A new book on its Declaration of Independence could hardly be timelier.
A new book on its Declaration of Independence could hardly be timelier.
Israel’s Declaration of Independence: The History and Political Theory of the Nation’s Founding Moment, by Neil Rogachevsky and Dov Zigler (Cambridge University Press, 300 pp., $39.99)
T he Israeli Declaration of Independence is historically significant, though historians have long held that it was not intended to be a foundational text of political theory. Unlike America’s renowned Declaration of Independence, which lays out a detailed philosophical argument for self-governance, republicanism, and natural rights, Israel’s has long been seen as little more than a pragmatic statement of intent. Even David Ben-Gurion, Israel’s preeminent founding father, who served as the county’s first prime minister and authored the final draft of the document, assumed that it would not be studied by future generations. And so the principles articulated in the Declaration have not been thoroughly examined — until now.
In their new book, Israel’s Declaration of Independence, Neil Rogachevsky and Dov Zigler explore the history and political theory at the heart of the nation’s founding moment, rigorously analyze the founding document, and explain that it may have just as much to say as its American forebear. They begin by setting the stage with a dramatic telling of the tumultuous events leading up to Ben-Gurion’s announcement of the establishment of the new state. On November 29, 1947, nearly six months before the proclamation, the U.N. General Assembly adopted Resolution 181, voting to partition the land of Mandatory Palestine into separate Jewish and Arab states and to create a special international regime for Jerusalem. The plan stipulated that the British, who had occupied the land since the end of World War I, would leave no later than August 1, 1948, and that new states would come into being two months after the withdrawal but no later than October 1, 1948. None of this came to fruition.
Jewish organizations cooperated with the United Nations, but the Palestinian Arabs boycotted the process and initiated attacks on Jewish civilians in what ultimately became the preliminary stage of the Israeli War of Independence. The British extricated themselves from the escalating violence at midnight at the end of the day of May 14. Aware of an imminent invasion by the neighboring Arab armies, Jewish leadership declared independence earlier that day.
Rogachevsky and Zigler go to great lengths to debunk the notion that the Declaration was some impromptu fly-by-night charter. They describe how, in the weeks leading up to the announcement, a series of drafters endeavored to capture the gravity of the moment while presenting a vision for the new country.
The first to have a go at drafting the Declaration was Mordechai Beham. As a staffer in the Legal Department, he was assigned the task by Felix Rosenblüth, the future state’s first justice minister. Beham wrote his draft with the Anglo-American tradition in mind. He attempted to define the nature of the Jewish state by providing a philosophical justification for its existence, synthesizing the seminal texts of the Jewish tradition with the political thought embedded in the American Declaration of Independence, grounding his argument in the discourse of natural rights.
Through Beham, the authors demonstrate the intellectual links between the American and Israeli founding. The declarations of independence of both countries were imbued with the notion that rights are not contingent on laws, customs, or beliefs but rather apply to all humans, irrespective of time or place. While Beham’s essential points regarding the origination of rights were not initially adopted by subsequent drafters, his natural-rights philosophy permeated the conversation surrounding the Declaration’s composition and would reemerge in Ben-Gurion’s final draft.
The next person to take a crack at it was future Israeli supreme court jurist Zvi Berenson. Unlike Beham, Berenson believed that “the right of labor takes the place of the natural right of individuals as the source of legitimacy for the national enterprise.” Although the emphasis on the importance of labor and collective enterprise over individual rights and interests is ostensibly socialist, Rogachevsky and Zigler note that, in its assertion that cultivation of land constitutes ownership of it, Berenson’s arguments seem to have been “torn from John Locke in his Second Treatise.” Thomas Jefferson, the principal author of the American Declaration of Independence, was famously influenced by Locke’s social-contract theory. Berenson’s draft is another instance of the Israeli founding fathers apparently drawing inspiration from their American forerunners.
The next drafter, Herschel Lauterpacht, was overly reliant on internationalism, according to Rogachevsky and Zigler. An expert in international law, Lauterpacht was taken with the Kantian notion of “perpetual peace,” a hypothetical state of affairs in which war would cease and all interstate conflicts would be resolved through diplomacy. Multinational organizations would play an outsized role in mediating international relations. In an effort to comport the Declaration with this vision, Lauterpacht in his draft imagined a state subject to international law under a global confederacy. His draft was roundly rejected.
The final man to take a stab at it, Moshe Sharett (born Shertok), Israel’s second prime minister, fell prey to a similar temptation. Hyper-cognizant of the initial skepticism, in Washington and especially the State Department, that Jewish sovereignty in Palestine could be realized, Sharett attempted to please the powers that be by hewing close to the terms of Resolution 181. Rogachevsky and Zigler are critical:
Shertok’s meticulous efforts to satisfy the preexisting criteria betray a lack of understanding of the fundamentally disruptive character of founding of the state—or indeed of any state. The act of founding requires not indeed ignorance, but deliberate disregard, of some crucial established modes of operation. In the founding of the state, the only modes that mattered would be created by the state. In the ordinary course of politics, hewing to established norms and laws is essential. But at moments of sovereignty, the crucial decisions stand outside the established orders.
Spurning the drafts by Lauterpacht and Sharett, the Zionist leaders of the Yishuv showed themselves willing, much like the American Founders, to forsake international approval in their pursuit of the goal of statehood.
Ben-Gurion’s final draft “can be seen as the culmination of a communal drafting process—a story of collaboration to create a seminal text in Jewish history,” Rogachevsky and Zigler write. Earlier drafts stressed different priorities. Differences in the arguments for statehood can be seen in the respective drafts by Beham and Ben-Gurion. Both acknowledged that government safeguards, not bestows, the natural rights common to all humans. Berenson, Lauterpacht, and Sharett believed that individual and collective rights are derived from other sources. Only Ben-Gurion emphasized the “natural and historical rights” of the Jewish people in particular. The Israeli Declaration of Independence was the product of a weekslong debate that could have set the country on any one of many wildly divergent ideological paths.
The authors conclude with a discussion of the current legal status of the Declaration in Israeli law. This conversation couldn’t be timelier. Since January, Israel has been wracked by protests over a series of reforms that the prime minister wants the Knesset to make to the judicial system. The roots of this controversy stem from the text of the Declaration of Independence and the ambiguities of Israeli constitutional law. The Declaration explicitly called for “the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.” Owing to the ongoing War of Independence, the Constituent Assembly elections were not held until January 1949. This body, which almost immediately renamed itself the “Knesset,” never got around to inaugurating a constitution. Instead, over decades, the Knesset opted to enact “Basic Laws,” as they are called, a series of quasi-constitutional laws based on the individual liberties outlined in the Declaration. In the 1990s, in what has become known as the “constitutional revolution,” the Israeli supreme court unilaterally declared that the Basic Laws formed a formal (though incomplete) written constitution and granted itself the power of judicial review over parliamentary legislation.
The aim of the proposed reforms is to reduce the judiciary’s power by restricting the supreme court’s ability to conduct judicial review, affording the government greater control over judicial appointments, and curbing the authority of its legal advisers. Supporters of the reforms maintain that they would curtail judicial overreach. Opponents argue that the reforms would undermine liberal democracy by removing the counter-majoritarian checks on the power of the current governing coalition. After weeks of mass demonstrations and opposition by many political and even military leaders, the legislative blitz to pass the reforms has been paused for spring recess but is expected to return to the top of the agenda when the Knesset reconvenes. Many are now concerned that talks sponsored by President Isaac Herzog to reach a consensus on judicial reform may collapse. With each passing day, Israeli political stability is further jeopardized.
At this fraught moment, we would do well to revisit the Jewish state’s founding and study what the country’s forefathers envisioned for the nation. The Declaration emphasizes the principles of freedom and equality, which are frequently invoked in conversations surrounding judicial reform. Rogachevsky and Zigler are helpful guides to the early debates that shaped the country’s political culture, providing insights into the core values and principles that underpin Israeli democracy and the role of the judiciary within it. A careful reading and consideration of this book could help illuminate a potential path out of the present quagmire.