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Israel Studies 3.1 (1998) 195-210

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The Declaration of Independence as a Basic Document of the State of Israel

Elyakim Rubinstein

MY TOPIC IS THE DECLARATION of Independence as a basic document of the State of Israel. The subject is timely now, more than ever, to anyone interested in Israeli public law, some of its principles, its different facets, and its interpretation. Legislating the Declaration's principles into sections of the Basic Laws has elevated them to constitutional status. This is a major achievement. The Declaration of Independence was the product of the collective spirit of legal experts and state officials, but its phrasing in the final version was the language of a statesman—to be precise, of David Ben-Gurion.

The debate over the wording as described by Zeev Sharef, who became Government Secretary, 1 was mainly about semantics and not substance. On one central issue, demarcating the state's borders, Ben-Gurion decided against the opinion of Peretz Bernstein and Felix Rosenblitt (Pinchas Rosen, the future Justice Minister) on practical grounds. Ben-Gurion observed that the United States also did not have defined borders in its early history, and that, in any case, the Arab countries refused to recognize any of the borders that were being offered at the time. Ben-Gurion's influence of the phrasing of the Declaration caused it to be less "legalistic" than that suggested by the legal team of Zvi Berenson, Uri (Hinsheimer) Yadin, A. Beham, and Zvi Eli Baker, Zalman Rubashow (Shazar), and later, Moshe Shertok (Sharett). For example, he omitted the over-used expression "such being the case" in the introduction to legal documents. However, the principles of justice and peace appear in all the drafts preceding the Declaration's final version. 2 It seems probable that the founders of the state and the designers of the document did not exactly know if or how the Declaration of Independence would become part of the state's legal foundation, and it is also doubtful whether they even considered the matter. However, [End Page 195] they were very concerned over the young state's international obligations, based on the United Nations resolution of 29 November 1947, and they were careful to include the generally accepted formula, "our natural and historical right," as a major justification for the Jewish state.

It should be recalled that the National Council, an "executive organ" that served as a link between the Jewish Agency Executive and the National Committee [HaVa'ad HaLeumi], was transformed by the Declaration into the Provisional Government Council and became, in effect, the Provisional Government. This was the way both the Knesset and the first Government of the Jewish State evolved in practice. The term, "a Jewish State," has now been changed; two sections of the two "Basic Laws" (Section 1A in Basic Law: Human Dignity and Liberty, and Section 2 in Basic Law: Freedom of Occupation) refer to "the values of the State of Israel as a Jewish and a democratic state" [my emphasis - E.R.]. This is a legal development of major historical and moral significance. 3

Legal experts were called in to address the question: From what power-base did the People's Council derive its legal authority to announce the establishment of the state? I am not convinced that this question has any historical importance, excluding its being interesting in terms of the theoretics of pure law. On the legal level, however, it seems that the People's Council created a new executive organ by declaring itself a Provisional Government Council, in which case it might be said that it invented itself. However, I will touch only briefly on this subject by saying that, even then, several scholars were of the opinion that the announcement of the establishment of the State of Israel derived its power and effectiveness from the act itself by those making the declaration. According to the strictly formalistic scholar Professor Benjamin Akzin, 4 those who questioned the authority of political independence even at the moment of its announcement that Sabbath evening in...


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