The theme of the confrontation between religion and the State in Israel1 is now relatively well known, and it is doubtless sufficient to present it through a few reminders of its fundamental data2. One may then dwell rather on the most recent stakes and developments3.

Political Zionism, which appeared at the end of the nineteenth century, claimed for itself a secular character. It situated itself resolutely in the lineage of modern nationalism, which all specialists have always shown could be conceived only through a phenomenon of secularisation of society.

At the moment of the creation of the State, one speaks above all of a State of the Jews4, not of a Jewish State. This is why attention is then focused on the possibility offered to all Jews who so desire to come and settle freely in Israel5 and to acquire Israeli nationality there. Such is the essence of the Law of Return of 1950, followed by the Nationality Law of 1952.

By virtue of the Law of Return (article 1), “every Jew may freely settle in Israel”; likewise, by virtue of the Nationality Law, every person who has immigrated under the Law of Return automatically acquires Israeli nationality. Such were the foundations of the State of the Jews.

That was to wish to reckon without the weight of the Jewish religious tradition, a fundamental component of Jewish being and of Jewish collective consciousness. From the creation of the State of Israel, the question posed itself in striking fashion, even as a compromise formula was being advanced.

The magical formula of the status quo

The Israeli political tradition has long sought to base the compromise formula imagined at the time on a quasi-mythical notion of status quo. The latter had been formulated in a letter from David Ben Gurion, addressed to the leaders of the orthodox party Agudat Israel in June 19476 (that is to say, even before the creation of the State). To ensure the good graces of orthodox circles, the future Prime Minister guaranteed respect for the status quo (that is to say, the solutions in force in Mandate Jewish society) in the three following principal domains: respect for the Shabbat as a day of rest (for the Jews), respect for the rules concerning personal status, respect for the autonomy of the religious educational network.

In fact, this formula has, from that date, returned like a veritable leitmotif of Israeli political life. There is not a single coalition agreement, since the creation of the State, in which it has not figured, whether it be, before 1977, the agreements around the Labour Party or, since 1977, the agreements around the Likud (1977-1992).

The agreement signed between the Likud and three religious parties in August 1981 comprised a total of 83 articles. Article 42 loudly affirmed the maintenance of the status quo, but all the other articles (82 in total) formulated advantages or concessions granted by Mr. Begin to his three religious partners.

It is true that this was an extreme example, as much by the scope of the concessions and advantages granted to the religious parties as by the contrast between these and the essence of the status quo formula7. Nevertheless, it was clear that it was scarcely more than a formula intended to dissimulate the difficulties on the path of coalition agreements.

Toward the end of the 1950s, then at the beginning of the 1960s, there broke out a few major cases—as picturesque as they were spectacular—which were to allow legislation, but above all jurisprudence, to determine some major principles.

Some major cases and their consequences

The problem best known abroad is certainly that of the definition of the Jew. The question “Who is a Jew?” passionately occupied the country’s public opinion for a very long time, until a relatively clear solution was adopted.

Among these cases, one must cite the famous case of Brother Daniel Rufeisen, ruled upon by the Supreme Court in 1962. Born in Poland of Jewish parents, Daniel Rufeisen, who saved many Jews during the war, converted to Catholicism and entered the Carmelite Order. He then settled at the Carmelite monastery in Israel and ended up requesting the benefit of the Law of Return as well as Israeli nationality on this same basis. The minister’s refusal led to a recourse before the Supreme Court, which rejected the request. For the Supreme Court, a converted Jew could not be considered Jewish within the meaning of the Law of Return8.

For this reason, in 1970, after a new case had made headlines9, the legislator adopted a definition that sought to be relatively restrictive, but which, at the same time, contained a singularly liberal measure.

On the one hand, a person is henceforth considered Jewish “who was born of a Jewish mother, or who has converted to Judaism, and who does not belong to another religion”10. On the other hand, the benefit of the Law of Return is henceforth extended to the spouse, to the children, and to the grandchildren of a Jewish person11.

Many other cases could be cited. Here are a few, very briefly:

One will note that the educational question is not at the heart of these debates: the solution found has consisted in establishing a network of secular public schools (kindergartens, primary, secondary) and a second network of religious public schools.

However, even today, depending on circumstances, it may happen that a case comes to stir public opinion. At the moment when these lines are being written (September 1994), the political class is shaken—once again—by the constitutional debate and its various implications.

The constitutional debate and the religious problem

To a very large extent, the principal elements of this debate appear in the article by Justice Aharon Barak. It is appropriate, however, to add a few elements to it that will make it possible better to understand the problematic of the constitutional and religious debate.

The State of Israel passes—together with the United Kingdom—for one of the last States without a true written constitution.15 However, as Aharon Barak shows in his article, the situation is no longer as clear as it was about ten years ago. On the one hand, the Supreme Court has firmly affirmed its power of control on the basis of a few very rare “rigid” provisions contained in the basic laws.16

Then, rather suddenly, from 1992 onward, thanks to two basic laws voted almost surreptitiously17, the constitutional debate has been entirely focused on the question of human rights.

Indeed, until 1992 there existed a set of nine basic laws, bearing on the principal questions generally covered by a constitution18: the absence of provisions on human rights and public liberties appeared only the more clearly. Now, precisely as the Supreme Court was further affirming its power19, the religious parties manifested all the more strongly their opposition to the adoption of supra-legislative principles. Such principles were obviously of a nature to endanger a large part of religious legislation.

We have seen20 how the basic law on professional freedom, owing to its great constitutional rigidity, gave rise to a very bold jurisprudence of the Supreme Court. The Knesset hastened to amend the basic law on professional freedom, so as to allow taking account of the Jewish and democratic values of the State—which, in other words, amounts to authorising the implementation of certain limitations to the exercise of professional freedom resting on motives drawn from “Jewish values.” In this instance, it is indeed religious motives that are involved here21.

A second amendment, which intervened in the course of that same month of March 1994, is—at the moment when these lines are being written—at the centre of a sort of juridico-political tempest. A new article has been added to the basic law on the dignity and freedom of the human person, conceived as follows:

“The fundamental rights of the individual in Israel are based on the recognition of the value of the human person, of the sanctity of life, of freedom. These rights are respected in the spirit of the principles of the Declaration of Independence of the State of Israel.”

In Israeli political reality, these few lines take on an extraordinary significance. To understand the reason for this makes it possible to furnish a key for grasping the reality of the relations between religion and politics22.

The reference to the Declaration of Independence represents a spectacular innovation. Until then, this three-page text, which proclaimed the independence of the State of Israel on May 14, 194823, had not been considered as having any supra-legislative juridical value24.

Now, this text, beyond symbolic historical reminders, as well as the indication of the setting in motion of the constituent process, comprises the setting in place of guiding principles for the new State; it is conceived as follows:

“The State of Israel […] will be founded on freedom, justice, and peace according to the ideal of the prophets of Israel; it will ensure the most complete social and political equality to all its inhabitants, without distinction of religion, race, or sex; it will guarantee freedom of worship, of conscience, of language, of education, and of culture; it will ensure the protection of the holy places of all religions and will be faithful to the principles of the Charter of the United Nations.”

To the extent that these few sentences are destined to acquire a full juridical, supra-legislative, value, one can imagine the use that may be made of them. In effect, it thus harbours a veritable time bomb in the Israeli politico-religious equilibrium, since a large part of religious legislation is thus potentially threatened25.

The religious parties have therefore immediately initiated a campaign aiming to annul this amendment. Failing that, they seek to obtain the “stabilisation” of religious legislation, that is to say, its global protection against any constitutional review. Such is, at any rate, the price they intend to make Mr. Rabin pay for their eventual entry into his government26.

The question that must be posed, by way of conclusion, seems to me to be that of knowing whether there exists a precise correlation between the place of the religious phenomenon in public life (as expressed for instance in legislation) and the short-term political necessities, that is to say, the coalition problems. In other words, one will ask: is it possible to base what, from a French secular perspective, appears as belonging to pure religious coercion, on the sole arithmetic of coalition? It had been admitted for a very long time that no government could be established in Israel without it associating with religious parties27; this datum could suffice in itself to explain the grip of the religious phenomenon. We know today that things are far from being so simple.

Thus there were periods of “grand coalition”28 between the two great blocs (Likud and Labour, which together reached 90 seats out of 120): no one imagined a religious deregulation during that period. The same phenomenon is verified under the Rabin government invested in 1992.

It seems to us, therefore, that one must distinguish between two tendencies: one in the short term, the other in the long term.

Clearly, in the short term—that of the exact measure of electoral force—the “religious power” (or “power of the religious”) can be measured very precisely. Thus, in a coalition where the religious presence is not arithmetically required, this presence, when it intervenes nonetheless, will be obtained at the price of minimal concessions, if not on the basis of respect for what has already been acquired. Conversely, when the contribution of seats is necessary, the concessions may appear impressive.

From the perspective of the long term, things are different. One can, in my view, draw out two axes that are apparently contradictory:

The first axis sees the setting in place of a system that one might qualify as a dual society. An ultra-orthodox society, which is gaining ground in religious circles, and which seems to be in a phase of withdrawal into itself. This phenomenon is all the more interesting in that it is accompanied, at least partially, by a movement of political radicalisation, of engagement in the ultra-nationalist camp. Conversely, secular society cuts itself off more and more from this form of new ghetto that thus appears in Israel.

The second axis may appear in contradiction with some of the hypotheses just put forward. Indeed, one would wish to advance the idea that the majority of the country29, while distancing itself from the most orthodox elements, hardly militates for the introduction of a total secularisation.

The demand for a separation between religion and the State, often formulated, aims above all at a depoliticisation of the clergy, that is to say, of the rabbinate30.

It also targets certain aspects considered as particularly “retrograde”31. Finally, there are scarcely any observers who do not emphasise the appearance of a movement of return to sources—not in the sense of the fundamentalism signalled above, but in that of a search for a Judeo-Hebraic culture finding its roots in the Bible and the Talmud, while at the same time opening up to the modern world.

This approach is not always devoid of ambiguities or contradictions: it nevertheless makes it possible to understand certain astonishing traits of Israeli political life.

  1. Article previously published in the journal Pouvoirs, No. 72, pp. 7-16, 1995. It is one of the articles that best embraces the problematic. Published with the author’s agreement.↩︎

  2. I take the liberty of referring the reader to some of my publications on this subject: Le Caractère juif de l’État d’Israël (The Jewish Character of the State of Israel), Paris, Cujas, 1977; Le Droit israélien (Israeli Law), Paris, PUF, coll. “Que sais-je?”, 1990; as well as to my article “L’inextricable cas d’Israël” (“The Inextricable Case of Israel”) published in the journal Le Genre humain, no. 23, devoted to the theme “Le religieux dans le politique” (“The Religious in the Political”), Paris, Éd. du Seuil, 1991, p. 81.↩︎

  3. This article must obviously be read in parallel with several of the texts in this same issue, in particular those of Judge Aharon Barak and David Kretzmer.↩︎

  4. See my translation of the founding book of political Zionism, L’État des Juifs (The State of the Jews) by Theodor Herzl, with the afterword on Zionism, Paris, La Découverte, 1990: in particular, the discussion of the exact translation of the title of this work, whose original Der Judenstaat indeed signifies a State of the Jews and not, as has often been translated in French or English, The Jewish State: more recently, in France, it has become fashionable, notably in the press, to speak of the “Hebrew State.”↩︎

  5. On a few exceptions to this principle (the reservations), see Le Caractère juif de l’État d’Israël, op. cit., pp. 69-80.↩︎

  6. French text in Le Caractère juif…, op. cit., p. 120.↩︎

  7. See French translations of some agreements in Le Caractère juif…, op. cit., pp. 174-178.↩︎

  8. Idem.↩︎

  9. This is the Shalit case. In this hypothesis, an Israeli Jew, having married a non-Jewish woman abroad, asked to have the children born of this marriage registered as “Jews” from the point of view of ethnico-national belonging (this is one of the registrations required by law, along with religion and nationality: thus one can be of Israeli nationality, Arab ethnicity, and Muslim or Christian religion).↩︎

  10. Many questions remain open: but it has persistently been adjudged that the notion of conversion to Judaism, within the meaning of this law and for its needs, was in no way limited to the so-called “orthodox” conversion, which is extremely difficult to obtain. On the basis of this provision, the “Jews for Jesus” are excluded.↩︎

  11. The idea was to make possible the welcoming, as new immigrants, with all rights, of the spouses, children, and grandchildren of Jews. A premonitory idea if ever there was one: the wave of immigration from the former USSR has enabled Israel to welcome 450,000 people (the country currently has 5,100,000 inhabitants) since 1989, even though it appears established that at least about 30% of these immigrants are not Jewish. During a first wave—from 1969 to 1974—nearly 200,000 immigrants had come from the former USSR.↩︎

  12. The evolution is in itself significant. There exists a law that prohibits the raising of pigs in the country, except in a small zone of Galilee, near Nazareth, where Christian Arabs live (because Muslims have also militated for this prohibition). On the other hand, pork meat and its derivatives are commercialised in most cities of the country, despite prohibitions formulated by municipal by-laws that are not respected (for these by-laws to be possible, it had been necessary to adopt, in 1956, an enabling law authorising the municipalities to act in this matter). The religious circles have renounced having a general law on the prohibition of the commercialisation of pork meat voted.↩︎

  13. In 1987, a magistrate in Jerusalem had acquitted a cinema owner accused of having breached the municipal regulation on the weekly closure of all establishments (cafés, restaurants, theatres, cinemas). The judge had considered the prohibition as excessive (lacking reasonableness in the sense of English law). Despite the intervention of an enabling law in December 1990, local life was deeply transformed: numerous are henceforth the establishments open on the day of Shabbat, in the holy city.↩︎

  14. This polemic is very lively. Let us recall that Israeli military service is very heavy (three years for men plus one month a year up to the age of fifty-one); moreover, the number of these exemptions has not ceased to grow. Conversely, the exemption for religious women (twenty-one months of service) is scarcely contested.↩︎

  15. On these questions, one may refer to my article “Les problèmes constitutionnels de l’État d’Israël. Le contrôle de la constitutionnalité des lois” (“The Constitutional Problems of the State of Israel. The Control of the Constitutionality of Laws”), Revue du droit public et de la science politique, Paris, 1969, pp. 1105-1125.↩︎

  16. In particular article 4 of the basic law on the Knesset which, by stipulating that elections are held by “proportional, national, equal, and secret” ballot, and by protecting this provision, has allowed the development of a true control of the constitutionality of laws (originally only in electoral matters).↩︎

  17. These are the two basic laws on professional freedom and on the dignity and freedom of the human person. These laws were voted in extremis by the legislature emerging from the 1988 elections, at a time when party discipline was no longer functioning. During those same “crazy” weeks of March-April 1992, the Knesset adopted the principle of the election of the Prime Minister by universal suffrage, destined to enter into force at the 1996 elections (unless these were brought forward).↩︎

  18. These basic laws were the following: the Knesset (1958); the lands of Israel (1960); the President of the State (1964); the government (1968: this basic law will be replaced by a new law adopted in 1992 and whose entry into force was deferred); the State budget (1975); the army (1976); Jerusalem: capital of Israel (1980); the judiciary (1984); the State Comptroller (1985).↩︎

  19. See the article by Françoise Dreyfus, p. 61.↩︎

  20. In the article by Aharon Barak, see note on page 20.↩︎

  21. This amendment allowed the adoption of a law restricting the import of frozen meat to kosher meat alone (which, a few weeks earlier, had been adjudged contrary to the first version of the basic law).↩︎

  22. A quasi-anecdotal aspect of this affair resides in the fact that this addition passed unnoticed by the religious parties, even though it was voted in the framework of the amendment to the basic law on professional freedom intended to give them satisfaction elsewhere, as is recounted supra.↩︎

  23. It bears the signature of the 37 members of the self-proclaimed People’s Council, comprising representatives of the principal parties and Jewish organisations of Mandate Palestine. Text in Le Caractère juif de l’État d’Israël, op. cit., p. 153.↩︎

  24. The parallel with the problematic of the juridical value of the Declaration of Rights of 1789 (as well as that of the Preamble of the Constitution) in French constitutional law is striking.↩︎

  25. As in the case of legislation on marriages and divorces.↩︎

  26. The Rabin government, in its September 1994 formation, rests only on a very narrow majority of 2 votes (the absolute majority is 61 votes). The entry into the coalition of the ultra-religious Shas party, which has been negotiated for many weeks, could win for him 6 votes: by going too far, however, in his concessions to the religious, the Labour Party and Mr. Rabin may lose the 12 votes of the left-wing Meretz bloc…↩︎

  27. Historically, it is true that almost all governments since the creation of the State have included religious parties, whether it be the period before 1977 (period of Labour hegemony), or after the right’s arrival in power that same year. The three brief periods of coalition without religious partners are the following: a little less than one year in 1958-1959, six months in 1974 (first Rabin government), and a period beginning in 1993 (date on which the orthodox Shas party left the Rabin government established in July 1992).↩︎

  28. From 1984 to 1988.↩︎

  29. Given the structures of the Jewish religion, it is difficult to formulate precise statistics as to the percentage of practising Jews. It will be emphasised that if barely 15% of voters vote for religious parties, nearly 25% are intent on sending their children to religious (public) schools or to the orthodox schools that are outside the State network (but subsidised).↩︎

  30. There exists, of course, a State rabbinate, as well as a system of rabbinical courts. The election of rabbis is of strong political connotation (the electoral body moreover comprises 49% secular people: in fact, local or national elected officials).↩︎

  31. As in the case of certain impediments to marriage between Jews (Cohen and divorced woman, rule of the levirate, etc.).↩︎

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