people while at the same time a member of another religion; nor could one be an observant Jew without belonging to the Jewish people.” [13]

Critics of Israel’s Jewish character, who maintain that a liberal democracy should remain neutral with regards to the country’s cultural, ethnic, and religious identity of its population and of its public arena, are unrealistic. The principle overlooks the legitimate needs and desires of the majority of its citizens, and the prerequisites needed for a modern state to operate. [14]

As Ruth Gavison posits “it is the duty of every democracy to reflect the basic preferences of the majority, so long as they do not infringe on the rights of others. In Israel’s case, this means preserving the Jewish character of the state… the existence of such a state is an important condition for the security of its Jewish citizens and the continuation of Jewish civilization.” [15]

Further, in establishing the Jewish state, the international community viewed this as an undertaking of historic proportions for the Jewish people by a way to resolve the problem of the Jewish displaced persons in Europe after World War II, and the need to solve the problem of the Jews as a homeless people. When the UN General Assembly passed Resolution 181 on November29, 1947 to partition Palestine into a Jewish and an Arab state, they were restoring the Jewish people to their ancient homeland. The resolution distinctly mentioned the phrase “Jewish state” 27 times. [16]

Dispelling the Myth That Palestinian Arabs in Judea and Samaria do not have “Democratic Rights”

Another myth that is that Palestinian Arabs in Judea and Samaria do not have “democratic rights, legal recourse, or any say in their future, and that Israel has taken no serious measures to facilitate Palestinian statehood.” The majority of the Palestinian Arabs living in these areas area are administered by the Palestinian Authority. Palestinian Arabs residing under Israeli control vote in the Palestinian Arab elections. When the elections were postponed in January 2010, the Palestinian Arab leadership made the decision, not the Israelis.  Palestinian Arabs in East Jerusalem also vote in the Palestinian Arab elections.

The legal status in Judea and Samaria cannot be reduced to democracy or no democracy. Palestinian Arab living under auspices of the Palestinian Authority are subject to their laws. In Israeli-controlled areas, Palestinian Arabs arrested for security offenses, Israeli military law, based on British and Jordanian precedents, is imposed. Such a makeshift system appears daunting, but all Palestinian Arabs have the right to appeal directly to Israel’s Supreme Court. When Palestinian Arab villagers have contested the location of Israel’s security fence, alleging it encroached on their land, the justices have often instructed the fence be moved. “One of the most unusual aspects of Israeli law is the rapid access that petitioners, including Palestinians, can gain to Israel’s highest court,” the New York Times observed in 2003, noting that even during periods of intense battles, “the high court was receiving and ruling on petitions almost daily.” [17]

This anomaly is not unique. Residents of Washington, D.C. pay taxes without representation, and those residing in US territories of Guam, Puerto Rico, and the Virgin Islands are not allowed to vote in presidential elections. Because of Israel’s unequivocal determination to remain a Jewish and liberal democratic state, she wants to end this inconsistency and resolve the conflict with the Palestinian Arabs.

Israel’s ability to protect the rights of minorities and the need to balance civil liberties with security requirements forces Israel to seek equilibrium between democracy and pluralism. The task is especially arduous, when the beliefs of large and vocal segments of society conflict with democratic standards. Ultra-Orthodox Jews, for example, vigorously oppose billboards depicting scantily clad women or having women and young girls walk immodestly dressed in their neighborhoods.

Religious concerns are not unusual. Living in a liberal democracy requires balancing the need for public freedom, obeying the law and being sensitive to the religious beliefs of fellow citizens.  Israeli culture tolerates a wide variety of political and religious practices. [18]

Jeering or interrupting a president during a speech generates headlines in America, but, in stark contrast to the neighboring societies, when a member of Knesset disrupts an Israeli prime minister, it is so common there is nothing to convey. This is why former Arkansas Governor Mike Huckabee told John Kerry that Israel “is a Jewish state and it has been for 4,000 years, and it’s a democracy.” He suggested the secretary “come and see how people… not only elect their officials, but how they scream at them. The greatest sign of freedom of speech is that you can criticize your government and not be put in jail or killed for it.” [19]

Footnotes

[1] Michael Oren,” Israel’s Resilient Democracy,” Foreign Policy (April 5, 2012.)

[2] Ibid.

[3] Ibid.

[4] Alexander Yakobson and Amnon Rubinstein, Israel and the Family of Nations: The Jewish Nation-State and Human Rights (New York: Routledge, 2010), 46; Alexander Yakobson, “Israel Can Be Both Jewish and Democratic. Here’s How,” Haaretz (May 29, 2014).

[5] Ibid; “Professors Minow and Blum weigh in on detainee bill,” Boston Globe (October 18, 2006).

[6] Oren, op.cit; Danny Kaplan, “They’re Here, They’re Queer, It’s No Big Deal,” Foreign Policy (February 3, 2010); Lahav Harkov, “Netanyahu voices support for gay rights on Knesset LGBT Day,” The Jerusalem Post (February 23, 2016); Amnon Rubinstein, “The Curious Case of Jewish Democracy,” Azure No. 41(Summer 2010); Boaz Arad, “Chinese travel guide dubs Tel Aviv ‘gay paradise,’” Ynet (July 10, 2010); Liam Hoare, “The Next Struggle for Israel’s Gay Community,” The Tower (September 2014)

[7] Aharon Barak, The Judge In A Democracy (Princeton, New Jersey: Princeton University Press, 2006), xi, 9-10, 86-88.

[8] Oren, op.cit

[9] Rubinstein, “The Curious Case of Jewish Democracy,” op.cit.

[10] Ibid.

[11] Ibid.

[12] Ruth Gavison, “The Jews’ Right To Statehood: A Defense,” Azure No.15 (Summer 2003).

[13] Ibid.

[14]Yakobson and Rubinstein, op.cit. 141-142; Gavison, op.cit.

[15] Gavison, op.cit; Menachem Mautner, Law and the Culture of Israel (New York: Oxford University Press, 2011); for further discussion of this issue from a left of center perspective, please see, Chaim Gans, A Just Zionism: On the Morality of The Jewish State (New York: Oxford University Press, 2008), 53-59; Chaim Gans, The Limits of Nationalism (Cambridge.  England: The Press Syndicate of the University of Cambridge, 2003), 23-26; Chaim Gans, “Before and after 1967,”Haaretz (June. 27, 2010).

[16] Yakobson, op.cit.17; Jacob Robinson, Palestine and the United Nations: Prelude to Solution (Westport, Connecticut: Greenwood Press, Publishers, 1947), 205-207, 209-210); Joshua Teitelbaum, “Israel as the Nation-State of the Jewish People: From the San Remo Conference (1920) to the Netanyahu-Abbas Talks,” Jerusalem Center for Public Affairs No. 579 (September 15, 2010).

[17] Oren, op.cit.

[18] Ibid.

[19] Eliran Aharon, “Huckabee to Kerry: Yes, Israel is both Jewish and democratic,” Israel National News (December 28, 2016); Andrew C. McCarthy, “Kerry to Israel: A State Cannot Be Both Jewish and Democratic,” National Review (December 28, 2016); Michael Warren, “Kerry Scolds: In One-State Solution, ‘Israel Can Either Be Jewish or Democratic. It Cannot Be Both,’” The Weekly Standard (December 28, 2016).

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