All Israel’s land is officially owned by the national government; and the government rents the land to people who live or construct buildings on it.
In one instance, the government rented “a nice little mountain” to an association of Israeli Jews, the Katzir Cooperative Settlement, whose members wanted to build housing there. (Despite the word “settlement,” the land in question lies within Israel’s pre-1967 Six Day War borders.)
An Israeli Muslim Arab family named Qaadan decided it too wanted to build a house on that property. But the co-op turned this family down on grounds that membership was limited to Jews. The Qaadan family went to court and charged unjustified discrimination.
A perfect example of how Israel cannot possibly exist as both a Jewish and a democratic state? So might contend many of Israel’s most vehement enemies.
But Justice Aharon Barak, president of Israel’s Supreme Court from 1995 to 2006, insists that Israel can be both.
And in a speech to some 150 people at Marquette University Law School in Milwaukee on Oct. 31, he cited the Qaadan case, for which he wrote the court’s decision in the family’s favor in March 2000, to show how the two sets of values can be harmonized.
Barak was the keynote speaker at a dinner sponsored by the university’s law school in collaboration with the Benjamin Cardozo Society of the Milwaukee Jewish Federation.
‘A not nice constitution’
According to Barak, attorneys for Israel’s government tried to contend that there was no discrimination against the Qaadans since nearby was another hill. The Qaadans had the equal right to form an Arab or Muslim association and build homes there, the attorneys argued.
But Barak said that in his decision, he wrote, “‘Separate but equal is inherently unequal’ — and you know exactly where [that phrase] was taken from.”
That is, the quotation comes from the historic 1954 U.S. Supreme Court decision Brown vs. Board of Education that struck down public school racial segregation, a case that ever since has become a classic embodiment of democratic values.
The state’s attorneys also contended that because Israel is a Jewish state, its citizens should feel free to have associations and neighborhoods limited only to Jews.
In response to this, Barak contended that in Jewish values, “Jews don’t discriminate against non-Jews.”
Jews may have “a special key to enter the country” — the Law of Return that allows any Jews to claim automatic Israeli citizenship, a law that Barak said is justifiably born of Israel’s creation as a refuge for persecuted Jews.
But once people, Jews and non-Jews, are “in the house” as citizens, “equality will be the rule,” Barak said. “When we Jews wandered through Europe, we yearned to be equals. When we created our own state, its first and most important idea is equality among everyone.”
Such judgments as Barak’s are not as straightforward to make in Israel as they would be for the U.S. Supreme Court. Israel does not have a formal constitution by which to evaluate its laws.
Instead it has a series of “Basic Laws” that serve in the place of a constitution. Barak called these laws “not a very nice constitution” because they can be much more easily altered or amended than can the U.S. Constitution.
Nevertheless, the Basic Law on “Human Dignity and Liberty” constitutes “our Bill of Rights” in parallel with the U.S. Bill of Rights (the U.S. Constitution’s first ten amendments), said Barak.
Moreover, Israel’s Declaration of Independence in 1948 proclaimed that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Barak said he cited both of these documents in his decision on the Qaadan case.
Barak acknowledged that Jewish and democratic values sometimes conflict in Israel. But he emphasized that such clashes can be resolved “not by giving priority to one or the other” and “not by trying to magnify the differences” but by “sensitive interpreting” of the legal texts and of both sets of values.
By working at “a high level of abstraction,” he said, Israel can “pick up from Jewish values those that fit democracy,” and “from democratic values pick up those that fit our Jewish values.”
“This is the way I look at it,” Barak said, “and I hope this is the way the court is looking at it and will continue looking at it for many years to come.”
In response to a question from the audience, Barak said that he is “in favor of a good constitution for Israel.” But he acknowledged that in spite of several attempts to create such a document, “The chances are not too great” that Israel will write and adopt a constitution soon.
He said that not only are there “strong forces” that oppose the idea, but Israel’s conflict with the Arab world “takes all our energies” away from the effort required to create a constitution.
Barak is in the U.S. serving as a visiting professor of law at the Yale University law school. He was introduced to the audience at the dinner by Wisconsin Supreme Court Chief Justice Shirley Abrahamson. MU law school Dean Joseph D. Kearney also spoke briefly at the event.
Dinner co-chairs were Franklyn M. Gimbel and Robert L. Habush. Doug “Zvi” Fraser and Hal Karas are chairs of the Cardozo Society.
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