Israel’s Declaration of Independence: Squaring the Circle
When Theodor Herzl wrote his booklet, which set modern Zionism in motion, he used the catchy German term "der Judenstaat", a word difficult to translate into English. Literally, it means "the Jews' state." The meaning becomes clearer in the context of the booklet itself.
At the time, Herzl was far from convinced that the state should be set up in Palestine. He was mainly thinking about Argentina. But the first version of this blueprint for the future state - and that is what the brochure amounted to - was not concerned with any particular territory. It was an abstract plan for a yet-abstract project.
Perhaps because of this, Herzl did not devote much thought to the place of non-Jews in his Jew-state. In his personal journal he noted that if the state would be set up in South America, it would be necessary to remove any native population living there - but only after they had killed all wild beasts. Later, when it was already taken for granted that the "national home" must be created in Palestine, Herzl wrote a rather naive utopian novel, Altneuland (Old-New-Land). In this description of the future ideal Zionist society, one sole native Arab makes an appearance, in order to laud the wonderful treatment accorded to him in the Jewish commonwealth. One gathers that he is a picturesque but quite negligible part of the new reality.

Substitute for a Constitution

Some 50 years after the Zionist Congress, the Zionist state came into being. Its founding document, the famous Declaration of Independence (officially: "Declaration of the Establishment of the State of Israel," May 14, 1948) has assumed historical dimensions. But in reality it is but a hastily written collection of propaganda clichés, designed to disprove hostile arguments and to assure international recognition for the fait accompli. It says very little about the reality prevailing in the State of Israel, then or today, but it says very much about the state of mind of its founders, when they decided, after some hesitation, to proclaim the state in the middle of a desperate war.
As an instrument of propaganda, tailored according to the requirements of the moment, the Declaration is neither better nor worse than similar documents of other nations, such as the American Declaration of Independence, which consists in great part of polemical attacks on the British king. However, this historical curiosity was soon superseded by the United States Constitution, a far more serious document. Israel has never adopted a constitution, and, by default, the Declaration has to serve as a kind of substitute.
It is easy to make fun of the clichés taken from the arsenal of Zionist stock phrases and assembled in the Declaration. The late professor Yeshayahu Leibowitz used to point out that the phrase "Eretz-Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped..." could only be written by atheists. For religious Jews, the spiritual identity of the Jewish people was shaped for all eternity at Mount Sinai, far from Eretz-Israel. "After being forcibly exiled from their land..." does not correspond with historical fact, as the great majority of Jews were living happily in the Diaspora long before the Second Temple was destroyed by the Romans. "Jews strove in every successive generation to re-establish themselves in their ancient homeland..." is a Zionist myth. For 1,827 years, from the destruction of the temple to the First Zionist Congress, Jews made not the slightest effort to establish a Jewish state in Palestine. Indeed, the Jewish religion expressly forbade a mass immigration to the Holy Land. Only individuals were allowed to come here, to pray and die.
The document contains several untruths and half-truths. For example, when it says that... "the Balfour Declaration... gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its national home," it bends the facts. The Balfour Declaration says that "His Majesty's government view with favor the establishment in Palestine of a national home for the Jewish people...." "In Palestine" rather than turning all of Palestine into a Jewish national home. Also, as we shall presently see, the wording of the UN resolution was falsified in the Declaration.

A 'Jewish State',

But the central phrase of the Declaration is the operational one: "We... hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel."
The two words "Jewish state" have since become a bone of endless contention. What do they mean? What is the difference between a "Jewish state" and Herzl's "Jew-state" or "State of the Jews"? Not to mention the term "State of the Jewish people," which crept nearly imperceptibly into the Israeli codex when the Knesset enacted a curious law saying that anyone "who denies that Israel is the state of the Jewish people" is denied the right to take part in Israeli elections.
Herzl's Judenstaat meant simply that the state, which will be set up by those Jews who want it, will be peopled by Jews. It did not concern the religious character of the state. Herzl, as indeed nearly all the founding fathers of Zionism, was a complete atheist. He stressed that the rabbis must be restricted to the synagogues. Moreover, he was an "assimilated" Jew, meaning a Jew who had embraced European culture and lost contact with Jewish religion and tradition. The state he had in mind was clearly a secular, democratic state as conceived by Central European liberals at the end of the 19th century.
The term "Jewish state," as distinct from "State of the Jews," can mean quite different things. The nationalist-religious, as well as other religious elements in Israel today use it to demand a state governed by religious laws. "Jewish," they insist, has but one meaning, a religious one. A "Jewish state" cannot be "like other states," because it must serve the fulfillment of Jewish religious aspirations.

Exclusivist Tendencies

Nothing could be further removed from the intentions of the Declaration itself. For this we have the testimony of the person who wrote the original draft, and who put those two crucial words "Jewish state" into it: former Supreme Court Judge Zvi Berenson, at the time the legal adviser of the socialist Histadrut (the powerful trade union confederation). As he tells it, the phrase must be understood in a quite different context.
Among other justifications, the Declaration cited the landmark United Nations resolution. This was especially important, because it gave the new state a cloak of legality, which it would have otherwise lacked.
The Declaration quotes the resolution in its typical propagandist way: "On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish state in Eretz-Israel...." This is half (or rather a third) of the truth. As a matter of fact, the UN resolution [181] reads: "Independent Arab and Jewish States and the Special international Regime of the City of Jerusalem... shall come into existence in Palestine...." It is highly significant (and generally overlooked) that the Israeli Declaration of Independence, even at this early stage of the 1948 war, intentionally omitted to mention that the creation of the Jewish state was bound up with the establishment of the Arab state in Palestine, as well as with the creation of a separate regime for Jerusalem. Clearly, by that time, David Ben-Gurion had already decided to prevent both.
Be that as it may, the relevant phrase in the Declaration assumes a different meaning when the preceding words are added: "On the strength of the resolution of the United Nations General Assembly, [we] hereby declare the establishment of a Jewish state in Eretz-Israel, namely the State of Israel." The words "Jewish state" clearly appear here only in relation to the UN resolution. What is meant is: The UN has decided to partition the land between an Arab and a Jewish state, and we hereby set up the Jewish state mentioned, which will be called Israel. Nothing more. The testimony of Mr. Berenson clearly indicates this. He stresses in his testimony that there is absolutely no ideological significance as regards the Jewish state.
If read this way, the seeming contradiction built into the Declaration - between the Jewishness of the state and its democratic character - would seem to disappear.
But words have their own life in the annals of nations. Once the term "Jewish state" was put into the Declaration, it exerted a powerful influence on the development of Israel. It reinforces all the exclusivist tendencies - religious and/or nationalist - existing in Israeli society, providing a ready-made justification for discriminating against non-Jews, specifically Arabs, and even secular Jews.
The Supreme Court, a self-proclaimed guardian of Israeli democracy, has compensated for the lack of a written constitution by basing its "judicial activism" on the "principles of the Declaration of Independence" (which has never been enacted into law). It has valiantly tried to square the circle by insisting that Israel is "a Jewish and a democratic state."

Built-In Discrimination

But what is a "Jewish" state? Early Zionists insisted that the Jews all over the world are a "people" (volk, in German and Yiddish), and that modern, secular nationhood has superseded religion as its unifying factor. Orthodox Jews, whose "Sages of the Tora" cursed the Zionists in the most venomous way, denied this strenuously. It has now been conceded that there can be only a religious definition of this term "Jew." It is now a principle of Israeli law that a Jew is a person who (a) has been born to a Jewish mother (and, therefore, to a Jewish maternal grandmother), or (b) has converted to Judaism in a religious act, and (c) has not adopted any other religion. Thus the secular definition of a Jew has been rejected. (This definition, by the way, goes well beyond religious law, according to which a Jew remains a Jew even when he gets himself baptized. "Israel, even when he sins, remains Israel.")
The official doctrine that Israel is a "Jewish and democratic" state rests on the assumption that "Jews" have only one privilege in Israel - namely, the automatic right to immigrate to Israel, under the 1950 Law of Return, and to become citizens immediately upon arrival. This is based on the words of the Declaration: "The State of Israel will be open to Jewish immigration and for the ingathering of the Exiles," immediately followed by the words: "it will foster the development of the country for the benefit of all its inhabitants... it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, and sex...."
In fact, of course, this is far from reality. All public life in Israel is based on a built-in discrimination against non-Jews, and especially the citizens who are Palestinian Arabs (at present about 19 percent of all citizens). The term "Jew," indeed, does not appear in any law except the Law of Return, but in many regulations there is a provision saying that certain rights, mainly financial and social, accrue only to people "to whom the Law of Return would be applicable," a roundabout way of saying "Jews." There is no pretense in Israel that Arab towns and villages are receiving government handouts anywhere near the ones granted to their Jewish counterparts, or that development plans apply to Arabs. Many rights and privileges are quite openly restricted to Jews by the simple device of turning their administration over to the Jewish Agency, a Zionist body which has official functions in Israel and which excludes, of course, Arabs (often called in polite official language "sons of minorities"). The statutes of the government-run Land Authority officially forbid the sale or lease of "national land" to non-Jews, and this is incorporated into its regulations.
All such clear violations of the Declaration's promise of equality "irrespective of..." are routinely justified by citing the "Jewishness" of the state, also based on the Declaration.
In spite of all the good intentions of the Supreme Court, there exists in reality a clear contradiction between the "Jewish state" and the "democratic state." You can have both day and night, but you can't have them at the same time.

Two Alternative Models

On the other hand, two important decisions made at the very outset do limit the Jewishness of the Jewish state. David Ben-Gurion, an extreme Zionist who believed that no Jew should remain outside Israel, decided that Jews who do not immigrate to Israel will neither receive citizenship, nor take part in elections. This was not self-understood. Nor was it self-understood that Arabs could take part in elections. Only after long (and secret) deliberations was it so decided. (Some cynics believe that the decision was taken for purely partisan reasons. Ben-Gurion's Mapai party held absolute power over the Arabs in Israel, through the machinery of "military government," and Arabs could be easily coerced to vote for the right party. For a long time, their votes were crucial for the hegemony of Mapai.)
How can Israel overcome the basic contradiction built into its founding act? It could, of course, set aside all pretense of equality, as demanded by ultra-nationalists as well as by the ultra-Orthodox. The former want to deprive the Arabs of their right to vote, or to strip them of full citizenship, or even to evict them from the state altogether. The latter want to abolish the laws enacted by the Knesset and to impose Halacha, or religious law, which would automatically deny the equality of "Goyim."
However, if the democratic character of Israel is to be upheld, there exist two possible models: One is to turn Israel into a modern, civil state, like the United States, with total separation between state and religion, as well as between state and nation. Citizens would derive their rights solely from citizenship (which the Americans call nationality), irrespective of ethnic origin, religion, language, race or gender. Indeed, it should be forbidden even to mention these in official documents. The state as such will be neither Jewish nor un-Jewish, but a civil community belonging to all its citizens.
A second model is to acknowledge the fact that citizens belong to different nations and to give these official status, allowing the Palestinian-Arab citizens of Israel (as distinct from the Palestinians in territories at present occupied and in the future State of Palestine) to form national institutions, which would enjoy autonomy in the fields of education, language, culture, etc.
Until such a revolutionary change in the character of the state and its citizens, the contradictions of the Declaration will continue to plague us all.