Israel: A Country With No Fixed Borders and an Incomplete Constitution

What’s so special about Israel? Is it truly—as Israelis themselves claim—a one-of-a-kind country?

I would be careful with making statements like that. Labeling something as “one-of-a-kind” doesn’t bring us closer to understanding it. It’s true that some Israelis stress that the challenges their country faces are unique and not really comparable to anything else in modern times or in the past. Religion, history, morality, international law, security—in each of those areas, Israel apparently transcends standard categories and classifications. Proponents of its uniqueness emphasize this point and try to sell the idea that “Israel can’t be compared to any other country.” To them, this implies a need to treat Israel separately in the international arena, coupled with a range of special considerations. This is evident in Israel’s interactions with the Western world. On one hand, the government highlights shared values and points out that Israel is the only democracy in the Middle East, on the other, due to regional politics and Jewish identity, it can’t be just a “standard” democracy like those in Europe or North America.

Israel is undoubtedly a country with a very rich history, with one foot firmly planted in its biblical past, and the other in modern, uncompromising, decidedly secular politics. The survival of the Diaspora over the centuries was made possible by a religion whose origins date back to the second millennium before Christ. In contrast, the establishment of the Jewish state was attainable owing to the 19th-century, thoroughly modern, Zionist movement. The Jewish people founded a nation in a land inhabited by Arabs, aiming to welcome Jews from across the globe, which has led to a remarkable societal diversity within today’s Israel. These factors, among many others, are responsible for the many indisputably unique traits of this place. Within its borders, defined domestic law is followed, similarly to any other country. But on closer examination you’ll find out that there is still no consensus on many of the fundamental issues. Israel is not sure if it even has a constitution. It is also not sure of its own borders and purposefully stays vague on the matter. Its nature is also debatable: is it a secular or a religious state? Does it adhere to ethnic principles or civic principles? All of those points remain unresolved.

Let’s delve deeper. Why is Israel unsure if it has a constitution?

When Israel proclaimed independence in 1948, there was an assumption that it would soon have its own constitution in the form of a consolidated legal act. It became apparent early on that reaching any consensus on the document’s text would be challenging. This realization led to the endorsement of a rule in 1950, stipulating that the constitution would be adopted “piece by piece.” The Knesset was to pass subsequent chapters as separate acts, and one day they would make up the Israeli constitution. This legislative process is still ongoing. Each chapter is called the Basic Law. Currently, there are fourteen of them. The last one was adopted in 2018.

You might ask if the Basic Laws of Israel have a higher normative status than other legal acts. Formally, they don’t—they are voted through with a majority of votes, and a qualified majority isn’t required for amendments. No provision exists stating that these constitutional chapters carry more weight than any other laws. However, in 1995, the Supreme Court worked out an interpretation under which the Basic Laws take precedence over other legal acts; therefore, every newly enacted law must be congruous with the Basic Laws. The Supreme Court holds the authority to ensure this congruence. The doctrine was not accepted by a significant number of Israeli politicians, who perceived the Court’s decision as an act of usurpation. Recent mass protests in Israel against the intentions of Benjamin Netanyahu’s government to curb the Supreme Court’s influence stem directly from the coming to power of political forces eager to limit the Court’s authority, especially its capacity to interfere with the laws passed by the government. Ultimately, the structure and hierarchy of Israel’s paramount legal instruments remain ambiguous.

The issue with its borders is even more complicated.

What do you mean?

In Europe, we automatically assume that a country has to have clearly defined borders. Similarly, we might imagine that Israel’s borders extend as far as they did after the 1948 Palestine war, known to Israelis as the War of Independence. However, Israel contends that its territory encompasses East Jerusalem and the Golan Heights, areas occupied during the Six-Day War in 1967 and later formally annexed, even though this was never endorsed by most nations of the world. Then you have the Jewish settlements and footholds on the West Bank of the Jordan River, also seized during the Six-Day War. From Israel’s point of view, the West Bank (also known domestically by its administrative designation, Judea and Samaria Area) is not an occupied territory but rather a contested region with an ambiguous status, under general military and partial administrative control of the authorities in Jerusalem. Approximately half a million Jews reside there. While the Jewish settlements on the West Bank haven’t been formally annexed, they are de facto enclaves of the Jewish administration. They are protected by the military and incorporated into Israel’s infrastructure. Residents there can participate in Knesset elections, and the living conditions are similar to those typically found in Israel. In essence, these areas operate as if they’re an integral part of it. We might conclude that the Jewish authorities and the international community define the territory of Israel in a different fashion, and the real shape of its borders is something else entirely.

Establishing the population of Israel is also not something pure and simple. We know that it consists of 9.7m people: over 7m Jews and almost 2m Arabs. Of the latter, 1.6m are citizens, while 350,000 are permanent residents of the annexed East Jerusalem. These residents have the right to stay in the country, move freely, and work. However, they have no voting rights, and their right of stay might be revoked in specific circumstances.

What’s the reason behind this?

It was a political decision. After annexing East Jerusalem, Israel wasn’t keen on increasing the number of its Arab citizens. Many Arabs don’t hold citizenship. Meanwhile, Jewish people living de jure outside the state’s borders, on the West Bank, do enjoy citizen status. As you can see, the traditional definition, where a country is an authority that governs its people within a defined territory, has limited use here.

Is the role of religion in Israel similarly vague?

Indeed, it is. Israel is not a religious state, only a few legal acts derive straight from the tenets of Judaism. However, an unwritten pact has been in place since Israel’s inception, allowing religious institutions to oversee certain aspects of life, such as marriage, divorce, funerals, and conversion to Judaism. Another interesting topic is the observance of the Sabbath. Although Israel remains a secular state, public transport across most of the country halts operations on this day. The only exceptions are the metropolitan Tel Aviv and Haifa, where special “Sabbath-dedicated” bus lines are active on this occasion. The subject of religious ban on transport during the Sabbath continually sparks debates. Some time ago, the first light rail line was set up in Tel Aviv, partially underground, partially overground. Despite the fact that Tel Aviv is almost exclusively a secular city, this light rail will not be operational during the Sabbath, because it comes under the Ministry of Transport, and they hold the opinion that public transport should not function during holidays.

Examples from topics like constitution, national territory, population, or the role of religion clearly indicate that Israel grapples with many foundational questions. It’s like the country is still under construction and trying to decide what kind of a state it really wants to be. In Israel, depending on who you ask, you might get answers as different as chalk and cheese.

What’s the reason for this ambiguity regarding fundamental state functions? Is it due to a diversity of opinions within the society?

The Jews who settled in British Palestine represented a vast array of world views. They came to the Land of Israel—a region that, according to their beliefs, was bestowed upon the Jews by Yahweh—from all over Europe. With them, they brought an extraordinary amalgamation of orientations, traditions, doctrines, and opinions. To ensure the unified support of all Jewish communities in Palestine for the declaration of independence, some details were left intentionally ambiguous. Secular Jews would be lost in a religious state, just as devout Jews would be in a radically secular state. Resolving some foundational concerns was postponed for a time when the country would grow stronger and be more well-defined.

Do you think that these issues will be addressed in the near future, or perhaps sometime later?

It’s hard to give a conclusive answer to that question. On one hand, Israelis are very capable when it comes to managing this vague model. They can come up with pro tem solutions that allow the country to operate smoothly and society to maintain relative cohesion. However, it’s becoming clear that solutions from the past are becoming less effective, and the lack of formal resolutions for certain matters is proving more and more problematic. David Ben-Gurion—the leader of the Zionist movement, one of the founders of Israel, and its first Prime Minister—thought nothing of the concessions for ultraorthodox Jews. As a leftist, he believed that religious conservatism is just a relic from the past. For him, it was obvious that the old world had to go away—vanish under the pressure of modernity. Nothing of the sort happened. On the contrary—the strictly religious part of the population has been steadily growing. Nowadays, it is estimated that roughly 10% of the population identifies as ultra orthodox. Given current growth rates, in 20 years ultra orthodox Jews may account for up to 25% of the populace. For years, the majority of people in Israel consisted of Jewish patriots, even nationalists, but predominantly non-religious folks. It was clear who held the power and made the rules. Thus, formal resolutions to many of the questions about the shape of the country were seen as unnecessary. The change of the population ratio between secular and religious (or even ultra orthodox) Jews challenges the previous consensus.

Israel was created mostly thanks to the efforts of the European Jews, the Ashkenazis. For many years, they played a central role in public affairs, while the Sephardic and Mizrahi Jews always remained in their shadow. Over the course of the last few decades, this dynamic has shifted drastically. Now, Jews arriving from Middle Eastern and Maghreb countries form a significant part of the electorate and have profound impact on Israel’s trajectory. When Ashkenazi Jews of European ancestry were in control, the framework for functioning of the state was more or less decided on. Today, as new social groups gain prominence, divergent views have become more pronounced, making it difficult to forge a consensus that satisfies the majority of political forces and the broader populace. The rising influence of religious groups, combined with the efforts to remove a safeguard from the system—the power of the Supreme Court to annul any decision of the government found “irrational” by the judges—essentially prioritizing political agendas over the public good, led to widespread, spontaneous protests in Israel. While demonstrators took to the streets in defense of the rule of law and democratic values, they were also driven by concerns about the future where the most right-wing and religious government in the history of Israel might get rid of the Supreme Court’s authority to act like an emergency brake.

So, what could really happen? What are the concerns of the secular part of the society?

As I have previously mentioned, in Israel, certain facets of life—like marriage, divorce, funerals—already prove problematic for some people. This seriously displeases the left-wing or moderately religious Israelis, who still constitute the majority of the population. Many people find themselves facing noticeable difficulties. For instance, plenty of immigrants from the former Soviet Union—of whom over a million came to Israel—can’t get married by a rabbi as they are not formally recognized as Jews.

How so?

There’s a difference between recognizing somebody as a Jew based on religious criteria and based on Israeli citizenship requirements. The so-called Law of Return allows anyone with at least one grandparent of verified Jewish descent to obtain Israeli citizenship. The side of the family is irrelevant—it can be either the grandmother or the grandfather. The immigrants from the USSR usually were able to prove their Jewish roots, although there were instances of forgery and misconduct. Nonetheless, not every person who is qualified to arrive in Israel and receive citizenship is recognized as a Jew. Because there is effectively only one definition of Jewishness—a religious one. A Jew is someone who was either born to a Jewish mother, or converted to Judaism. The latter is rare in Israel since only orthodox conversions are accepted, and these are particularly rigorous. Because of that, there are hundreds of thousands of people living in Israel who came there on account of having a Jewish ancestor, but they are not Jews in a religious sense and this impacts certain aspects of their life. They serve in the army, they pay taxes, they vote—for the most part, they have the same rights as everybody else—but they are not Jews. This becomes a problem when it comes to marriage, divorce, or funerals. And it’s not just immigrants from the former USSR voicing discontent; frustration is growing among the secular segments of the population. Their representatives want to know why religious laws should regulate marital matters in a secular state.

The Sabbath is also another source of controversy that I have already mentioned. The wrangling over the issue of adhering to the Sabbath in public spaces is similar to a tug-of-war. The outcome largely depends on who runs the given city or district: religious parties, or secular parties. If secular parties are at the helm of a local government—public transport, cinemas, restaurants and shops are free to operate on the Sabbath. If it’s the religious side that deals the cards—streets during the Sabbath fall silent. As the number of orthodox Jews grows, secular Jews feel their pressure, and view them as a threat to their own way of life. A common pattern has emerged: a handful of orthodox families move into a secular neighborhood and expect the local authorities to alter the rules of the place to fall in line with their religious customs. Secular Jews often emphasize the assertiveness and expansionist tendencies of ultra orthodox communities.

In this context, another important matter is the case of military service in Israel, obligatory both for men and women. However, ultra orthodox women are exempt from the service seemingly “by definition,” and ultra orthodox men are in no hurry to enlist in the army either. Year after year, their conscription is deferred on the grounds of ongoing religious education, and eventually they stop receiving call-up papers. This is just another example of the improvised arrangements in Israel. There is no legal act exempting ultra orthodox men from military service as long as they study in yeshivas (Talmudic collages for unmarried students—ed.), or other schools. Their draft deferments often result from administrative decisions and departmental circular letters. Although this issue has long been debated, discussions have recently reached a boiling point as ultra orthodox parties—having grown in power and political influence in the last few decades—now demand a blanket exemption of their community from military service added to relevant legal acts. The rest of Israeli society finds this request outrageous and opposes this proposed inequality. They are perplexed by the idea that one part of the society should carry the burden of defending the homeland on their shoulders, while the other is absolved from this duty. It doesn’t stop here though, as ultra orthodox politicians are convinced that the Haredim (“the ones who tremble at the word of God”) should also be exempt from alternative civilian service. This idea is also met with tremendous opposition. Many Israelis accuse ultra orthodox Jews of being an albatross around the country’s neck but at the same shirking from any responsibilities towards it. Meanwhile, the Haredim find these critiques quite absurd, as a great deal of these conservatives do not even recognize modern Israel as a Jewish state. They await the Messiah, who they believe will restore the true biblical Jewish realm. Historically, representatives of the United Torah Judaism party have at times declined cabinet positions, as this would mean accepting the State of Israel in its current form.

Parts of Israeli society fear the erosion of the present-day order and worry that Israel will change its direction towards something that is not acceptable for them. The salt of the earth in contemporary Israel—the secular and moderately religious people, nation-minded but not radical, who pay taxes, serve in the military and send their own children for service—have long felt that they are losing control of their own country.

Are there any values or institutions in Israel that are not the subject of arguments? That are not contested?

The recent severe political crisis in Israel, spurred by decisions concerning the Supreme Court, has made Israeli people feel that there are fewer and fewer inviolabilities. Even the army, which enjoys a position of an indisputable social endorsement, has been embroiled in this sticky situation. The Israel Defense Forces consist of 187,000 active service members and about 445,000 reservists. These reservists are a pivotal component of the army, fully integrated into its structure. No longer active soldiers, they continue to undergo training, honing skills essential for combat. During the anti-government protests, every now and then a group of reservists would announce that they would not turn up for training. For opposition forces, it was undeniable proof that a plot against the Supreme Court might lead to destruction of the country. For exponents of judicial reform, these dissenting reservists were labeled as outright traitors. Suddenly, it became apparent that political discord was targeting something that was once perceived as untouchable—the armed forces that had fought in several victorious wars and guaranteed the safety and survival of the country. Prior to this, the army in Israel had consistently steered clear of political conflicts.

From an external perspective, it seems that all Israelis are united by a common understanding of the perils of the situation. They recall consecutive wars with Arab League members and are aware that peace treaties have been signed with only two neighbors: Jordan and Egypt. It’s peace, but it’s more of a “cold peace.” The relationship between Israel and these two nations is hardly cordial, given the very limited mutual communication. Syria, in contrast, does not recognize Israel at all, and the same goes for the State of Libya, increasingly under the influence of Hezbollah—a radical Shia organization supported by Iran. As for Iran, it is actively researching nuclear weapons and openly proclaims its intention to destroy Israel. Israelis realize that in the event of an invasion all of them will share the same fate, regardless of any differences between them.

Another factor holding together the majority of Israeli society is the belief that Israel is a country with a Jewish ethnic majority, and it should stay that way. Israeli Arabs—descendants of the people who remained in the region following the Jewish War for Independence—have established their own organizations and political parties, but they often complain about being treated like second-class citizens with worse access to education, health care, and housing. There is some truth to it. While individual Jewish parties obviously vary in their stance toward the Arab population, aside from a few fringe post-Zionist entities, all major political powers agree that Israel should remain predominantly Jewish, both culturally and ethnically.

This belief is at least partially fueled by the memory of the Holocaust. The Shoah stands as a cornerstone of a social and political consensus. If anybody—even from foreign countries—tries to relativize or downplay the Holocaust, they are met with unanimous, cross-party condemnation. For Israel, the Holocaust is a trauma that resonates both individually and collectively, still vivid even two or three generations after the harrowing event. It also serves as a cautionary tale, reminding people that the threat of physical extermination of almost an entire nation in the case of Jews is more than just a concept. The Shoah is the foundation of the identity of the Jewish state and the Jewish people. A strong and capable Jewish country exists to prevent this tragedy from happening ever again, and to provide every Jew a safe haven within. Every Jewish citizen of Israel would agree with that statement. There is no question that the memory of the Shoah brings Israelis together. But a lot of the issues we have mentioned threaten to push them further and further apart.