Chapter II: Some Central Arrangements

In this Chapter, I will provide a schematic sketch of the developments in attempts to balance Jewishness and democracy. I will be looking at developments because one of the important features of the situation is that arrangements and attitudes are not static. Interesting developments can be traced both before the foundation of Israel and in the 53 years that passed since it was founded. At this stage suffice it to say that the picture is complex and mixed. In many ways, Israel is now much more democratic than it was when founded. In many ways, it is also more Jewish. At the same time, both the Jewish-Arab rift and the internal Jewish rift have intensified over the years. Today, their regulation has become much more difficult and challenging than it had been. This fact is both troubling and reassuring: people are much more aware now that these issues need to be addressed and dealt with.

1.      Background

In 1948, in the festive declaration of the Foundation of the State of Israel, Israel was described as a ‘Jewish state’, stressing the long yearning of the Jewish people to its old homeland. In this, the Declaration followed the UN resolution of 1947, specifying that the area of the British mandate would be divided into a Jewish and an Arab state. Since then, many other expressions reflecting the fact that the governing elites saw Israel as a Jewish state were made in laws, judicial opinions, and various official pronouncements. The Declaration itself does not mention the word ‘democracy’, but it does include an explicit obligation to allow all residents participate in Israel’s political life on the basis of full equality. Again, many laws, judicial opinions and official pronouncements celebrated the democratic nature of the state and its implications.

The reference to the two elements in the description of the state was introduced into a law for the first time in 1986, when a law required banning political parties if they denied that Israel was the state of the Jewish Nation; were anti-democratic; or incited to racism. Finally, in the basic laws of 1992, dealing with human rights, and in the Parties Law of the same year, Israel is explicitly defined as a “Jewish and democratic state’.

Despite the high visibility of this dual description of the state, we do not find a systematic discussion of the tension between these two components of the state, or an exploration of the arrangements which may promote their stable combination. To the contrary. Many of the initial decisions about basic structures in the state were made in times of emergency or even outright war. Often, they were based on understandings among the Jewish groups, but involved no negotiation with the Arabs. For these reasons, most of these initial decisions lacked visibility, and were made without any serious discussion, either in the government and the Knesset or in any public forum. Moreover, many of the arrangements adopted were not even based on deliberate and orderly decisions made by the authorized organs after the state was founded. Rather, they reflected continuity with decisions and arrangements made by the Jewish Yishuv prior to the establishment of the state. Many of these decisions simply involved not changing social and legal realities that existed when the state was founded, and these realities were often created without any prior thought or planning.

The absence of a comprehensive and systematic framework of analysis characterizes the way these issues are approached to this very day. Often, dealing with local problems as they emerge is preferred to long-term policy. Frequently, a low-visibility local administrative agreement is preferred to a more comprehensive arrangement of higher visibility. There may be advantages to this attitude. However, it must be remembered that changing an existing reality may be much more difficult than designing a coherent approach when we first seek to regulate an issue. This is why it is important to sketch some of the initial understandings reached when the state was founded.

In part, the low visibility of decisions and arrangements stemmed from the constraints of the time. This was clearly the case in the first years of the state, when initial arrangements had to be made in the midst of a war and mass immigration. Even in quieter times, the government itself and its political leaders often do not have the time and the tranquility required for a systematic and comprehensive examination of central issues. However, politicians did not have to do the work themselves. They could have relied on extensive work done by academics, or to encourage and request the preparation of a data base and a study of alternative scenarios which would have facilitated a more comprehensive approach to decision-making. The problems we can identify in the Israeli mechanisms of decision-making are probably mostly related to regular fallacies in democracies, and are not related to the tensions between democracy and the Jewish nature of the state. But, as we shall see, some of the decisions adopted at the initial stages of the state were made against the background of that tension. They reflect an attempt to avoid explicit declarations and symbolic moves which may have highlighted that tension, and generated friction and even conflict, in both the internal Jewish divide and in that between Jews and Arabs.

One notable example of such a decision, whose implications have been with us since 1948, is the fact that Israel’s law never included a reference to the borders of the state! In terms of Israeli internal law, this has been a very important fact in the debate about the future of the territories occupied in the 1967 war. Israeli law only specifies the territories in which it is deemed to apply. The extension of Israeli law may be done by a mere decision by the government, (as was initially done for unified Jerusalem in 1967) or by a Knesset legislation (as was done for the Golan in 1982). Israel never declared its borders because the issue came up during the 1947-48 war. The territory Israel controlled at the end of the war was different from the one allotted to the Jewish state under UN decision 181, usually in favor of Israel. Israel’s effective borders were only armistice lines. And Israel’s leaders sought to avoid the need to decide what the borders of the state were, in order to circumvent the tricky internal Jewish debate about the relationships between the state of Israel and Eretz Yisrael.

Similarly, Israel has never made a declaration concerning its official language or languages. This is especially surprising in view of the fact that the struggle for the Hebrew language was one of the central aspects of the life of the Jewish community in Palestine. Furthermore, the revival of the language, making it a live language of then people of Israel, is by far one of the most impressive victories of Zionism. One would expect that one of the first declarations of the newly born state, together with establishing a hymn and a flag, would be the declaration of Hebrew as the official language of Israel. Instead, Israel kept the framework of the system inherited from the British mandatory period, with the adaptations required by its ending. During the British Mandate, Palestine had three official languages: English, Arabic and Hebrew. Once the British left, England stopped being an official language, so only Hebrew and Arabic remained, by law, official languages. Despite the legal symmetry between the languages, Hebrew is clearly the hegemonic language of the country, and anyone not fluent in it will find it very hard to integrate into its social, economic and political life. In the Arab school system within Israel, however, the teaching is done in Arabic, while the students are required to learn Hebrew as well as English. [1]

Israel’s attitude to the regulation of its flag, hymn and symbol is also of interest in this context. In fact, all three are deeply Jewish, carrying a strong national significance. In 1949, very early on, Israel enacted the Flag and Symbol Act, establishing a duty to show respect to these symbols of the state and regulating their use. The Act refers to the flag and to the symbol, but it does not determine their form or content. The decision as to the form and colors of the flag and symbols has been made by a decision of the government. In other words, the level of this charged arrangement is rather low. The flag and symbol of the state can be, in principle, changed by the government, without any public debate or even notice.[2]

An interesting decision was made, even before the Declaration of the Foundation of the State, concerning the name of the new state. Not many recall that this was a hotly controversial subject. Two proposals that seemed quite natural, and were rejected, were Zion and Judea (Yehudah). Both were rejected for sensitivities in the Jewish-Arab divide and within the Jewish community itself. The reasons had to do with the implication of the name of the state to the way its citizens would be called. Both ‘Zionists’ and ‘Jews’ would have been unacceptable to both non-Jews and to some segments of the Jewish population. The name ‘Israel’ was chosen because it reflected Jewish national particularism, but at the same time permitted a ‘semantic space’ between Israeli citizenship on the one hand, and membership in the Jewish people or in the Zionist movement on the other. Calling all citizens of the new states ‘Jews’ would have made the ‘Who is a Jew’ question even harder than it turned out to be. Calling all of them ‘Zionists’ would have made the symbolic plight of the ultra religious Jews (the hareidim) almost unbearable.

Both decisions may have been impossible to make today. If we had faced them now, both Jews and non-Jews may have had a hard time with the arrangements that were adopted. Arabs would have found it extremely hard to accept that their state would be given a particularistic name, and that its primary symbols would all be ones that exclude them. Zionist Jews would find the low visibility of the flag and the symbol unacceptable. They probably would have demanded an explicit declaration and entrenchment of them in a law or even in the constitution. A-Zionist or anti-Zionist Jews might have joined the Arabs in objecting to the Jewishness of state symbols.[3]

In all of these debates, the difference between the centrality and visibility of the internal Jewish divide and that of the Jewish-Arab divide is very clear. The Arab voice is sounded by Jews. Arabs themselves are absent from all the deliberations leading to the initial decisions. Within the internal Jewish divide, on the other hand, the understanding is that such major decisions should be made by consensus and not by majority vote. A clear example of this difference is the decision not to enact a constitution (see below). The debate shows that a main reason for not enacting a constitution was the internal Jewish debate on whether the Jewishness of the state is religious or national-cultural, and the wish to avoid the cultural war that might have resulted had the constitution voted for one or the other. In distinction, the question of the status of the Arabs as citizens in a Jewish state was not on the minds of most of the legislators.

Within the Jewish community, the explicit attitude was an attempt to avoid confrontation, and to prefer ambiguous formulations, which could enlist the support of the main groups. The idea was that the laws should seek formulations that all could live with, and that low visibility implementation could be used to deal with the controversies which may develop. A good illustration of this technique is the Law of Return, which was enacted unanimously in 1950, giving every Jew the right to immigrate to Israel and become its citizen. ‘Jew’ was not defined in the law deliberately, so as not to open up the controversy concerning who is a Jew. Consequently, the law was passed in an extremely festive atmosphere, without an hint to the debates concerning Jewishness and conversion which now threaten the fabric of social and political life in Israel (see below), and throw a heavy shadow on the relationships between Israel and the non-Orthodox Jewish communities abroad. Similarly, the issue of religious pluralism within Judaism was not raised, despite the fact that it was a known issue among Jewish communities in the world. All Jewish legislators made this tacit agreement not to open up the controversy because the Law of Return was seen by all as representing the essence of Israel as a Jewish state. Ben-Gurion, when presenting the law to the Knesset, even declared that the Law of Return was not a law granting Jews a right. Rather, it was a law recognizing their right and implementing it.

We saw that a tendency to avoid the tensions and the conflicts is apparent for both major divides. Yet this same tendency was generated by a very different background and political reality. In the internal Jewish divide, the tendency to cover-up the differences stemmed from a mutual recognition of the depth of the controversy, and a common decision that despite the controversy, joint action was crucial. Therefore all groups decided to try and strengthen the elements shared by all, while designing decision-making mechanisms that will guarantee the essential interests of the different groups. The decision is made by representative of all the major groups, who identify both a shared interest and important conflicts of interests. The situation is very different when decisions were made concerning the Jewish-Arab divide. The decisions are made by the leaders of the Jewish community. The Jewish majority seems to ignore completely the problematic nature of the existence of the Arab minority within the Jewish state. The decisions seem to be exclusively concerned with the interests of the Jewish majority in consolidating its hold over the territory on which Israel was established, and coping with the security threat posed by the Arab minority.

An illustrative issue is that of the Citizenship Act of 1953. This law deals with methods of acquiring Israeli citizenship other than return. Due to the special phrasing of the law of Return, under which Jews residing in Israel when it was established nonetheless became citizens by return, the Citizenship Act dealt with all naturalization of non-Jews (this situation was changed when the Law of Return was amended in 1970. See below). The law grants Israeli citizenship to those whose domicile was in Israel, and specifies a very complex process of naturalization which is subject to the discretion of the Minister of Interior. However, domicile was not determined by a substantive test of permanent residence. Instead, the test of domicile for purposes of citizenship was presence in the country in the day in which the census was taken. Many Israeli Arabs, who were absent from Israel on that day, lived in Israel for years without citizenship (the law corrected this anomaly in 1980). In addition, for almost twenty years after the establishment of the state (until 1966), most of the Arab rural population lived under military rule, with severe limitations on their freedom of movement, employment and association. [4] Finally, in the first years of the state Israel consolidated its control over the main resources, such as land and water. Land laws were interpreted in a way that permitted the transfer of more than 90% of the land to the ownership and administration of the state, which regulates their use through The Israel Land Administration Authority. Until very recently, there was no Arab representation in the ILAA bodies, while the Jewish Agency and the Israel Permanent Fund were heavily represented despite the fact that they are not state bodies.

This is the background against which I want to review some central issues in Israel’s public life. My purpose is to look more closely at the arrangements we have inherited and developed in the areas of tension and conflict between Jewishness and democracy in Israel. I also want to examine the developments in these arrangements, and the decision-making mechanisms used to make the relevant decisions. This is, of course, a sketchy and incomplete analysis. My choice of issues is dictated primarily by the arrangements, which I deem central to the implementation, in Israel, of the balance between democracy and Jewishness.

2.                  The Right of Political Participation

I mentioned in Chapter 1 that even the formal conception of democracy, despite its ‘thinness’, has some important substantive implications. One such paradigmatic implication is respect of the right to political participation. Political participation includes, first and foremost, the right to vote and the right to be elected. In this sense, Israel was a democracy from its inception. From the very start, all its citizens – irrespective of national or religious affiliation – were allowed to vote and to be elected.

This legal inclusiveness, however, did not reflect significant political participation of the Arab Sector. [5] In the early years, the Knesset did not have a party that gave systematic expression to the national aspirations of the Arab citizens of Israel, and to the alienation they felt when they were forced to live in the Jewish state. The Arabs voted mainly for the Zionist parties, through processes of ‘deals’ and cooptation. At times, they voted for sham Arab parties, which were really linked with the Zionist parties. As we saw, the provisions of the Citizenship Act 1953 meant that many Arabs who lived in Israel were not citizens, and thus not entitled to vote. The limitations on freedom of movement and association imposed by the Military Rule regime contributed to the weakness of real political participation by the Arabs. It was further strengthened by the fact that many of the local Arab elites fled Israel, leaving the Arab population in Israel shattered and demoralized. The early years saw practical limitation on the political freedoms of Jews as well: Social services were usually provided by the parties, and they claimed a proportional ratio of the new immigrants that came into Israel. To complete the picture we should note that from the very beginning Israel had parties whose programme included the establishment of a ‘torah state’ in Israel.[6] Finally, Israel had a ‘classic’ communist party, with international commitments and strong affiliations with the USSR and its leaders.

This picture of political participation started to change after the first decade. Ben-Gurion’s commitment to destroy factionalism meant that the hold of the parties on the choices of those dependent on them weakened. Many new immigrants started to desert the ruling labour party, seen as arrogant and snobbish, and found a political home with the Herut opposition. Israeli Arabs started to organize after the 1948 devastation. In the early sixties, even before the end of the Military Rule, the first Arab national movement – el Ard - started its activities. The leaders of el-Ard claimed that they were only interested in equality to the Arabs within Israel, and that they did not challenge the existence of Israel or even its Jewish identity. Despite these clarifications, the neighboring Arab states supported the new movement, and called on the Arabs in Israel to support it. El-Ard’s request to register as a voluntary association was denied by the registrar, and the decision was upheld by the High Court of Justice (HCJ).[7] In addition, the movement was declared an illegal association under the Mandatory Defence Regulations.

In the 1965 Knesset elections, El-Ard sought to present its candidacy. The law regulating these elections specified some formal criteria that any new party should meet, and El-Ard met them. It did not specify any substantive constraints, permitting the elections committee to ban a party because of the context of its political positions. Nonetheless, the central elections committee (a statutory body composed of representatives of the parties, and headed by a Supreme Court Judge) decided not to allow the party to run. The committee was then headed by judge Moshe Landau, later the President of the Supreme Court. El-Ard challenged that decision before the HCJ, which upheld the decision in a 2:1 opinion. The majority saw El-Ard as a threat to Israel. President Agranat suggests that the threat is to the Jewish character of the state, while judge Sussman (who would also be a president of the court)

Indicated that this was a case of self-defence analogous to that required in the Weimar republic, or even a realm threat to the very existence of the state. The dissent (by judge Haim Cohn) reasoned that, in the absence of an explicit law, there is no power to ban a political party on the basis of its platform.[8]

It is quite possible that in 1965, had the court decided differently, the Knesset would have amended the law to include substantive reasons for banning parties. It is quite possible that El-Ard would not have passed the threshold rate for elections, and the Knesset would have preferred to leave the legal situation unchanged. Even if El-Ard would have won one or more Knesset seats, it is quite possible that the political reaction would have depended on the way the party operated. Be this as it may, it is quite clear the Knesset could live with the court’s decision, and accepted the result that an Arab national party was not allowed to participate directly in the political game in the Jewish state. Criticism of the decision and the result in the press was almost non-existent. The Yardor decision did not directly limit the right of Arab citizens of Israel to vote. But it did mean that they could not vote for an Arab national party. It also meant that those who wanted to raise an Arab national voice could not run explicitly and candidly under their real political platform.

Despite the fact that El-Ard was banned, the national Arab voice started to be heard in the Knesset. This was achieved by re-defining the message of the existing communist party, since only new parties were subject to the challenge.[9] The subject of the eligibility of political parties was not examined on its merits again in the court for 20 years.[10]

In the 1984 Knesset elections the central elections committee banned two new parties:

Kahane’s Kach, and the national Arab Progressive List for Peace (PLP). The HCJ overruled both decisions, and both parties won Knesset seats. The PLP was a Jewish-Arab party whose explicit platform was complete civil equality to Arabs in Israel. Nonetheless, among the leaders of the party were individuals who clearly advocated the abolition of the Jewish character of the state and of the Law of Return. Kahane’s Kach party explicitly advocated that Arabs should not be granted equal rights in Israel, and that Israel should be made a halakhic state. In fact, the arguments against equal rights for the Arabs were based on an interpretation of Jewish law itself.

The political system did not respond immediately. For some time, it seemed to accept the fact that the two parties became legitimate players in Israel’s political system. This willingness started to change when Kahane exhibited a very blatant and provocative style of paliamentary activity. Kahane did not cooperate with the old attitude that preferred that the deep tensions between Jewishness and democracy be muted and minimized. His explicit purpose was to highlight them, and to show conclusively that Israel could not be both Jewish and democratic, so it should give its Jewishness preference. It seems that this message seemed too threatening and unacceptable to large parts of the central political establishment in Israel[11]. Consequently, the election law was amended. First, substantive criteria for eligibility were added: Parties which denied Israel as the home of the Jewish people, or that were racist or anti-democratic could be banned. In addition, old parties as well as new parties could now be challenged under the law. Finally, the new law specified that decisions upholding a party could also be appealed, and not just decisions banning it.

In the 1988 elections, the central elections committee had no difficulty banning Kach. The committee confirmed the PLP by the single vote of the chair of the committee. The court upheld both decisions, but significant differences between the opinions are noteworthy.

In a very short judgment, the banning of Kach was unanimously upheld. The Court simply stated that the party was anti-democratic since its platform contained the idea that non-Jews should be deprived of their political rights. The Court held that a blatant incompatibility between the platform of a party and the law was sufficient for banning it, and there is no need to prove that the party had reasonable chances of materializing its goals. For our purposes here it is important to note that Kahane argued that the law itself contained a logical inconsistency. A state cannot be both Jewish and democratic. Hence the Court could not ban his party simply because it was trying to implement policies necessary to ensure the Jewish nature of the state. He further claimed that the legislation itself was invalid because it was inconsistent with the entrenched requirement that elections be equal. President Shamgar dismissed the latter claim summarily.[12] He insisted, however, that there was no inconsistency between the Jewish and the democratic nature of the state.[13] The opinion of the court in this matter squares well with our approach: Demo9cracy is characterized ‘thinly’, as comprising the recognition of civil and political rights. Even under this thin characterization, however, Kach’s platform is inconsistent with the requirements of democracy due to its denial of political rights to non-Jews. Notably, the opinion does not discuss the relationships between democracy and Kahane’s vision of the Jewish state as a Jewish theocracy.

Concerning the PLP, the issue was, of course, whether the list denied Israel as the home of the Jewish people. The Court upheld the party’s right to participate in the election inn a 3:2 vote.[14] The reasons given by the judges are important for our concerns. Two of the majority judges gave the Jewishness of Israel a minimalistic interpretation (a state with a Jewish majority, connections between the state and the Jewish diasporas, and the justification of Jewish self-determination). Consequently, they tended to analyze then position of the spokesmen for the PLP charitably: Their declaration of support to the principle of ‘Two States for Two Nations’ (i.e. their willingness not to demand that Israel be seen as a bi-national state, or that its Jewish affiliation will be privatized) was seen as adequate. This attitude by the majority thus permitted the avoidance of a detailed analysis of the sense in which Israel is deemed Jewish by the statute.

The dissenting judges did just that. Judge Menhaem Elon elaborated in great detail the centrality of the Law of Return and the idea of Jewish return to the Jewishness of Israel. Judge Dov Levin stated that a platform demanding full equality between Jews and Arabs was in itself inconsistent with the Jewishness of Israel. This is because such full equality requires recognition of the equal status of the relationships between Jews in Israel and the Jewish diaspora, and those of Arabs in Israel and their fellow-Palestinians abroad. For our purposes it is important to note that even a few of the majority judges stated that had the PLP explicitly vowed to abolish the Jewish nature of Israel, even if it committed to try and do so only in peaceful and non-violent ways, the party would have to be banned under the statute. In other words, a large majority of the judges sitting in the case agreed that the statute required the exclusion of a party committed to changing the Jewish nature of the state within the constraints of democracy.

Section 7a of the Basic Law: The Knesset still exists as part of Israeli law. In 1992, the political culture of Israel was changed by the Parties Act, which states that only a registered party can take part in the elections. One of the conditions for registration under the law is that the party’s goals or activities do not include, explicitly or impliedly, the denial of Israel as a Jewish and democratic state (section 5(1)). It follows that from now on most of the discussions of the eligibility of parties to participate in elections will take place before the Registrar of Parties (whose decision can be appealed to the Supreme Court).[15]

Before the elections of 1996 (in which Netanyahu was elected PM), two such discussions took place. One related to Ahmad Tibbi’s party (that ended up not running). The Supreme Court held unanimously, in an opinion by judge Cheshin, that the fact that the party was committed to make Israel ‘the state of all its citizens’ did not prevent it from running. All democracies, said the court, are in an important sense the states of all their citizens. This commitment, in itself, did not deny that Israel was, in addition, a Jewish state. The court was more concerned with allegations that Tibbi served as personal advisor to Yassir Arafat, but was willing to accept Tibi’s statement that these ties would stop once the party participated in the elections.[16] The second judicial discussion related to the registration of a radical national-religious party called Yemin Israel. The party stated that its goal was the establishment in Israel of a Jewish religious state, and advocated some harsh measures against Arabs, and the challengers argued that this meant the party was undemocratic. The registrar accepted the party’s application, arguing that the idea of a ‘Halakhic state’ was quite vague, and it was possible to interpret it as consistent with democracy if it amounted to wishing to adopt arrangement inspired by Jewish law. The Supreme Court, in an opinion by President Barak, upheld the Registrar’s decision. Barak accepted the idea that some wishes to have a torah state could be consistent with democracy. He nonetheless added, in an obiter, that had the party been explicitly committed to a Jewish theocracy, that might have justified its exclusion, based on the doctrine of the ‘Democracy in Self-Defence’.[17] This statement generated a heated and critical response from religious leaders.[18]

Before the 1999 elections there was an additional challenge of Balad, a national Arab party headed by MK Azmi Bshara. Again, the challenger argued that the party’s platform is inconsistent with the Jewish nature of the state. Again, the court rejected the plea. However, the court bases its conclusions on the weakness of evidence connecting the party to the denial of the Jewish nature of the state. (check!)

The collapse of the political process between Israel and the Palestinians in the wake of the second

Camp David talks in summer 2000, the second Palestinian uprising, and the unfortunate violent demonstrations in the Arab sector of Israel in October 2000 leaving 12 dead from police fire, made relations between Jews and Arabs in Israel much more tense. Some Arabs MKs made public statements which were interpreted by some as support for the armed struggle of Palestinians and the Hizbollah against Israel. In November 2001, the Knesset has voted, for the first time in its history, to suspend the Parliamentary immunity of MK Azmi Bishara to allow the AG to prosecute him for support of a terrorist organization. At the same time, Bills are considered that may permit the exclusion of parties and of candidates who support armed struggle against Israel. It seems that this area of the limits of political participation is undergoing now a very serious modification. At this stage, it is too early to say how these matters may develop. I’ll return below to the normative aspects of these matters.

3.                  Religion, Nation and State: Jewish Identity

There is no doubt that the focus of the tensions within the inter-Jewish rift between Jewishness and the democratic nature of the state is based on the relationships between the state and Judaism – as both a religion and as a culture and nation. As we saw, the tensions between Jewishness and democracy7 within the Jewish-Arab rift are also connected to the way the state envisions, and can envision, Palestinian nationality and its claims. I noted above the prime importance of resisting the differences in visibility and centrality of the two concerns. Nonetheless, in this chapter I will concentrate on the arrangements concerning the inter-Jewish tensions. I will add a short discussion at the end relating to non-Jewish religious and national affiliations in Israel.

The reason for this choice is that, until very recently, the picture of both the arrangements and the decision-making processes concerning the Arab sector was more or less clear and stable. Their examination was not central to the stability of the social and political regime of Israel. The inter-Jewish tensions, on the other hand, were quite volatile, and have persistent and pervasive effects on Israel’s political reality. Furthermore, the attitudes of Israeli society and its major institutions to these tensions have undergone important changes and developments.

On the face of it, the internal Jewish tensions include a large number of different issues, including personal status, kashrut, burial arrangements, Sabbath, Return, pathology, education and archeological activity. In fact, all these apparently disparate issues are linked by the great debate about the proper and desirable relationships between the state and the Jewish identities and aspirations of its population.

It should therefore come as no surprise that one of the most central and charged issues is that of ‘Who is a Jew’ and, in particular, who should have the authority to decide who is a member of the Jewish collective. Answers to questions of identity – be it personal identity or collective one – may well be rather vague and allow quite a lot of ambiguity. We all learn to leave with that. Usually, it is neither necessary nor possible to dispel this ambiguity. However, when one’s identity is necessary for the application of some rule, especially rules regulating the use of power by state organs, we need operational criteria which will enable us to make binding and authoritative judgements about a person’s identity or affiliation. This is what happened in Israel. We saw that the Law of Return declared that ‘Every Jew has the Right to Return to His Homeland’. On the face of it, the law presupposed an ability to determine, for each and every candidate for immigration under the law, the candidate’s Jewishness. In fact, at the early stages, there was a lot of flexibility, which allowed an avoidance of debates on this issue. People who saw themselves as Jews, especially if they had been persecuted as Jews, were allowed to immigrate under the law of Return. In matters of personal status, the law was applied by the rabbinical courts, which used varying degrees of strictness. The least significant context in which a determination of Jewishness was necessary was the Residents Registration Act, which required specification of both ‘religion’ and ‘nationality’. The purpose of this law is primarily statistical, and the registration is not binding in contexts of either immigration or personal status.

Historically, the determination of Jewishness in the various contexts depended primarily on the identity and ideology of those in charge. At least in the early years of the state, these matters were considered internal matters of the relevant ministries and institutions. In those early years, the Ministry of Interior was controlled by a liberal-secular party, and the guidelines for registrations of Jewishness ( and for return) were, in consequence, quite liberal. This flexibility ended in 1958, in the wake of a serious coalitionary crisis over the registration of children of Jewish fathers and non-Jewish mothers. The determination of Jewishness for marriage and divorce, on the other hand, was allocated to the exclusive jurisdiction of the rabbinical courts under the Rabbinical Courts Act of 1953. Occasionally, a person who was considered a Jew by all, who lived among Jews and like Jews, turned out not to be Jewish under Jewish law. The attitude of the rabbinical courts varied. At times, they required conversion. At others, they cooperated and treated the person as a Jew (or disregarded the fact that some were, presumably, mamzerim). Similarly, responsibility for burial arrangements in the cities was given to religious burial groups. Usually, the local rabbis and the hevrot kadisha found ways to solve the practical problems that emerged, so that those who lived among Jews and were considered Jews despite the fact they were not Jewish under Jewish law could be buried decently. These personal problems were usually solved without public discussion and awareness, and away from the courts. However, the mechanisms that permitted and facilitated such low-visibility treatment started to fail. More and more often, people were not just interested in the decent resolution of a pressing personal problem. They were interested in the symbolic significance of such decisions.

The first dramatic case came up in 1962, when Father Daniel, who was born a Jew and converted to Christianity, wanted to settle in Haifa. Israel had no objection to that wish, and was quite willing to grant him citizenship, but Father Daniel insisted that he allowed to Israel under the Law of Return, and that he be recognized as a Jew despite his conversion and his lifestyle. The Supreme Court upheld the position of the state. The majority judges stated that even if under Jewish law there was some support for the view that a person born a Jew is always a Jew, the Law of return is a secular law, and its goal is not religious. ‘A Jew’ in this law should not be interpreted according to religious law. A Jew who converted to Christianity is not eligible for immigration under the Law of return.[19]

Once the court started being involved in such matters, it did not take long for the next case to come up. Benjamin Shalit, a Jewish officer in the IDF, who was married to an agnostic woman, sought to register their children as Jews in their nationality (the parents did not want to register their children as members of any religion). We need some background and context to understand the significance of this case. The days were just after the 1967 war. The guidelines of registration were, that no one can be registered as a Jew in their nationality if they are not also Jewish in their religion.

These guidelines were the result of a governmental crisis that took place in 1958. At that time the Minister of Interior was a secular man, who instructed his staff to regist