Ariel Center for
Policy Research



NATIV   ■   Volume Fifteen   ■   Number 3 (86)  ■  June 2002   ■  Ariel Center for Policy Research




The Qa`Adan Verdict and the
Question of Civil National Equality in the Jewish State

Yitzhak Bam

The verdict regarding the settlement of Qatsir is perhaps the most important of the verdicts ever handed down by the Supreme Court in recent years. It considered the clash between the policy of Jewish settlement in Eretz Israel and the demand of a member of the Arab minority to be accepted into a settlement that was founded by the Jewish Agency. This clash was not considered directly in the judgement. The majority opinion, voiced by the President of the Israeli Supreme Court, Aharon Barak, does not decide the issue directly. The majority opinion determined two principles: First, separate allocation of plots of land for Jewish and Arab settlement is necessarily discriminatory and illegal. Second, the principle of equality and the prohibition of “discrimination” flows entirely from the principles of the State of Israel as a Jewish state.

In this article, the author attempts to formulate a critique of the judgement from several points of view:

  1. President Barak’s disregarding of the specific purposes of the Law of the Israel Lands Administration.

  2. How does a man who has not served in the IDF bear the burden of protecting the settlement of Qatsir?

  3. Why do members of the majority group not have the right to reside separately, for the sake of cultivating their way of life and their culture? This question is sharpened in view of Israel’s self-definition as “a Jewish and democratic state”. This is said, presumably, to make it possible for Jews to live a full Jewish life in Jewish surroundings.

Further on in the article, it is shown that President Barak’s judgement deviates sharply from previous rulings that were determined by the Supreme Court, which tried to strike a balance between the principle of equality and other principles or interests. The principal criticism is directed toward the determination that the principle of equality flows from the Jewish character of the State. This position derives from President Barak’s conception of “the Jewish State” as meant to express only the universal values embodied in Judaism and Zionism. It is argued that this position distorts the balance made by the Legislator, by his anchoring particularistic Jewish-Zionist values to democratic-universal values. The most profound argument is that the recognition by the Court of the supremacy of Basic Laws, which anchor Israel’s values as a Jewish and democratic state, means that every law must be interpreted in light of the Basic Laws, and the Basic Laws must be interpreted on the basis of themselves and in light of the values that they are meant to support, rather than on the basis of values external to them.

The most important argument of all is that the judgement constitutes a dangerous shift toward the model of “a state of all its citizens”, in which the national interests of the Jewish people are not considered legitimate goals, so that the State may use force to promote them. Even if on the rhetorical level, the decision-maker denies the change after all, qualitatively the judgement involved a significant order, which indicates a dangerous future trend.

In conclusion, the argument is considered that the model of ethnic democracy, in which there is equality among all the State’s citizens, but not between all its ethnic groups, is the model that presents an alternative worthy of the new tendency of the Supreme Court. This model is the best synthesis which combines the values of Israel as a Jewish state and its values as a democratic state.

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