Transformative Justice: Israeli Identity on Trial

Notes

Notes Introduction 1. Ehud Sprinzak, Brother against Brother (New York: Free Press, 1999), 253–58. Din Rodef is the only case in which the Halakhah allows the killing of a Jew without trial. For elaboration on the Halakhic sources for Din Rodef, see Nachum Racover, A Bibliography of Jewish Law (in Hebrew) (Jerusalem: Jewish Legal Heritage Society, 1990), 2:268. 2. Declaration of the Establishment of the State of Israel 14 May 1948, 1 L.S.I. 3 (1948). Notice that in the Hebrew version equal protection of the law is guaranteed to all its “citizens” and not to all its “inhabitants.” For further elaboration , see chapter 7. 3. Shulamit Aloni (a jurist and former member of the Knesset) maintains that the omission of the term democratic from the declaration was intended to emphasize that by its very nature a Jewish state was also committed to democracy . See Shulamit Aloni, “Basic Law: Human Dignity and Liberty” (in Hebrew), Teoria u-Bikoret 12–13 (1999): 367–75. The process of drafting the declaration reveals, however, that there were some strategic reasons for this omission , in particular, the attempt to avoid the legal implications of using the broad term democracy, specifying instead the obligations that the State of Israel undertook . For elaboration on the composition of the declaration and its various drafts, see Yoram Shachar, “The Early Drafts of the Declaration of Independence of the State of Israel,” Tel Aviv University Law Review 26 (2) (2002): 523–600. It should be borne in mind that the Declaration of Independence emphasized the state’s Israeli-secular, rather than Jewish-religious, character. The term Jewish state referred to the 1947 United Nations’ partition resolution to establish two states: one Jewish and one Arab. See Orit Kamir, “The Declaration Has Two Faces: The Interesting Story of the ‘Zionist Declaration of Independence ’ and the ‘Democratic Declaration of Independence’” (in Hebrew), Tel Aviv University Law Review 23 (2000): 473–538. 4. Berenson’s proposal is available at the State Archive, file c/20/5664. See also Shachar, “Early Drafts.” In addition to the omission of the word democratic, the definition of the state’s final borders was also omitted due to the unstable situation at the time. The final version of the declaration also promised that civil and political rights would be guaranteed by a constitution to be drafted by elected members of a Constituent Assembly. Nonetheless, the Constituent 259 Assembly elected immediately afterward failed to produce a constitution. It transformed itself into a parliamentary legislative body (the Knesset), which retained the power to legislate basic laws and to transfer this power to following Knessets until eventually a constitution would be completed. The declaration states that “with effect from the moment of the termination of the Mandate . . . (15 May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adoped by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State” (emphasis added). Indeed, two members of the Constitutional Assembly belonging to the Herut party (Ari Jabotinsky and Hillel Kook) claimed that the decision of the constitutive assembly to transform itself into an ordinary parliament retaining the power to enact a constitution in stages through basic laws (known as the Harrari Resolution ) was equivalent to a political putsch. See Aloni, “Basic Law,” 369. For a short historical overview, see Ruth Gavison, “The Controversy Over Israel’s Bill of Rights,” Israel Yearbook of Human Rights 15 (1985): 113, 115–17. 5. The two basic laws refer to the State of Israel as “Jewish and Democratic ” (section 1a. at Basic Law: Human Dignity and Liberty, 1992, S.H. 150; section 2 at Basic Law: Freedom of Occupation, 1994, S.H. 90). For an overview of the enactment of the basic laws, see Judith Karp, “Basic Law: Human Dignity and Liberty—A Biography of Power Struggles” (in Hebrew), Mishpat UMimshal 1 (2) (1993): 323–84. 6. The most elaborate effort to reconcile the two values was undertaken by the jurist Ruth Gavison in several articles and her book Can Israel Be Both Jewish and Democratic? Tensions and Prospects (in Hebrew) (Tel Aviv: Hakibbutz HaMeuchad , 1999). But the issue has preoccupied a wide range of writers, including Supreme Court justices such as Aharon Barak, Menachem Elon, and Haim Cohn. See Menachem Mautner, Avi Sagi, and Ronen Shamir, eds., Multi-culturalism in a Democratic and Jewish State (in Hebrew...