In May 2023, Israeli Prime Minister Benjamin Netanyahu met with German Chancellor Olaf Scholz who voiced concerns regarding the so-called judicial reforms that Netanyahu was leading, and that they could bring Israel to depart from the community of democratic nations. Netanyahu tried to assure the German leader: “Israel is democratic and Israel will remain a liberal democracy,” he said.¹

But the term “liberal democracy” refers to a system of governance where the inalienable rights and dignity and worth of each individual are recognized, and their basic liberties are assured; where equality before the law exists, and equal political voice for all citizens enshrines popular sovereignty.

This essay, therefore, takes issue with Netanyahu’s statements and argues that Israel is not a liberal democracy. Instead, it is a Jewish democracy where the Jewish majority dictates the affairs in accordance with its conception of the good. Judaism and liberalism are contradictory. Moreover, the occupation of the West Bank detracts from the democratic nature of Israel, and the litmus test of a decent or civilized liberal democracy is the status of minorities.

In this context, Netanyahu’s self-description is insufficient. Mere statements of leaders do not make a country a liberal democracy. We need to examine the country’s laws, norms, its relationship with the “other”, human rights, and basic rights and liberties to decide whether a country is a liberal democracy. In this examination, I first outline the underpinning principles of liberal ideology. Then, I examine whether these principles are applied in Israel. 

Since 1948, it is argued that Israeli leaders have preferred the country to be Jewish rather than liberal. This is seen in how the dominance of Jewish Orthodoxy results in direct confrontations with liberal principles; liberal values are irreconcilable with the values of Jewish Orthodoxy. It is further argued that the lack of separation between State and religion makes Israel illiberal. Israel’s treatment of minorities is also highly problematic. 

This paper addresses four arguments against the claim that Israel is a democracy: First, Israel is an occupying power and, therefore, it cannot be democratic. Second, Israel is an apartheid state and apartheid is not democratic. Third, the recent anti-democratic judicial revolution has undermined Israeli democracy. Lastly, Israel cannot be called a democracy due to its war conduct against Hamas. I attend to these criticisms one for one, chiefly the argument that Israel is a democracy, albeit a flawed democracy.

Liberalism

Liberalism is grounded in a set of principles. Below I outline some of its basic tenets that will be later considered vis-à-vis Judaism, highlighting the inherent contradictions between liberalism and Orthodox Judaism. While Judaism includes different denominations, e.g. Orthodox, Conservative, and Reform, Orthodox Judaism is dominant in Israel.

Rationality

Liberal thought argues about human rationality. This is a normative assumption. Liberals acknowledge that there are different, sometimes competing interests, and humans can discern different ways of realizing them. This does not mean that we are all equally rational. Nor does it mean that there are no irrational desires, but that the person recognizes human irrationality and tries to regulate irrational desires, to control them in order to avoid harm, to herself and to others.

Individualism

The chief characteristic of liberal theory from Thomas Hobbes (1588–1679) to John Rawls (1921-2002) lies in its focus on individualism and the autonomy of the person. The individual is at the centre of attention. The notion of autonomy involves the ability to reflect upon beliefs and actions, and the ability to form an idea regarding them, so as to decide the way in which to lead a life. By deciding between their own conflicting trends, agents consolidate their opinions more fully and review the ranking of values for themselves with a clear frame of mind. The central idea of autonomy is self-rule or self-direction. Accordingly, the view is that individuals should be left to govern their business without being overwhelmingly subject to external forces. We are said to be free when our acts are not dominated by external impediments, thus enabling us to form judgments, decide between alternatives, and act according to the action commitments implied by our beliefs. 

Liberalism holds that autonomous individuals who are capable of acting rationally and deliberately, of being self-governed and self-controlled rather than subordinated to external forces and inspection, are entitled equally to respectful treatment. Two requirements have to be fulfilled in order to enable the development of individuality: first, the State must recognize that it “can have no end which is not also an end of individuals; its end can be realized only in the free wills of individuals; its end is, in fact, the development of the character”.² The state is a means and not an end (as opposed to fascism). The state is a vehicle and exists to serve the people. The state is regarded as an organization aiming to serve the given society and make it more of a community. The focus is on individual will, individual freedoms, and individual rights.

Secondly, the individual must be able to share equally in deciding what is essential for the flourishing of society. She also must not view herself as an isolated object who is interested only in herself, but as an object who could satisfy her needs and ambitions, and accomplish self-realization in the community, through community and with the help of others. The individual lives within a certain social framework and has to respect those who share with her the benefits of democracy.³ Extreme individualism, i.e. egoism, is rejected.

Rights and liberties

“Rights” refer to claims that are recognized as legitimate. “Freedoms” relate to the ability to guarantee yourself what you deserve on the basis of right.

In liberal thought, certain rights are defined as natural, basic, fundamental rights that each person deserves as a person. The Classical Liberal tradition from John Locke onwards was concerned above all with the preservation of individual rights, and with the emancipation of the individual from public control. Liberal ideology had set the individual on legal equality in opposition to feudalism, and challenged the right of the monarch to govern except in the interests of the citizens.

Liberty allows everyone the greatest amount of freedom consistent with order. Liberty is the right to act without any restraints except those imposed by law. In a country where the law is an expression of the will of the community, all actions are legally permitted to the citizens except those which injure equal exercise of rights by other persons. A free act is an act of will and not just a mere impulse; it is the power to do what one wants to do. As Voltaire enunciates: “To be truly free is to have power to do. When I can do what I want to do, there is my liberty for me.”⁴

John Stuart Mill valued freedom for its contribution to autonomy and to the realization of the higher potential of the individual. Liberty is desired as part of happiness and is consequently a component of that end, as well as a means to it. It is a means to reason, and the midwife of individuality which enables the pursuit of what we consider to be good. In turn, liberty also contributes to the development of civilization; for without it, progress is impossible.⁵ Mill instructs that there must be free debate and discussion within the participatory democracy, in which opinions and subjects can be heard, and criticism of the existing agenda is freely exchanged.

Equality

Liberalism advances and promotes the idea of equality. Liberals refer to this as equality before the law, gender equality, equality in voting, and equality in participating in public and civic life.

Tolerance

The idea of ​​tolerance is important and is needed to advance ourselves, to develop reasoned discussions and arguments, and to progress society. Disagreement is not necessarily negative, but legitimate, and even positive. Diversity of opinions is enriching, and therefore positive. Tolerance, different from apathy and indifference, is composed of three main components: (1) a strong disapproving attitude toward a certain conduct, action or speech; (2) power or authority to curtail the disturbing conduct, and (3) moral overriding principles which sway the doer not to exert her power or authority to curtail the said conduct. Tolerance cannot be considered as indifference, for the doer does have strong reservations regarding the conduct. He or she cares greatly about the issue but nevertheless applies self-restraint. Tolerance should not also be equated with the concept of neutrality because the latter is perceived as a specific requirement of justice and, in this respect, its meaning is akin to that of impartiality. As stated, tolerance, on the other hand, assumes that the agents are very partial regarding the phenomenon they consider.⁶

Liberals first emphasized religious tolerance. Later, they also accentuate the need for political tolerance. Since the 20th Century, there has been growing awareness of multiculturalism. The idea of compromise is endorsed to resolve all conflicts.

Minority rights

From the ideas of ​​tolerance and compromise a further idea of minority rights is derived. Liberal democracy is not merely majority rule. It is majority rule while protecting the rights of minorities. Democracy is a system of government in which the majority rules but does not neglect the basic rights of minorities, such as life, freedom, property, fair opportunities to develop their talents and capacities, as well as to become the majority. 

The majority rule is commonly justified and accepted in practice simply because, from a practical point of view, no reasonable alternative exists. This alternative denotes that in the democratic system, the government that implements political decisions is ultimately elected by at least fifty per cent plus one of the enfranchised citizens. The attraction of this alternative rests in the claims that this is the best way of ensuring sensitivity to the widest possible range of interests and that the majority ‘naturally’ is entitled to act for the whole. Since unanimity of opinion is impossible and there is no way to fulfil everybody’s aspirations, it is the greater rather than the lesser number of preferences that should prevail since it is nearer to the whole number; it is taken to be the best approximation to the ‘general will’. However, it is a practical necessity rather than an ideal in itself. It does not follow that the majority right is absolute, or that the majority opinion cannot be wrong. Quantity does not necessarily entail quality. Numerical relation in itself does not necessarily entail that the prevailing opinion is right, or just. The fact that the many are literally stronger than the few does not imply that might makes right. A majority can hold destructive views and the fact that we are speaking about a considerable number of people does not make beliefs just; it just makes the situation more terrible. 

Rule of Law

The rule of law attempts to ensure individualism, basic freedoms and the restriction of government by appropriate legislation, instituting a just, socio-political system. The law should be public, transparent, and apply to all the citizenry without exception. Liberalism further accentuates that no one is above the law.

Universalism

The principle of the dignity of the person is universal.⁷ German philosopher Immanuel Kant identifies dignity with moral capacity, arguing that human beings are infinitely above any price: “to compare it with, or weigh it against, things that have price would be to violate its holiness, as it were.”⁸ In other words, “morality, and humanity insofar as it is capable of morality, is that which alone has dignity”⁹. Kant explains that such beings are not merely “subjective ends” whose existence as a result of our action has value for us but are “objective ends,” i.e. things whose existence is an end in itself.¹⁰ Each person has dignity and moral worth. People should be respected qua being persons. The concept of dignity is universal. Dignity cannot be qualified due to one’s gender, race, religion, culture, class or any other characteristics, and it requires us to take responsibility for our conduct. 

Democracy

From the 17th century, and especially from the 19th century, liberalism and democracy increasingly have gone hand in hand. Democracy is seen as the institutional expression of the idea of ​​liberalism.

Democracy, then, is essentially a form of political action, a system of government in which political power is exercised by the state over individuals within it. The term is derived from the Greek words ‘demos’ (the people), and ‘kratos’ (authority), meaning: the rule of the people. The political authority rests with the people and can be exercised to establish, modify or abolish the system of power. Commonly, democracy is defined as a form of government in which political power belongs to the public as a whole and not merely to a single person or a particular limited group of people. ‘Democracy’ has been used in conjunction with the terms ‘monarchy’ and ‘aristocracy’, and this trilogy has been employed to discern situations of monopoly, oligopoly, and equality. A state is democratic, not ‘if’, but insofar as the great mass of the population can exercise an effective influence on the process of decision-making. Thus, democracy is a matter of degree and not a fixed concept; it is more useful to think in terms of a scale than to attempt to lay down conditions for democracy.¹¹ 

At the heart of the democratic theory lies the principle of popular will. Democracy in its essence is a participatory mode of collective decision-making, one in which all citizens have the opportunity and ability for involvement in public affairs. The citizens participate in influencing and shaping the policies which concern their lives. They share the duties and rights of political life; they possess the same burdens and benefits, rights and liberties; they initiate policies and govern the political authority. This means making the community freer and of a participatory character. 

Every citizen is a potential participant in civic life. Participation is one of the expressions of liberty, and it is only when people can shape their will, that it becomes in any real measure creative. Hobhouse writes: “Democracy is not founded merely on the right or the private interest of the individual. This is only one side of the shield. It is founded equally on the function of the individual as a member of the community. It founds the common good upon the common will, in forcing which it bids every grown-up, intelligent person to take a part.”¹² 

Democracy involves non-governmental as well as governmental decision-making. The growth of democracy has been associated with the flow of opinions, with free discussion of political issues, with the right to differ concerning them, and with the settlement of the differences, not by sheer force, but rather by resorting to notions of discovering what ‘the will of the people’ is. The democratic principles include the right to vote, citizens’ participation and representation, separation of powers and having adequate checks and balances, a strong rule of law, the safeguarding of basic human rights, and having majority rule while protecting the rights of minorities. 

Democracy can be considered as a way of administering discussion between different persons who hold different interests. The aim is not to secure complete agreement on every question, though democracy certainly welcomes the crystallization of consensus and agreement. Democracy does not demand the creation of a society which consists of people who parrot decisions of the governing body, but rather it demands to accept the right to be different, to accept that there can be a range of opinions. This acceptance implies, in turn, an agreement on the ways in which these differences could be settled in practice. 

The degree of democracy in any society can be evaluated by the extent to which all constituent groups are incorporated into, or excluded from, the decision-making process, the extent to which governmental decisions are subjected to popular control, and the extent to which ordinary citizens are involved in public administration, of ruling and being ruled. An active sense of community membership involves the deliberate adoption of community purposes and public-spirited action to bring them about; the active ability to resolve social problems; and the enjoyment of the feeling that one has the potential, and more importantly, the actual ability to change substantive things which concern his life. It is essential for a democratic society that citizens will be interested in, informed about, and active in politics. If democracy is the rule of the people, by the people, for the people, then the people, by definition, must show interest and be active. 

These are the basic tenets of liberal democracy. Now, let us reflect on the question of whether these tenets are reconcilable with Orthodox Judaism. 

Judaism v. Liberalism

Throughout the years, I have always been surprised talking to many leaders in Israeli society who do not think the present situation is problematic, and who think it is possible to reconcile the contradictions between the liberal and religious worldview in Israel. Politicians (David Ben-Gurion, Menachem Begin, Shimon Peres, Benjamin Netanyahu, to name a few), Supreme Court justices (Meir Shamgar, Aharon Barak and Elyakim Rubinstein), and public intellectuals (Ruth Gavison, Asa Kasher, Fania Oz-Salzberger) think this is possible.¹³ 

I disagree. I think that the contradictions between the two are fundamental and irreconcilable. Both liberalism and Judaism offer comprehensive weltanschauungs, aiming to affect society and politics. Thus, unlike Israeli historian Fania Oz-Salzberger who contends that liberalism and Judaism belong in different spheres and thus they “could work quite well together,”¹⁴ I think that unfortunately liberalism and Judaism are competing one against the other in the same sphere, so long as no separation between State and religion is maintained. Unlike Oz-Salzberger who thinks that the solution is “to fatten one cow” (democracy) and “slim down the other” (Judaism),¹⁵ I think the solution is to establish two separate spheres to ensure that liberalism and Judaism will not clash. 

Essentially, the private sphere of Israeli citizens should be significantly enlarged to enable individual development and autonomy as people see fit; this is within the confines of the underpinning principles of respect for others and not harming others. Especially in recent years, Israel has been prioritizing Judaism over liberal democracy. In the 2018 Democracy Index, 45% of the Jewish and Arab respondents said that the Jewish component is too dominant in Israel while 27.8% thought there is a good balance between the two components, and only 20.9% thought that the democratic component is too dominant.¹⁶ A poll conducted among Israeli Jews in 2022 asked, “Which component should be the dominant one, the Jewish or the democratic?” Forty-three percent responded that the Jewish component should be the dominant factor.¹⁷ Many believe that to survive as a Jewish state, the Jewish character of the State should be preserved and promoted even if that entails inequitable treatment of the other.¹⁸

In Israel, there are inherent contradictions between the religious and the liberal worldviews. The first source of contention relates to the notion of rationality. Religion is based on faith, and believers believe in a supernatural entity called God. God can make miracles that are not easily fathomable and explainable by rational faculties. Not everything in religion can be explained because humans are unable to understand the ways of God.

Liberalism perceives God as a subjective truth, existential only to the extent that one decides to make God existential for one’s life. God may exist in individual beliefs but this belief is a matter of personal choice. God is not necessarily part of the equation. Judaism believes in God in an existential way, as an objective truth. Thus, liberalism and Judaism offer very different comprehensive societal and legal dimensions.

The second source of contention relates to the notion of Individuality. In the centre of the analysis of the liberal stands the individual. All stems from the individual; all return to the individual. The individual stands at the center of the universe. In the theocratic worldview, God is the centre of the universe, the source of all authority and the mighty power which we all respect and fear. In the liberal worldview, God is a debated concept, a question of belief. God does not necessarily guide life. Belief is a matter of personal choice, not an absolute dictate. In liberalism, the question of whether God created man, or man created God, remains open.

In Orthodox Judaism, the collective is more important than the individual. Individuals must all be working in harmony, each completing his or her unique task that responds to the needs of the greater good of Judaism. The actualization of individual abilities can only come through working in harmony with the greater body of Israel. Jewish people can only actualise their full potential when they work together as a collective. Moreover, God gave us individuality as a challenging voice that must be suppressed, lest we risk undermining the community. The message of the Torah, according to the Orthodox interpretation, is that everyone is working in accordance with God’s mysterious plans, and we must not question them.

While liberalism aims to promote individual autonomy, Judaism aims to constrict individual autonomy. While liberalism appreciates pluralism and diversity and endorses human equality for all, Judaism is a national religion, in that most of its commandments and directives pertain to a particular people, the congregation of the Jewish State, and only a few are directed toward humanity per se.¹⁹

The third source of contention relates to the concepts of rights and liberties. Liberal groups and Orthodox groups clash. Liberals believe in live and let live, as long as you don’t harm others.²⁰ The religious belief is that people are not at liberty to conduct their lives. People are expected to abide by a given set of rules and dictates. Consequently, some religious people see the liberal concept of liberty as dangerous.

The fourth source of contention relates to the notion of equality. The idea that each individual matters, and that she matters equally, is at the heart of liberalism.²¹ By contrast, Jewish law, Halacha, does not perceive men and women as equal. Many of the halachot (dictates) stand in striking contradiction to present conceptions of basic human and civil rights. They do not have a place in a liberal democracy. Many of these halachot are not enforced in Israel as they seem ill-suited for present Israel. Still, the overall culture and the structure that Jewish law creates are discriminatory against women, and plenty of inegalitarian dictates are still adhered to.²²

Liberals and Orthodox Judaism disagree on the ideas of tolerance and compromise. Indeed, the concept of coercion is a major source of contention. Liberals distinguish between authority and coercion. Authority is one thing; coercion is another. Liberals believe in freedom and dread coercion. They may respect order and accept some restrictions on their freedoms to enable others’ freedom, but any form of coercion requires justification.²³ By contrast, religious people have no qualms about coercing others because they believe people are not free to start with. Moreover, some of them believe that if some people go astray, they may lead the entire community down the drain. We Jews sit in the same boat, and if some are leading reckless lives, they knock holes in the boat and we all sink to rock bottom. Thus, tolerance and compromise cannot be the answer. The only way to avoid this fate is to coerce the reckless to change their way of life and adopt the “correct” one. It is very difficult, if not impossible, to find a modus vivendi, some form of reconciliation between liberals and religious people.²⁴

The religious coercion brings about continued agony and a great deal of hardship, both alienating many parts of the population from the State and its institutions. As Judaism is governed by patriarchal norms, these guide state interference in people’s most personal matters. The most intimate private concerns become open to public regulation. Secular people are required to abide by a set of norms and halachic regulations that are not part of their worldview. The most significant private events in one’s life, birth, wedding, divorce and death, are within the responsibility of the Orthodox Rabbinate. These very personal issues should be handled in accordance with people’s own choices. The preservation of the Jewish character of the State should not entail coercion of the predominant secular circles of Israel. 

Liberals and Orthodox Judaism disagree on the issue of minority rights. Israel was established to protect the individual and collective rights of only the Jewish people. Arabs want full citizenship, to be distinguished from formal citizenship. Israeli Jews can be said to enjoy full citizenship: they enjoy equal respect as individuals, and they are entitled to equal treatment by law and in its administration. The situation is different with regard to the Israeli-Palestinians, the Bedouin and the Druze.²⁵ Although they are formally considered to enjoy liberties equally with the Jewish community, in practice they do not share and enjoy the same rights and liberties. Palestinians do not have national rights. These rights are reserved only to Jews. The raison d’être of the State is to be a magnet and a place of refuge for Jews from all over the world. As a democracy, Israel recognizes that all its citizens should enjoy basic human rights. This does not mean egalitarian implementation of rights. Israeli policies vis-à-vis the Palestinian minority involve coercion, limiting their access to power positions, and putting them in constant check as the Palestinians are often seen as a security threat, posing an alternative to the existent reality. The Palestinians are not part of the Zionist enterprise and do not share the Jewish vision and aspirations. Their national movement competed with Zionism, offering an alternative that would have ended the Zionist dream. Israeli policies regarding the Palestinians have aimed to answer the dual challenges of security and demography. Both are very much on the minds of Israeli decision-makers.²⁶

Consequently, Israel is willing to accommodate Palestinian interests to an extent; concessions are measured; discrimination against Israeli-Arabs/Palestinians is prevalent in many spheres of life, including land allocation, housing, municipality budgets, employment, education, urban development and basic civil rights. There is an unhealthy discrepancy between official statements which are not backed by deeds. The Arab-Palestinians do not enjoy the same rights and liberties. The symbols of the Jewish state ignore its minorities.²⁷ 

Liberals and Orthodox Judaism disagree over the issue of the rule of law. Believers cherish first and foremost Halacha, Jewish Law, as they see it as Godly directives that are superior to any other competing values. Between the rule of law and the rule of the Torah, people are not in a position to freely balance and choose. They must follow the dictates of Jewish Law. Thus, in a case of conflict, believers have no hesitation as to how to act. Liberals, on the other hand, believe in the rule of law and would see any competing worldview that posits itself as superior to the law of the State as dangerous and subversive, and as undermining democracy, civil rights and freedoms. Religious parties have objected to a written constitution as they do not wish to have a man-made constitution that might conflict with Jewish law.

Liberal legislation tries to find the Golden Mean between individual rights and liberties, on the one hand, and State authority, on the other. The State is perceived as an enhanced and complex machiner to enable self-development and enriched autonomy. Restrictions stem from the concepts of respect for others, and not harming others. Religious worldview, however, is guided by utterly different considerations. Legislation must conform to the will of God. People are merely uncovering His will. Legislators are but interpreters of that will, intent to achieve the most faithful interpretation of Godly categorical imperatives that are obviously external to people. Consequently, the freedom that the legislators can take upon themselves is limited. They must constantly direct themselves toward clarifying the exact requirements of the divine commands.²⁸

Another source of contention relates to the notion of universal dignity. In liberalism, the principle of dignity is universal.²⁹ In Judaism, human dignity is not necessarily universal. The nature of dignity has been distorted, establishing a gender hierarchy in which the dignity of men receives more protection than that of women. The Talmud invokes the idea of kevod ha-tsibbur, “dignity of the congregation”³⁰ or zila milta, maintenance of propriety/modesty within the community, to prevent women from being called to read the Torah in the synagogue. It is considered a breach of propriety (zila be-hu milta) were women to assist the masses in fulfilling their obligation to read the Torah.³¹ Essentially, the exclusion of women is designed to promote the dignity of both men and women. With this exclusion, men can concentrate on reading religious texts while women can focus on doing other things, perceived by Jewish sages as more “meaningful” to women. That women’s dignity is violated by giving precedence to the dignity of the community is not a consideration. 

Israeli Democracy

I have established that Israel cannot be called a liberal democracy, arguing instead that it is a Jewish democracy. Critics, however, may challenge the characterisation of Israel as a democracy. Recently, critics have voiced four main accusations: First, Israel occupies the West Bank and Gaza. An occupying force cannot be called a democracy. Second, Israel is an apartheid state. Apartheid is not democratic. Third, the recent government has attempted to transform Israel from a democracy to authoritarian-theocracy. I term it the anti-democratic judicial revolution. And lastly, Israel cannot be called a democracy due to its conduct in the ongoing war against Hamas. Let me attend to these criticisms one for one. 

Occupation

Throughout the years, I have condemned the occupation time and again. Since the 1980s, like Old Cato, the Roman historian, I have said time and again: Occupation qua occupation is evil. Occupation qua occupation is morally repugnant. I reiterated that no one should live under occupation. The occupation denies the Palestinians basic human rights. Since 1967, Israel has controlled Palestinian life in all vital aspects: civic, economy and security. Israel behaves like a control-freak, motivated primarily by fear as well as feelings of superiority. I also argued that while the occupation is primarily bad for the Palestinians, it is also bad for Israel. The occupation erodes Israeli moral fiber, its humanity and civility, and it also undermines Israel’s position in the community of nations. Israel is paying a very high price for its conduct in the occupied territories, and the price will be dearer as the occupation continues. The occupation has to come to an end, the sooner the better.³² Israel should strive to strike a deal with the Palestinians so that the Palestinians enjoy freedom and Israel enjoys life that is free of violence and terror.³³

Two further assertions are pertinent: First, the occupation alone does not transform Israel from a democracy to a non-democratic country. While it detracts Israel’s democracy and affects it negatively, making it a flawed democracy, Israel is still a democracy. Notwithstanding the occupation, many of the characteristics of democracy still exist. There is a rule of law which guarantees that everyone enjoys equal protection in the democratic process. It is backed by coercive power and it depends on sanctions and especially on the general acknowledgement of its authority. All citizens enjoy civil rights. There is free speech, a free press, free association, and free movement. Citizens have the right to protest against government policies even by a direct appeal to the Supreme Court. Citizens have the right to scrutinize the character and the motives of governmental conduct. Civic participation is lively. Citizens are agents and not merely spectators. Non-government organisations are very active. There is popular sovereignty. There are periodic, universal and free elections. Citizens are free to organize different parties and enjoy the right to vote and the right to be elected. Each citizen has an equal vote to influence the outcomes of the legislative process. 

Second, different arguments need to be made about the West Bank and Gaza. In the West Bank, Israel is an occupying power. Palestinians live under Israeli security control and are denied basic freedoms. The situation is different in Gaza. In 2005, Israel withdrew from Gaza; no single Israeli, civilian or soldier, remained. For security reasons, both Israel and Egypt closed their borders, making Gaza what the Palestinians term “the largest open prison in the world”. Both Israel and Egypt are very concerned about their security, given that since 2007 Gaza has been under the control of Hamas, a terrorist organization that never even tried to have a perception of abiding by international law. The Palestinians in Gaza were denied freedom of movement and were put under external restrictions that made their lives difficult. Still, their situation is different from their West Bank brethren. I will say more about the ongoing situation in Gaza infra.

Israel is an apartheid state

Israel has been accused of bearing similarities to the infamous South African apartheid regime. The Palestinians in the West Bank are not equal to the Israelis in the West Bank. Palestinians and Israelis are governed by different laws with the former under military rule even if the Palestinian Authority assumed responsibilities for the majority of Palestinians on civic matters. The Israelis in the West Bank are governed by Israeli rule. Their economic systems are very different—comparatively, Palestinians earn a fraction of what Israeli earn. There are separate road systems in the West Bank—one for Jewish residents and another for Palestinians. This brute reality is seen as echoing aspects of apartheid-era segregation.

Having said that, critics of Israel should clearly differentiate between the Israeli occupation of the West Bank—where Palestinians are undeniably treated unequally in comparison to Israelis living in the same region and are routinely subjected to restrictive occupation policies—and the situation within Israel itself. In my view, the argument that Israel’s treatment of its Arab-Palestinian citizens constitutes apartheid does not hold. The substantive rights for the Arab minority are ensured, including voting rights, the right to form political parties, freedom of expression, religious autonomy, and access to separate educational systems. These advancements are neither trivial nor self-evident, and they reflect meaningful legal and social processes.

While I acknowledge that Israeli-Palestinians do not always receive equal treatment or fully enjoy the same rights and liberties as Israeli-Jews, their experience does not resemble South African apartheid.³⁴ Discrimination, though problematic, is distinct from apartheid. Exaggerating the situation’s severity is unnecessary. Those who label Israel as an apartheid state often have limited understanding of the realities in Israel and South Africa under apartheid. Israel is a multicultural society, and while multiculturalism poses challenges, sometimes resulting in discrimination against minorities—including those based on age, gender, or sexual orientation—these issues are subject to rigorous judicial review by the Supreme Court. Although gaps remain and more government action is needed, discriminatory acts are not legitimized, and those who engage in discriminatory practices face legal consequences and court censure.

The anti-democratic judicial revolution

In November 2022, polls were held to elect the 25th Knesset. Benjamin Netanyahu was elected as prime minister, leading the most extreme, right-wing theocratic government in Israel’s history. Shortly thereafter, a legislative blitz began. In the first three months of the Knesset, 2,910 private law proposals were tabled together with 27 government law proposals. Five more legislative proposals were tabled by the Knesset committees. Some 141 of those law proposals were related to the governance of Israel,³⁵ and aimed to politicise procedures, were self-serving, theocratic, discriminatory and on the verge of science fiction due to their blunt hutzpah, lack of judgement, lack of research, and their anti-democratic character. I take note of some of the proposed laws in the legal revolution, arguing that if those law proposals were enacted they would undermine Israeli democracy significantly. Due to lack of space, I will not review all of those proposals. I highlight some of the most problematic law proposals.

Corrupt Laws

Prime Minister’s immunity.

The prime minister can be declared unfit to perform his/her role only due to physical or mental incapacity. Criminal charges or criminal convictions cannot be grounds to declare the prime minister unfit. Notably, Netanyahu is currently facing several severe criminal charges against him. 

Barring criminal investigations against the Prime Minister as long as he/she is serving in office.

Ministers and deputy ministers could be barred from office due to criminal charges against them only by the Knesset, instead of the Supreme Court as is the case now. 

Furthermore, the Supreme Court could not intervene in appointment of ministers. A senior minister and leader of the Shas Party, Arieh Deri, is a convicted felon who wishes to serve in the government.

Deputy Director Generals of ministries would cease to be professional appointments. Other law proposals were to enable people without appropriate qualifications to serve in governmental companies as directors and in other senior positions. Politicians will be able to appoint their loyal servants.

Public officials will be able to receive donations for legal defence and for emergency medical treatments. This proposal is tailored for Netanyahu. One of the charges against him relates to acceptance of gifts in return for favours.

Legal Advisors of ministries will be appointed by the ministers. They will become trusted officials of the ministers in charge and report to the minister instead of reporting to the Legal Advisor to the Government.

The Legal Advisor to the Government and the State Attorney will be appointed by the government without a need for tender, as is the case now.

The Department of police investigations will be taken from the Office of the State Attorney and will be under the Minister of Justice who will be able to appoint the Head of the Department. 

Laws designed to weaken the police and its independence

The Minister of Internal Police will be able to decide police policies including the investigations’ policy.

Key functions within the police will be transferred to the responsibility of The Minister of Internal Police.

Laws to provide immunity to security forces

Immunity will be given to all security people during security operations. 

The Department of Police Investigations would not be able to investigate officers involved in preventing terrorism and other threats to national security. 

The drafters of those short-sighted laws fail to understand that the enactment of the laws would open a flood of petitions to international courts to investigate misconduct.

Laws that undermine basic human rights

The police could use advance photographic technology to monitor civilian activity and invade privacy.

At the same time, the immunity laws for Members of the Knesset would be expanded to prevent searching their (and their assistants’) smart phones and computers.

Discriminatory laws

Shabac, Israel’s security agency, would receive authorization to monitor and act against serious criminal activity, “especially in the Arab society”.

Anti-Democratic laws

Only persons who are directly affected by certain policy could appeal to the Supreme Court. NGOs would not be able to do so.

Civil rights organisations would be barred from documenting human rights violations, e.g. documenting soldiers who harass Palestinians in the Occupied Territories.

Barring demonstrations near private homes of public officials.

Three-year imprisonment to those who block roads, e.g. protestors against the government anti-democratic laws.

One-year imprisonment to three people or more who wave together enemy flags.

Three-year imprisonment and a fine of at least 5,000 NIS (U$ 1,370) for waving the Palestinian flag.

Supporters of banning Israel would not be eligible to State prizes.

Those convicted for violating the Israeli flag or symbols would not receive national welfare.

Judicial revolution

The number of Supreme Court justices will be raised from 15 to 18. Three new justices would be appointed by the government now, with immediate effect.

The composition of the Committee that appoints judges will be changed, giving the government the majority to decide all appointments. The Supreme Court justices who serve on the Committee would no longer have a veto power over appointments.

The Supreme Court would be able to overrule laws only in its sitting in full, with all justices present, with only unanimous vote.

The President of the Supreme Court would be appointed by the government and confirmed by the Knesset. The Seniority norm would no longer be in existence. The President does not have to be a justice of the Supreme Court.

Chair of the Elections Central Committee would not be a Justice of the Supreme Court, as is now, but would be recommended by the Speaker of the Knesset.

If the government were successful in passing the above laws, Israel would cease to be a democracy. However, until now the government was unable to pass the majority of those laws. Israeli democracy showed its strength in opposing the suggested laws. Every week, hundreds of thousands of people gathered in the main squares protesting against the attempt to overhaul democracy. The government was forced to rethink its strategy. The situation was further compounded on October 7, 2023 that sunk Israeli society into a deep trauma.

The 2023-2024 Hamas-Israel War

On October 7, 2023, the Hamas terrorist organisation raided more than twenty Israeli villages, towns and small communities neighbouring the Gaza Strip. On that fateful day, the terrorists shot and burned 1,200 people of all ages, among them some 260 young men and women who were dancing in a music and peace Nova festival.³⁶ In addition, thousands of people were severely wounded and some 250 Israelis and foreign nationals—including babies and children —were kidnapped to Gaza.³⁷ Israelis were deeply shaken by the gruesome attack. The government responded by declaring war on Hamas, aiming to eradicate its terrorist capabilities so it wouldn’t be able to repeat such cross-border attacks. At the time of writing, the war is still ongoing. 

Some Israeli leaders declared that they wish to exact revenge and retaliate strongly against Hamas brutality. Revenge should not guide decision-makers in peace or war times. Revenge is a terrible guide for conduct. The conduct of the Israeli army will traumatize the Palestinians in Gaza for generations to come. Here are some figures that show the scale of death and devastation until October 7, 2024:³⁸ 

Over 44,000 Palestinians were killed in Gaza and more than 100,000 were wounded. At least 720 Israeli soldiers were killed and 4,576 were wounded. Around 1.9 million Palestinians were displaced (90 per cent of the population of Gaza). More than 58,000 Israelis were displaced. Over 120,000 structures in Gaza were moderately damaged or destroyed (66 per cent of structures in the Strip). About 92 per cent of primary roads in Gaza were damaged or destroyed. 84 per cent of health facilities in Gaza were damaged or destroyed. More than 67 per cent of water and sanitation facilities in Gaza were damaged or destroyed.

While Israel’s offensive in Gaza has killed tens of thousands of Palestinians and caused widespread destruction, this does not mean that Israel ceased to be a democracy. The United States and the United Kingdom were involved in many conflicts and inflicted untold pain and damage on many societies; still they are regarded as beacons of democratic order, a model for the world to follow. One may argue that the war in Gaza is unjust but one cannot argue that the war, in itself, transformed Israel to an undemocratic entity.

Conclusion

Judaism, like any other religion, can live with liberalism if it provides opportunities for personal growth and is instructive rather than absolute. While providing specific, distinctive and instructive dictates that separate one religion from others, and provide adherents a sense of a community, religion should not be discriminatory against those who do not adhere to a specific religion. Religion should allow basic freedoms and the ability to opt-out at will. Religion is a matter of choice and tradition. People are born into a particular way of life and most of us will find our place within that framework. But some of us won’t; these people should enjoy the freedom to decide their own path of life. Religions that are flexible enough to accept pluralism and diversity, that are tolerant and humane in acknowledging the human spark, and human viability in each and every one of us, can coexist with liberal democracy. Coercive religions will come at the expense of liberal democracy. I, for one, as a liberal Reform Jew, believe that religion and liberal ideology can coexist provided that religion is excluded from the political sphere. The model that separates state and religion is not only desired. It is essential.

Data shows that the lack of separation between State and religion puts non-Orthodox Jews as well as the Israeli-Palestinians in a precarious position, undermines their equal rights and liberties, and paves the road for discrimination against them.³⁹ This situation makes Israel an illiberal society. It is a society under stress with many challenges to face, both internally and externally. Still, Israeli society and democracy are resilient and were able to withstand those challenges. In the long run, the key to Israel’s long-term survival is to integrate fully into the Middle East, and the key to Israel’s integration into the Middle East is to peacefully resolve the Israeli-Palestinian conflict.

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Footnotes used exceptionally

1.  Lazar Berman, “On Berlin visit, Netanyahu denies he’s working to curtail independence of judiciary”, Times of Israel (16 March 2023), https://www.timesofisrael.com/in-berlin-netanyahu-tells-scholz-israel-is-and-will-remain-a-liberal-democracy/
2.  Michael Freeden, The New Liberalism (Oxford: Clarendon Press, 1978): 171.
3.  Ronald Dworkin, “Liberalism,” in A Matter of Principle (Oxford: Clarendon Press, 1985): 181-204.
4.  Bertrand De-Jouvenel, Sovereignty (Chicago: University of Chicago Press, 1957): 248. For further discussion, see John Zvesper, “Liberalism”, in David Miller (ed.), The Blackwell Encyclopaedia of Political Thought (Oxford: Blackwell, 1987): 285-289. 
5.  J.S. Mill, Utilitarianism, Liberty, and Representative Government (London: J. M. Dent, 1948).
6.  R. Cohen-Almagor, The Scope of Tolerance: Studies on the Costs of Free Expression and Freedom of the Press (London and New York: Routledge, 2006).
7.  Immanuel Kant, Foundations of the Metaphysics of Morals. Trans: Lewis White Beck, with critical essays (Indianapolis, Ind.: Bobbs-Merrill Educational Publishers, 1969); George Kateb, Human Dignity (Cambridge, Mass.: Harvard University Press, 2011); Michael Rosen, Dignity: Its History and Meaning (Cambridge, Mass.: Harvard University Press, 2012); Marcus Duwell, Jens Braarvig, Roger Brownsword and Dietmar Mieth (eds.), The Cambridge Handbook of Human Dignity: Inter-disciplinary Perspectives (Cambridge: Cambridge University Press, 2014); Stephen Riley, “Human Dignity as a Sui Generis Principle”, Ratio Juris, 32(4) (2019): 439-454.
8.  Immanuel Kant, Foundations of the Metaphysics of Morals (Indianapolis, Ind.: Bobbs-Merrill Educational Publishers, 1969) or http://www.redfuzzyjesus.com/files/kant-groundwork-for-the-metaphysics-of-morals.pdf
9. Immanuel Kant, Groundwork of the Metaphysics of Morals, https://cpb-us-w2.wpmucdn.com/blog.nus.edu.sg/dist/c/1868/files/2012/12/Kant-Groundwork-ng0pby.pdf
10.  Kant, Groundwork of the Metaphysic of Morals. For further discussion, see Ino Augsberg, “’The Moral Feeling Within Me’: On Kant’s Concept of Human Freedom and Dignity as Auto-Heteronomy,” in Dieter Grimm, Alexandra Kemmerer and Christoph Möllers (eds.), Human Dignity in Context (Munich: Hart, 2018): 55-68.
11.  Benjamin R. Barber, “Democracy”, in David Miller (ed.), The Blackwell Encyclopaedia of Political Thought (Oxford: Blackwell, 1987): 114-119.
12.  L.T. Hobhouse, Liberalism (London: Oxford University Press, 1945), 228. Hobhouse maintained that there is no thought except in the mind of an individual thinker, and there is no such thing as a unitary social mind or will: only individuals, not society, have a distinct personality. 
13.  Discussions and communications with Meir Shamgar, Aharon Barak, Elyakim Rubinstein, Ruth Gavison, Asa Kasher and Fania Oz-Salzberger; State of Israel as Jewish Democracy (Jerusalem: International Association for Judaic Studies, Reut Institute, 1999, Hebrew); Fania Oz-Salzberger, “Democratic first, Jewish second: a rationale,” Justice, 49 (Fall 2011): 16; Asa Kasher, “’A Jewish and Democratic State’: Present Navigation in the Map of Interpretations,” in R. Cohen-Almagor (ed.), Israeli Democracy at the Crossroads (London: Routledge, 2005): 165-182.
14.  Fania Oz-Salzberger, “Democratic first, Jewish second: a rationale”: 16.
15.  Ibid.: 37.
16.  Tamar Hermann et al., The Israeli Democracy Index 2018 (Jerusalem: The Israel Democracy Institute, 2018): 179, 222. The rest did not know or refused to answer.
17.  Tamar Hermann, “Jewish and/or Democratic in Numbers”, in Aharon Barak et al. (eds.), 75 Faces to the Jewish State (Tel Aviv: Yedioth, forthcoming) (Hebrew).
18.  Yehezkel Dror, Israeli Statecraft: National Security Challenges and Responses (London and New York: Routledge, 2011): 20.
19.  Aviezer Ravitzky, “Is A Halachic State Possible? The Paradox of Jewish Theocracy,” in R. Cohen-Almagor (ed.), Israeli Democracy at the Crossroads: 137-164.
20.  J.S. Mill, Utilitarianism, Liberty, and Representative Government (London: J. M. Dent, 1948); Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969); Joel Feinberg, Harm to Others (Oxford: Clarendon Press, 1984); Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986).
21.  John Locke, Second Treatise of Government and A Letter Concerning Toleration (Oxford: Oxford University Press, 2016); John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971); Ronald Dworkin, Sovereign Virtue, The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000).
22.  Raphael Cohen-Almagor, “Discrimination against Jewish Women in Halacha (Jewish Law) and in Israel”, British Journal of Middle Eastern Studies, 45(2) (2018): 290–310.
23.  R. Cohen-Almagor, “On Compromise and Coercion,” Ratio Juris, 19(4) (December 2006): 434-455.
24.  For further discussion, see R. Cohen-Almagor, “Avoiding the Destruction of the Third Temple: Separating State and Religion”, in Yossi Goldstein (ed.), Religion Nationalism: The Struggle for Modern Jewish Identity, An Interdisciplinary Annual (Ariel: Ariel University, 2014): 170-189.
25.  Kais M. Firro, “Reshaping Druze Particularism in Israel,” J. of Palestine Studies, 30(3) (Spring 2001): 40-53 and Firro’s The Druzes in the Jewish State: A Brief History (Leiden: Brill, 1999).
26.  Charles D. Freilich, Israel National Security (NY: Oxford University Press, 2018).
27.  R. Cohen-Almagor, Just, Reasonable Multiculturalism: Liberalism, Culture and Coercion (New York and Cambridge: Cambridge University Press, 2021): Chap. 10.
28.  Yuval Cherlow, “’Jewish’ and ‘Democratic’ – Can They Coexist?,” Justice,  49 (Fall 2011): 8-9.
29.  Immanuel Kant, Foundations of the Metaphysics of Morals. Trans: Lewis White Beck, with critical essays (Indianapolis, Ind.: Bobbs-Merrill Educational Publishers, 1969); George Kateb, Human Dignity (Cambridge, Mass.: Harvard University Press, 2011); Michael Rosen, Dignity: Its History and Meaning (Cambridge, Mass.: Harvard University Press, 2012); Marcus Duwell, Jens Braarvig, Roger Brownsword and Dietmar Mieth (eds.), The Cambridge Handbook of Human Dignity: Inter-disciplinary Perspectives (Cambridge: Cambridge University Press, 2014); Stephen Riley, “Human Dignity as a Sui Generis Principle”, Ratio Juris, 32(4) (2019): 439-454.
30.  Masechet Megillah 23a.
31.  Rabbi Aryeh A. Frimer, “Women’s Megilla Reading,” http://www.daat.ac.il/daat/english/tfila/frimer2.htm
32.  R. Cohen-Almagor, “Fifty Years of Israeli Occupation”, E-International Relations (October 14, 2017), http://www.e-ir.info/2017/10/14/fifty-years-of-israeli-occupation/
33.  R. Cohen-Almagor, “Parameters for Two State Solution”, Palestine-Israel Journal, 21(2) (2015): 112-119, and “Creating a New Road Map for Resolving the Israeli-Palestinian Conflict”, E-International Relations (December 26, 2014), http://www.e-ir.info/2014/12/26/creating-a-new-road-map-for-resolving-the-israeli-palestinian-conflict/
34.  Raphael Cohen-Almagor, “Israeli Democracy and the Rights of Its Palestinian Citizens”, Ragion Pratica, 45 (December 2015): 351-368.; Just, Reasonable Multiculturalism (New York and Cambridge: Cambridge University Press, 2021): chap 10, and Raphael Cohen-Almagor and Mohammed S. Wattad, “The Legal Status of Israeli-Arabs/Palestinians”, GNLU Law & Society Review, 1 (March 2019): 1-28; Ilan Peleg and Dov Waxman, Israel’s Palestinians (New York: Cambridge University Press, 2011).
35.  Yuval Elbashan, “This is how revolution looks like: 141 law proposals to change governance”, Ynet (March 25, 2023) (Hebrew).
36.  Roger Cohen, “Slaughter at a Festival of Peace and Love Leaves Israel Transformed”, New York Times (October 15, 2023). 
37.  Cassandra Vinograd and Isabel Kershner, “Hamas Took More Than 200 Hostages. Here’s What We Know About Them”, New York Times (October 19, 2023).
38.  “The Israel-Hamas war’s devastating toll, by the numbers”, AP News (October 7, 2024),https://a pnews.com/article/israel-palestinians-hamas-war-anniversary-statistics-e61765035c725b3c8d4840e2bab565cd; Lilach Shoval, “One year into the war – full figures: More than 15,000 terrorists eliminated, 728 IDF dead since October 7”, Israel Hayom (October 7, 2024) (Hebrew), https://www.bing.com/search?q=google+translate&qs=n&form=QBRE&sp=-1&ghc=1&lq=0&pq=google+translat&sc=10-15&sk=&cvid=E22305AD913F45C2886D7247178D125F&ghsh=0&ghacc=0&ghpl=  
39.  Ilan Peleg and Dov Waxman, Israel’s Palestinians (New York: Cambridge University Press, 2011); Kais Nasser, Severe Housing Distress and Destruction of Arab Homes: Obstacles and Recommendations for Change (Dirasat, February 2012); Talya Steiner, Combating Discrimination against Arabs in the Israeli Workforce (Jerusalem: Israel Democracy Institute, 2013, Hebrew); Yousef Jabareen, “Two Kinds of Equality: Toward Critical Transformative Theory in Israeli Adjudication,” Public Space,  7 (2013): 37-65 (Hebrew); Alice Wood, “Israel’s Arab Citizens,” Fathom, Issue 1 (Winter 2012/2013); R. Cohen-Almagor (ed.), Israeli Democracy at the Crossroads; Baruch Kimmerling and Joel S. Migdal, The Palestinian People: A History (Cambridge, Mass.: Harvard University Press, 2003); Frances Raday, “Self-Determination and Minority Rights,” Fordham International Law J.,  26(3) (2002): 453-499; Ruth Halperin-Kaddari, “Women, Religion and Multiculturalism in Israel,” UCLA J of International Law & Foreign Affairs, 5(2) (2000-2001): 339-366; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview Press, 1987); Ian Lustick, Arabs in the Jewish State: Israel’s Control of a National Minority (Austin: University of Texas Press, 1980); R. Cohen-Almagor, “Coercion by the Orthodox Minority in Israel”, in Francois Boucher and Jean-François Caron (eds.), Multicultural Citizenship: Legacies and Critiques (London: Routledge, 2024), chap. 5.