Amid War, the Constitutional Dilemma for Israel

Israeli Supreme Court justice talks about the country’s dueling identities

Israeli Supreme Court Justice Daphne Barak-Erez told a Duke audience that her country is confronted with a constitutional dilemma.

But amidst the country’s tragic conflict with Hamas, its dueling identities – Jewish nation and liberal democracy – may represent the best hope for moving forward, she said.

“Can a Jewish state be democratic? And alternatively, can a democratic state be Jewish?” Barak-Erez asked during her March 28 lecture, “Jewish and Democratic State: Constitutional Foundations,” at the Rubenstein Library’s Holsti-Anderson Assembly Room.

Barak-Erez’s appearance at Duke was sponsored by Duke’s Center for Jewish Studies as part of Provost Alec D. Gallimore’s

Barak-Erez delivered her hour-long speech against the backdrop of a military initiative by the Israeli Defense Force in the Gaza Strip following the October 7 surprise attack in Israel by Hamas militants who killed more than 1,130 people and took 250 hostages.

Israeli bombs have killed more than 30,000 people in response, leading to calls from around the world for a ceasefire. Those calls were renewed this week when more bombing killed seven workers who were participating in Gaza relief efforts.

Upcoming Events in the Provost’s Initiative on the Middle East

Monday, April 8
6 p.m. Robert Satloff: “Out of Crisis, Opportunity? War and Peace in Post-Oct 7 Middle East.” 04 Sanford School

Monday, April 8
4:30 p.m. Dabke with Yaa Samar! Dance Theatre. Taught by Mohammed Smahneh and Zoe Rabinowitz. American Dance Festival Building, 721 Broad St., Durham

Barak-Erez was born in the United States to Israeli parents. Her family in 1966 returned to Israel where she studied law before returning to America as a post-doctoral visiting researcher at Harvard University.

A celebrated legal scholar, and member of the since 2012, Barak-Erez noted that the concepts of a Jewish and democratic state are the “inseparable twins” of Israel’s legal system.

She added that it isn't enough to define the system “merely as democratic,” owing to the country’s development being modeled from “the European political culture of nation states, along with the perspective of world history.

“As we know, Israel was founded as the country that will serve as a home for a national group, which almost got to extinction a few years earlier, during World War Two,” Barak-Erez said.

The high court justice said the “inseparable twins” of a Jewish state and democracy are found in the nation’s 1948 Declaration of Independence, that “makes crystal clear the newborn state is a democratic one.”

“But what is more important and relevant to my talk, is the commitments mentioned back then in the declaration [of the] protection of human rights to all of the country’s citizens and inhabitants, irrespective of origin or gender.”

Barak-Erez said that part of her “democratic understanding” has been the history of the Jewish people as a persecuted minority.

“I believe that for me, even before reading theoretical literature on democracy and minority rights, [from] my childhood, speaking with my grandparents, who [were] born in Europe, and [suffered] from antisemitism, I understood that the equal rights and the protection of minorities is something no healthy society can live without.”
Israeli Supreme Court Justice Daphne Barak-Erez

“I believe that for me, even before reading theoretical literature on democracy and minority rights, [from] my childhood, speaking with my grandparents, who [were] born in Europe, and [suffered] from antisemitism, I understood that the equal rights and the protection of minorities is something no healthy society can live without,” Barak-Erez said.

Israel does not have a full formal written constitution, but instead is guided by the “Basic Laws of Israel,” adopted in 1950 by the country’s First Knesset.

Barak-Erez said Israel’s Basic Law: that was enacted by the Knesset in 1992 is comparable to America’s Bill of Rights.

More broadly, the country is committed to maintaining gender rights, gay rights, and “a form of affirmative action” to promote “traditionally disempowered groups.”

Barak-Erez noted that the Israeli Supreme Court in recent years has reviewed several appeals of decisions by the country’s central elections committee which had disqualified candidates “based on what was described as extreme expressions against the State of Israel, and even empathy to terrorist organizations.”

“The court directly intervened in all these decisions of the central election committee and legitimized and allowed…full participation of all these candidates in the general elections,” she said. “By the way, interestingly, during the same years, a few Jewish candidates were disqualified [for] inciting racism and were not allowed to run for the general elections.”

Barak-Erez concluded her lecture by acknowledging indirectly the ongoing war between Israel and Hamas in Gaza.

“These are sad days of loss and agony,” she said. “As a judge, I am limited in addressing current events. Therefore, I will just say that in such times, the challenge of maintaining our identity – Jewish and democratic – is even more significant.”

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