Convocation Address by Professor Aharon Barak, President (Ret.) of The Supreme Court of Israel
Delivered (in Hebrew) on the occasion of receiving the degree of Doctor of Human Letters, honoris causa, at the Ordination and Academic Convocation at HUC-JIR/ Jerusalem, November 10, 2006
A Formulation Carrying a Heavy Normative Load
With the enactment of Basic Law: Human Dignity and Freedom and Basle Law: Freedom of Occupation, the phrase "the values of the State of Israel as a Jewish and democratic state" has become part of Israel's legal and social culture. This phrase has a twofold importance: First it prescribes the general aims underlying these two basic laws. The basic laws provide that their aim is to safeguard the dignity and freedom of occupation, "in order to anchor in a basic law the values of the State of Israel as a Jewish and democratic State". The values of the State of Israel as a Jewish and democratic state, then, serve as an interpretative criterion, determining the scope of the application of the provisions of the basic law. Thus, for example, the protection of property or privacy is intended "to safeguard human dignity and freedom, in order to anchor in a basic law the values of the State of Israel as a Jewish and democratic state." But beyond that it is only natural that to interpretative guidance given by the values of the State of Israel as a Jewish and democratic state should not be restricted only to the basic laws dealing with human rights. It is not to be assumed that, for the purposes of the Basic Law; Human Dignity and Freedom and Basic Law: Freedom of Occupation, recognition is to be given to the values of the State of Israel as a Jewish and democratic state, while for the purposes of other laws, other than the basic laws dealing with human rights, the values of the State of Israel are different. This is not the way of proper constitutional interpretation. Purposive constitutional interpretation regards constitutional provisions as a unity. If the values of the State of Israel, as a Jewish and democratic state are anchored in the basic laws dealing with human rights, then they also apply beyond the strict confines of these basic laws and serve for the interpretation of all our constitutional provisions and for the interpretation of all our statutes. The second importance of phrase "the values of the State of Israel as a Jewish and democratic state" extends beyond its interpretative effect. The values of the State of Israel are not only a criterion for interpreting our human rights; they are also the constitutional criterion for the constitutional restriction of human rights. The restrictive section in Basic Law: Human Dignity and Freedom (similar to that appearing in Basic Law: Freedom of Occupation) provides:
|Rights granted by this Basic Law may be infringed only by a statute, conforming to the values of the State of Israel, which is intended for a worthy purpose, and not to a greater extent than is necessary, or in accordance with such stature by virtue of an express authorization therein.|
Within the limitations of this section the values of the State of Israel serve as the criterion for the constitutionality of any status that infringes human rights anchored in the basic laws. A statute infringing such rights is constitutional only if it satisfies a number of requirements. One of these requirements is that the infringing statute conforms to the values of the State of Israel as a Jewish and democratic state. Indeed, a statute, which infringes a protected human right, will not be constitutional, even if it is for a worthy purpose, and even if it does not do so to a greater extend than is necessary, if such infringement of the human right does not conform to the values of the State of Israel as a Jewish and democratic state.
Hence, the values of the State of Israel as a Jewish and democratic state have a twofold importance. These values constitute the criteria for the purpose interpretation of the basic laws. It is this purposeful interpretation that determines the scope of the application of the basic laws. In the light of such interpretation all legal provisions are interpreted. In addition, the values of the State of Israel as a Jewish and democratic state constitute an indispensable condition for the validity of any statute that infringes a constitutional human right. It must be remembered that the normative status given to the values of the State of Israel as a Jewish and democratic state is not the same as the status of their values that are part of our legal system. The normative status of the values of the State of Israel as a Jewish and democratic state is a constitutional-super-statutory normative status. Ordinary legislation that infringes a constitutional right will be invalidated, even if it is for a worthy purpose and does not exceed the extent that is necessary, if it does not conform to the values of the State of Israel as a Jewish and democratic state.
We find, therefore, that the phrase "the value of the State of Israel as a Jewish and democratic state" has considerable legal importance. It has a constitutional status. It is not just a phrase that carries no normative message. This formulation bears a heavy and important load. It has an effect both on prescribing the scope of a human right and also on prescribing the protection given to it in Israeli law. Hence the considerable importance of the answer to a question: What are the values of the State of Israel as a Jewish and democratic state? How are they determined? What weight is to be given to them? And what is the relationship between the values of the State of Israel as a Jewish and democratic state and its values as a democratic state?
Answer within the Framework of Consensus
The phrase "the values of the State of Israel as a Jewish and democratic state" is a vague statement. As a text, it does not indicate an unequivocal answer. Determining the extent of the application of the phrase will keep us very busy in the future. I say "us" and by this I mean the whole of Israeli society and not just the lawyers within it, and Jews outside Israel. Indeed, the phrase "the values of the State of Israel as a Jewish and democratic state" in the basic law reflects something that is instinctive about the State of Israel and about Israeli society. We are not a people like other people. We are not a state like other states. We are a democracy and our values are like the values of any democratic state. But we are also a Jewish state and for this reason our values are the values of a Jewish state. Israeli society as a whole is going to have to contend with this duality. Thinkers and researchers, rabbis and professors, yeshiva students and university students - all the strata of Israeli society and Jews around the world- will have to ask themselves what are the values of the State of Israel as a Jewish and democratic state.
Our Distinctiveness as a Jewish State
The values of the State of Israel as a Jewish and democratic state distinguish it from the other democratic states. There are many democratic states in the world, but only the State of Israel is a state that is not only democratic, but also Jewish. The words of the Declaration of Independence should be noted:
|The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the whole world the eternal Book of Books.|
A "Jewish State", therefore, is the state of the Jewish People; "it is the natural right of the Jewish People, like all other peoples, to be masters of their own fate in their own sovereign state". A state to which every Jew has the right to immigrate and one of those basic values is the ingathering of the exiles. A "Jewish State" is a state whose history is intertwined with the history of the Jewish People, whose principal language is Hebrew and whose main festivals reflect its national rebirth. A "Jewish State" is a state primarily concerned with the settlement of Jews in its fields, its towns and its villages. A "Jewish State" is a state the perpetuates the memory of the Jews who were slaughtered in the Holocaust, and it is intended to "solve the problem of the Jewish People deprived of its homeland and independence by re-establishing the Jewish State in the Land of Israel". A "Jewish State" is a state that fosters Jewish culture, Jewish education and love of the Jewish People. A "Jewish State" is "the realization of the age-old dream of the redemption of Israel". A "Jewish State" is the state for which the values of freedom, justice, equity and peace embodied in the Heritage of Israel and its values. A "Jewish State" is a state whose values are derived from its religious tradition for which the Bible is its basic book and the Prophets of Israel are the foundation of its morality A "Jewish State" is a state in which Jewish Law plays an important role. A "Jewish State" is a state for which the values of the Torah of Israel, the values of the Heritage of Judaism and the values of Jewish Law are among its fundamental values.
The Values of the State of Israel as a Jewish State
The application of the phrase the "values of the State of Israel as a Jewish State" leads to the conclusion that there are two main aspects to the State of Israel as a Jewish and democratic state. One is the Zionist aspect and the other is the legal or heritage aspect. An outstanding expression of the Zionist aspect is to be found in the Laws of Return, which makes Israel into the national home of every Jew in the world. An outstanding expression of heritage aspect is to be found in the Legal foundations law, which provides:
If the court has before it a legal question requiring its decision and has not found an answer to it in legislation, decided cases or by way of analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace in the Heritage of Israel.
In my opinion, Zionism, on the one hand, and Jewish heritage, on the other, have both left their mark on the Jewish character of the State of Israel. It goes without saying that there is a close connection between the Zionist aspect and that of Jewish heritage, and they often overlap. Many things that find expressions in the Heritage of Israel also find expressions in Zionism, with the distinction between the two being artificial. The very concept of Zionism, the centrality of the Land of Israel and of Jerusalem, its capital, the Hebrew Language and the festivals - each of these have both an aspect derived from the Heritage of Israel and a Zionist aspect, without it being at all possible to distinguish between them. Moreover, there also exists a connection between the values of the State of Israel as a Jewish state and the values of the State of Israel as a democratic state. It was Judaism that has made human dignity a supreme constitutional value by depriving the dignity of man from the honor due to the Creator, because man is created in His image. Human rights too, find their expression in our Heritage of Israel. Nevertheless, a scientific objective view must keep in mind the distinction between those different elements, even if the tendency in interpretation should be to find a synthesis between them.
A Jewish State in its Zionist Aspect
A Jewish State is a state that expresses the Zionist vision. It is the world of Zionism. It is the vision of the children returning their ancestral land. It is the vision of the national home of every single Jew. Hence, the right of every Jew to immigrate to Israel - a right guaranteed in the law of Return 5710 -1950. A Jewish State in its Zionist aspect is a state whose principal language is Hebrew, whose culture is Jewish, and whose main festivals reflect the national resurgence of the Jewish People. A Jewish State from the point of view of its Zionist aspects is a state that redeems state lands for the settlement thereon of Jews. A Jewish State in its Zionist aspects is a state whose national anthem is "HaTikvah" and whose flag is the blue and white flag.
A Jewish State in its Heritage Aspect
The values of the State of Israel as a Jewish state include its heritage values. It is the "world of the Halacha". We learn about these values from the world of the Halacha itself. It is the internal world of Judaism that must give us the answer as to what its values are. They are an endless ocean. In it are to be found the values of the State of Israel as a Jewish state at different levels of abstraction, from a particular rule in a particular matter to universal values such as loving one's neighbor as oneself and doing that which is right and good. It thus contains particularistic and universalistic values; values as they have developed throughout the history of the Jewish People over the generations. These are certainly to be found in its values that complement each other and values that contradict each other. It is an entire universe.
The Values of the State of Israel as a Democracy
The values of the State of Israel as a democratic state have two bases; the one, the rule of the people through its elected representatives. The other the rule of certain values and principles, including separation of powers, the rule of law, the independence of the judiciary and the portection of human rights. For sure, democracy is not just the rule of the majority. It requires the recognition of certain fundamental values, the central ones being human rights. There is no democracy if the majority denies the minority its rights. The world of democracy is rich and multi-faceted. It contains various and diverse approaches regarding the proper paths for the attainment of democracy. There is no single, exclusive conception of democracy. There are democracies in which there is judicial review of the constitutionality of a statute after it has been promulgated (such as America, Canada, Germany, Italy and Israel) and there are democracies in which there is no such review (Holland, France). There are democracies based on complete separate of religion and State (USA, France), and there are democracies without such full separation (The United Kingdom, Israel). The protection of freedom of expression in America is different from the protection of freedom of expression in Canada. The freedom of a pregnant woman to have an abortion in America is not the same as in Canada and neither of them is the same as in Germany.
The Relationship between the Jewish Aspect and the Democratic Aspect
What is the relationship between the values of the State of Israel as a Jewish state in its Zionist Aspect and the values of the State of Israel as a Jewish state in its heritage aspect? What is the relationship between both of these and the values of the State of Israel as a democratic state? It seems to me that a proper constitutional conception necessitates an attempt to achieve reconsolidation and harmony between those values, by seeking constitutional unity and normative harmony, while attempting to find that which unifies and that which is common to them and while preventing conflict between them and minimizing points of friction. We should strive to find a common denominator and synthesis between the values of the State of Israel as a Jewish state and its values as a democratic state.
We should seek the integration and harmonization of the different values of the State of Israel in an attempt to create a homogenous conception. To this end we must refer, on the one hand, to the internal sources of the State of Israel as a Jewish state (in its various aspects), and on the other hands, to the internal sources of the State of Israel as a democratic state. The information obtained from these sources must be "processed" and "synthesized" in such a way as will produce values that will be in accord with the different aspects of the State of Israel. For we have to understand this: in each of the aspects of the State of Israel as a Jewish state - from this point of view of the realization of the values of Zionism and from the point of view of the recognition of the values of Judaism - and as a democratic state, there are differences of opinions and differences of nuances. Zionism is not monolithic. There are within it different, and sometimes opposing view as to the ways to fulfill the Zionist vision in the State of Israel. In the same way Judaism is not homogeneous. It contains different streams and different and differing outlooks. The concept of democracy, too, is not one-dimensional. The world of democracy is rich and multi-faceted. It comprises various and diverse approaches to the proper ways to attain democracy. There is not a single, exclusive conception of democracy. There are indeed in each of the value components of the State of Israel, many, and at times contradictory, trends. We have before us, therefore, a substantial area within which the interpreter is free to do his work. The interpreter- striving for reconciliation and harmony - must take from each of the Zionist, Heritage and democratic sources those values, conceptions and principles in it that are compatible with the values and principles to be found in other sources. He must not take from them values that produce conflict and contradiction. Thus, for example, if we find in the world of Judaism, both a particularistic stream and a universalistic stream, the interpreter will probably adopt the universalistic stream, because it is more compatible with the values of the State of Israel as a democratic state than is the particularistic steam. In the same way if, within the conception of democracy, it is possible to regard interpersonal relations in different ways, it is only right to adopt that approach that is compatible with the view of Jewish Heritage.
The Failure of Reconciliation and Harmony - What Then?
The interpreter aspires to reconciliation and harmony between the values of the State of Israel as a Jewish state and its values as a democratic state. We must expect that there will be occasions when this aspiration cannot be realized; the attempts to find a common dominator are likely to fail; the values are likely to diametrically opposed so that a synthesis between them is impossible, or it becomes irrelevant to the solution of the particular problem requiring a decision. What is the judge to do in such a situation? There are those who think that the constitutional text requires us to give preference to the values of the State of Israel as Jewish state (whether in the meaning of the Heritage of Israel or in the meaning of Zionism). There are others who think that the text requires that preference be given to the values of the State of Israel as a democratic state. I consider neither of these approaches to be correct. The constitutional text is not based on chronology, nor does it contain within it a resolution of this question. It is a matter for judicial deliberation and discretion. In exercising such deliberation and discretion the judge may not decide just on the toss of a coin. He must act rationally, he must act objectively; he must choose that solution, which, more than any other, is in conformity with the general structure of the legal system. He must arrive at that solution which is in conformity with the other aims underlying the basic laws, which provide:
|Fundamental human rights in Israel are grounded on the recognition of the value of man, of the sanctity of his life and of his being free, and they shall be upheld in accordance with the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.|
He must produce a solution which is comparable with our constitutional history. He must produce that solution which is in conformity with the consensus in Israeli society. He must produce that solution which has links to the past and at the same time serves as the basis for development in the future. All of this imposes a heavy task on the judge. He is trained to bear it. He has been able to discharge this task in other situations in which he is required to exercise his discretion. He will be able to discharge it in this special situation as well.
The Non-Jewish Minority
In analyzing the values of the State of Israel as a Jewish and democratic state, and in creating a balance between them, we must take into consideration the many non-Jews who are living here with us. It is true that there is a special key to the house known as the State of Israel that has been given the members of the Jewish people. This is for Zionistic reasons and for reasons of our Jewish heritage. This is not discrimination against non-Jews. For surely, when the underlying reason for the establishment of the State is that it should be a national home for Jews, wherever they are, then the granting of the right of immigration to Jews is not discrimination against non-Jews. It is recognition of a difference that does not constitute discrimination. But once a person is living here, in our national home, he has a right to equality, whatever his religion may be and to whatever people he may belong .The values of the State of Israel as a Jewish and democratic state certainly do not require that the State should discriminate against its non-Jewish citizens. Jews and non-Jews are citizens having equal rights in the State of Israel. The values of the State of Israel as a Jewish state incorporating the Heritage of Israel are not based on discrimination against the non-Jew. It has been rightly noted that the principle of equality and the prohibition of discrimination, embodied in the command 'You shall have one law as well for the stranger as for the home-born' (Leviticus 24:22), as interpreted by our sages to mean 'a law that is equal for you all' (Ketubot 33a, Bava Kama 83b) has been a "sacred principle in the Torah of Israel ever since it became a people". Justice Elon has pointed out that "the idea of the creation of Man in the image of God (Genesis 1: 27) is a firm principle in the world of Judaism. The Torah of Israel starts with it and from it Jewish law has derived fundamental principles regarding the value of man - any man, whoever he may be- the equality of man and the love of man".
The values of the State of Israel as a Jewish-Zionist state, too, are not based on discrimination against the non-Jewish citizen. The Declaration of Independence called on "the Arab inhabitants of the State of Israel to preserve peace and participate in the up-building of the State on the basis of free and equal citizenship". Zionism has never been based on discrimination against the non-Jew, but on his integration in the Jewish national home. Zionism was born as a reaction against discrimination and against racism. The values of the State of Israel as a democratic state most certainly are opposed to discrimination and require equality. In the Declaration of Independence it is stated that the State of Israel will ensure complete equality of social and political rights for all its citizens irrespective of religion, race or sex". A democratic state is surely obliged to respect the basic right to equality of each individual in it and to safeguard such right. Equality is the very foundation of social existence. It is one of the central pillars of the democratic form of government. It is vital to the social contract underlying the structure of society. I have stressed this in one of my judgments when I stated:
|Equality is a fundamental value of every democratic society ... The individual is integrated in the all-embracing fabric of society and undertakes his part in building it up, knowing that the others are doing the same. The need to ensure equality is a natural need of man. It is founded on considerations of justice and fairness. He, who seeks recognition of his right, must respect the right of the other and seek the like recognition of it. The need to establish and maintain equality is vital for society and the social contract upon which it is built. Equality saves governments from arbitrariness. There is, indeed, no factor more destructive of society than the feeling of its sons and daughters that they are being treated in accordance with a double standard. The feeling that there is inequality is the most injurious of feelings. It undermines the forces that unite society. It damages man's sense of his own identity.|
Justice Berenson expressed this well more than thirty years ago:
|When we were exiled from our land and sent far from our country we became the victims of the nations of the world among whom we were living and throughout all the generations, we tasted the bitter taste of persecution, opposition and discrimination, just because we were Jews 'whose laws are different from those of every people'. Having undergone this bitter and wretched experience, which has penetrated very deep into our national and human consciousness, it is to be expected that we will not go the perverted way of the nations of the world and as our independence in the Land of Israel is renewed we must take care to be on guard against any trace of discrimination or application of double standards towards any law abiding non-Jew who is living here with us and who wants to live here with us in his own way, according to his religious practice and faith. Hatred of strangers is a twofold curse. It destroys the Image of G-d that is in the hater and it brings down evil on the hated, who has done no wrong. We must show a benevolent and tolerant attitude towards all who are created in the image of G-d and uphold the great principle of equality in rights and duties of all men.|
Equality is a complex right and is not on every occasion, when people are treated differently, that they are being discriminated against, nor is it on every occasion, when people are being treated the same, that they are being treated equally. Furthermore, just like every other right, equality too is not obsolete. It may be infringed, whether by way of affirmative discrimination - which some people do not consider to be discrimination at all - or by way of ordinary discrimination. But this may only be in accordance with a statute that upholds the values of the State of Israel and is intended for a worthy purpose and the infringement not being to a greater extent than is necessary.
Equality "Irrespective of Religion Race or Sex"
Equality extends over all spheres of life in the State. Therefore, equality must be maintained between people belonging to different religions, national groups, communities, races, parties, sexes, ages, outlooks and organizations. There is no need to point out that this list is not exhaustive. Let me concentrate on one aspect of equality - equality between religions and national groups. The Declaration of Independence prescribed this equality when it declared that the State of Israel would ensure equality between its citizens "irrespective of religion, race or sex". This means that all citizens of the State - irrespective of religion or race - are entitled to equality. The State may not discriminate between its citizens on the basis of religion or race. Therefore, the rights and duties of the religiously observant people are to be the same as the rights and duties of the secular person, unless, that is, a difference in rights or duties promotes equality. Hence the Supreme Court has consistently held that the financial support given by the State must be granted on the basis of equality.
The Judge is Part of the People
The saying of the writer 'Shalom Aleichem', that it is hard to be a Jew, is well known. This is so both in the Heritage and in the Zionist meanings. It is also hard to safeguard democracy when it has to defend itself from its enemies. In one case, in which we held that torture may not be used in questioning terrorists, I wrote:
|It is the fate of democracy that not all means are regarded by it as legitimate and not all the methods used by its enemies are available to it. More than once democracy has had to fight with one hand tied behind its back. Despite this, democracy has the advantage because the preservation of the rule of law and the recognition of the rights of the individual constitute an important component in its conception of its defense. At the end of the day they reinforce its spirit and its strength and enable it to overcome difficulties.|
And if it is hard to be a Jew, it is seven times more difficult to be a judge in the Jewish and democratic State. The difficult problems confronting us are many. The relationship between the values of Israel as a democratic state and its values as a Jewish state, both in the Jewish-Zionist sense and in that of a Jewish heritage, is one of them. Nevertheless, the Israeli courts have been able to deal with these difficulties. They will do so fairly, honestly and objectively. They will do so while preserving their independence. The judges of Israel, regarding judging as a way of life - not just as a job to be done. It is a way of life in which there is no pursuit of material wealth. It is a way of life in which there is no seeking of publicity or public relations. It is a way of life based on spiritual wealth. It is a way of life in which there is an objective and unbiased search for the truth. Not the exercise of force, but reasoning and deliberation. Not power, but meekness. Not might, but compassion. Not "oil", but a "good name". Not the attempt to please everyone, but steadfastly upholding values and principles. Not yielding to or compromising with, pressure groups, but insistence on the fulfillment of the law. Not deciding in accordance with passing whims, but consistently following the underlying conceptions and fundamental values of the Heritage of Israel, Zionism and democracy. True, judging is a way of life that is lived in some seclusion, in which one is cut off from political and social battles and in which there are limitations on one's freedom of expression and reaction, in which there is a considerable measure of isolation and introversion, but it is not a way of life in which one is cut off from society. No wall is to be built between the judge and the society in which he operates. The judge is part of his people. He moves with it. I expressed those ideas in an opinion considering whether extraordinary methods of interrogation may be used on a terrorist in a "ticking bomb" situation: "Deciding these applications has been difficult for us. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. We know its problems and we live its history. We are not in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The fear that our ruling will prevent us from properly dealing with terrorists troubles us. But we are judges. We demand that others act according to the law. This is also the demand that we make of ourselves. When we sit at trial, we stand on trial."