On the Essence of the State of Israel

Ze'ev B. Begin October 8, 2015 0

Ze’ev B. Begin on why the time has come to enshrine the essence of the state of Israel in a basic law

[The home page for Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character can be found here.]

August 17 2015 079A This time, instead of starting with Genesis, let’s start with Exodus. In ancient times, when a person hired a laborer, he took a pledge from him to guarantee his good behavior. The pledge was generally a garment – which sometimes would not be returned at day’s end. Such occurrences are meant to be forestalled by the commandment in Exodus: “If you take your neighbor’s cloak in pledge, you shall return it to him before sunset.” One might ask if there is any evidence that people acted in this way in those far-off days, and a hint can be found in a citizen’s letter to a governor, written in ink on clay and discovered in a small coastal fortress near Ashdod. It was sent to the city’s governor some 2,600 years ago and is on display at the Israel Museum:

My Lord the governor shall hear the word of his servant: your servant was reaping in the granary yard. And your servant reaped, and completed his work, as always before Shabbat. When your servant finished his reaping as always, Yeshayahu ben Shovai came and took your servant’s garment. Although I completed my reaping days ago, he took your servant’s garment. And all my brothers will respond to me, those who reaped with me in the heat of the sun, my brothers will say Amen  –  I am blameless. And now please return my garment, and I will ask the Governor to return the garment of his servant, and you shall have mercy on  me, and your servant’s garment shall be returned, and I shall not be dismayed.

Thus, 2,600 years ago, here in Eretz Israel, a reaper demanded, in Hebrew, the return of his garment in accordance with accepted practice. But, as with many of the Torah’s  edicts, the explicit obligation lies with the strong one, while the right of the weaker party is merely hinted at. Another 2,300 years would elapse before an explicit, crystallized and clear expression of the innate rights of man came to be formulated – that found in the United States Declaration of Independence (1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In this statement, as well as in the French Declaration of the Rights of Man and of the Citizen of 1789, according to which “the purpose of all political association is the preservation of the natural and imprescriptible rights of man,” the basic assumption is that human rights precede the state; that governments are formed in order to uphold them; and that it is the government’s duty to secure these innate rights in practice.

These straightforward concepts of human-rights are not self-evident in our country. A few years ago I gave a talk to third-year students in the political science department at one of our universities, on the issue of Bedouin in the Negev. By way of instruction I presented a picture of a baby and asked: “What was this baby born with?” I got a few responses such as “eyes,” “a heart,” “a brain,” but only one student  gave the answer I was looking for: “He was born with rights.”

I am a Jew from Eretz Israel feeling that I identify with my people both in time and space: with all my brethren wherever they may be, and with my forefathers and the tradition they bequeathed to us. As such, I also bear responsibility toward the future of my people.  And this is my approach: after 1,900 years of exile and subjugation, it is a wonderful gift to be a part of the Jewish majority in the State of Israel – the Jewish people’s one and only homeland, here in Eretz Israel.

I bear responsibility toward the future of my people

Yet the existence of this Jewish majority in our land also gives rise to a duty – that of the majority to reach out to the minority and, constantly and consistently, whatever the obstacles, to work for the equal rights of all Israeli citizens. Therefore, the character of our state comprises two complementary elements: it is at once the nation state of the Jewish people with equal rights to all its citizens.

When I say this, I am not closing my eyes to political platforms, proposed by some Arab leaders in Israel, that seek to fundamentally alter the character of the state of the Jews, or to viewpoints holding that Israel was conceived in sin and born in evil. I am not ignoring  plans designed to transform Israel from being the nation state of the Jewish people to “a state of all its  nationals,” that is, to empty it of its deep historical meaning and thereby to deny its raison d’être. But none of these exempt us–members of the Jewish majority–from the perpetual effort to improve the situation, to constantly and vigorously strive to realize the noble principle of equal rights for all Israeli citizens. In doing so, we are not acting generously, but rather perform our duty.

In the spirit of the foregoing, I wrote in the report that I submitted to the Cabinet in early 2013, on Regulating the Status of Bedouin Settlement in the Negev: “The implementation of the principles of social justice to Bedouin children in the Negev and to their families is the obligation of the state which must, within a few years, advance a reasonable solution that will help them exploit their talents and realize their natural right to the pursuit of happiness just like any other child in Israel.” The Cabinet resolved to adopt that report.

In those ancient times, the anonymous reaper demanded justice of the city’s governor. But if official functionaries are the ones causing injustice–even unwittingly–who will hear his grievance? True, the Knesset represents the people –the sovereign; accordingly, the government, relying on a Knesset majority, is supposed to represent the sovereign’s will. Yet some see this as if it allows the government to do as it pleases, while the real question is: Does a majority, through its representatives in the Knesset and the government, have the right to deprive an individual of his basic rights? Four years ago, while serving as a member of cabinet, I wrote that an unconstrained majority may trample one’s rights, and that if the majority fails to understand that it must restrain itself, then the existing mechanisms that can impose such restraint must be safeguarded and reinforced.

You shall have the same rule for the sojourner and for the native

In Psalms it is written: “But the Lord sits enthroned forever; he has established his throne for justice, and he judges the world with righteousness; he judges the peoples with uprightness. The Lord is a stronghold for the oppressed, a stronghold in times of trouble.” That is to say, a fortress for the disadvantaged, the downtrodden. Sitting as the High Court of Justice, Israel’s Supreme Court is a stronghold for the oppressed whose task is to uphold the natural rights of the individual and of minority groups, and to protect them where needed from the arbitrariness of the  majority and its representatives in the government and the Knesset. Therefore, even if it errs, and I have sometimes thought that its rulings were in error, the existence of the High Court of Justice as a living and active organ and the implementation of its rulings by the authorities is the real test of liberty in our country. During its years of communist dictatorship the Soviet Union had a constitution – but could one appeal against the government and hope to win? Accordingly, paraphrasing on our sages old saying, one can say that, were it not for the fear of the Supreme Court, a man would swallow his neighbor alive. We must protect the Court and prevent any impairment of its ability to fulfill its important role, so that we may follow the verse in Leviticus: “You shall have the same rule for the sojourner and for the native.”

The essence of the State of Israel needs to be explicitly enshrined in law. Four hundred years ago, in France, Cardinal Richelieu, said: “if it is self-evident – write it down.” To this I would add: and if it is not self-evident, all the more so – in particular it should be written into law. Four years ago, accordingly, I came up with a short formulation that conveys the essence of our state. Recently I tabled a bill in the Knesset (the full text of which is below), affirming that “Israel is the nation state of the Jewish people, based on the foundations of freedom, justice and peace as envisioned by the prophets of Israel, and upholds equal rights for all its citizens.” Together, the two principles conveyed in this sentence make a whole. They are both essential–not one without the other–and both are absent from our law books. The time has come for their legislation.

A version of the article above appeared in Hebrew in Israel Hayom, July 10 2015, based on a speech delivered at the University of Haifa’s Faculty of Law, June 25, 2015.

The complete text of Ze’ev B. Begin’s proposed basic law submitted to the Knesset is below in English translation. 

The 20th Knesset

Initiator: Member of Knesset

Ze’ev Binyamin Begin

P/20/1587

Proposed Basic Law: The State of Israel

  1. Essence of the State

Israel is the nation-state of the Jewish people, based on the foundations of freedom, justice and peace as envisioned by the prophets of Israel, and upholds equal rights for all its citizens.

  1. Government of the State of Israel

The State of Israel is a democracy.

  1. Symbols of the State of Israel

a. The state flag is white with blue stripes near the edges and a blue Star of David in the center.

b. The state symbol is a seven-branched menorah with olive leaves on both sides and the word “Israel” beneath it.

c. The state anthem is Hatikvah.

  1. Immutability

This law shall not be amended, except by the passage of basic law by a majority of eighty Knesset members.

Explanatory Notes

The purpose of the draft basic law is to enshrine in a basic law the permanence of the very essence of the State of Israel and its main symbols. The first article in this law defining the nature of the State of Israel is based on the Declaration of the Establishment of the State of Israel, in light of Ordinance 1., known as the Independence Scroll, which states, inter alia:

“The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisioned by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.”

A principally similar bill was tabled in the Nineteenth Knesset by Member of Knesset Elazar Stern and a group of Knesset members (P/19/2883).

A principally similar bill was tabled in the Nineteenth Knesset by Member of Knesset Ruth Calderon (P/19/2907).

Presented to the Knesset Speaker and Speaker Deputies

and brought before the Knesset on

June 29, 2015—12 Tammuz, 5775