In the hullabaloo over the new Nation-State Law (see here, here and here), some people say the new Basic Law should have repeated certain parts of what is in the Declaration of Independence. I decided to check out the Declaration for myself and was surprised by some of what I read there. I thought it merited an article all on its own, therefore, so I copied it from the Knesset website, pasted it below, and added my own notes. This is followed by an analysis of the Declaration and a concluding note relevant to Israel today.

Provisional Government of Israel

Official Gazette: Number 1; Tel Aviv, 5 Iyar 5708, 14.5.1948 Page 1

The Declaration of the Establishment of the State of Israel

[table id=2 /]

Signed:

David Ben-Gurion

Daniel Auster Mordekhai Bentov Yitzchak Ben Zvi Eliyahu Berligne Fritz Bernstein Rabbi Wolf Gold Meir Grabovsky Yitzchak Gruenbaum Dr. Abraham Granovsky Eliyahu Dobkin Meir Wilner-Kovner Zerach Wahrhaftig Herzl Vardi Rachel Cohen Rabbi Kalman Kahana Saadia Kobashi Rabbi Yitzchak Meir Levin Meir David Loewenstein Zvi Luria Golda Myerson Nachum Nir Zvi Segal Rabbi Yehuda Leib Hacohen Fishman David Zvi Pinkas Aharon Zisling Moshe Kolodny Eliezer Kaplan Abraham Katznelson Felix Rosenblueth David Remez Berl Repetur Mordekhai Shattner Ben Zion Sternberg Bekhor Shitreet Moshe Shapira Moshe Shertok

An Analysis of the Declaration of Independence

In 1998, former Attorney General and Supreme Court Judge Elyakim Rubenstein wrote a paper analyzing the Declaration of Independence 50 years after the establishment of the modern State of Israel. (You can read the entire article online at no cost here.) I will only raise a few points here.

Rubenstein discusses differences in opinion among those involved in putting together the Declaration. He suggests that Ben Gurion walked a tightrope among those with opposing views, wanting to achieve what was possible to achieve at the moment, rather than achieve nothing (such as by accepting partition and by leaving out of the Declaration certain issues, such as that of borders.)

When the question arose regarding whether or not something was legal, Ben Gurion’s response is so relevant to us today as we struggle over the conflicts between the legislative and judicial branches of government:

Ben-Gurion: Law is a matter that human beings decide. [page 197]

Rubenstein explains:

Due respect is given to international law, but political considerations were seen as being within the jurisdiction of democratically-
elected officials. [page 197]

Then Rubenstein asks:

A more interesting and practical question, one that has legal implications, is the status of the Declaration in Israeli courts. Is it equivalent to a Constitution, or is it a only an historical proclamation? Does it have the authority to entitle freedom of religion, conscience, speech, education, and culture? Is it a recognized force in Israeli courts for granting equality to every citizen regardless of religion, race, or gender? Can the Declaration be considered a bona fide source upon which to interpret the law? What is the meaning of the “positive anchoring” of the Declaration’s principles in the “Basic Law: Human Dignity and Liberty,” and the “Basic Law: Freedom of Occupation”?

The Declaration itself did not pretend to act as a constitution. [page 198]

Rubenstein claims that the courts, when presented with situations that could be interpreted in a number of different ways, preferred to make decisions that corresponded to what they believed conformed with the principles laid down in the Declaration of Independence. In this way, the Declaration of Independence is a living document, one that is coming alive in the growing collection of Basic Laws that it has inspired.

With the growing divisiveness of our society, where individual rights have moved far ahead of collective rights, Rubenstein sees hope in the Declaration of Independence:

The Declaration of Independence, to the eternal foresight of its designers, first and foremost among them Ben-Gurion, can serve, and perhaps with greater force, as a national unifier, because it is based on moral values with which the vast majority of the country’s citizens identify. These include equality, freedom of religion and conscience, and the rest of the basic human rights. The collective experience of a melting-pot through which the State of Israel was established; the continual effort to arrive at peace with the neighbors; the bonds between Eretz Israel and the Jewish people in the Diaspora; and the Jewish people’s rights to its own country replete with cultural treasures, a pioneering ethos, the common endeavor in shouldering the burden; the courage; the tenacity in achieving national goals... [page 205]

It is important to remember that Ben Gurion and other leaders in 1948 were focused on the struggle for survival and independence of the collective. After only a few generations of Israelis were born into this free sovereign nation, attention turned toward individualism. The fact that a consensus was achieved, at that early stage, balancing, in the Declaration of Independence, between collectivist national concerns and individualistic civil rights concerns is one Rubenstein finds admirable. In this respect, however, Rubenstein identified a lacuna:

But when all is said and done, the state is a Jewish, democratic state in all respects, without defining precisely the meaning of “Jewish.” [page 207-8]

And we still cannot agree on what it means to be Jewish!

A Lesson the Declaration of Independence Holds for Us Now

Not much time was available to our leaders to put together the Declaration of Independence. A way had to be found to quickly compose a document that would be agreeable to all in spite of their strong disagreements with each other. With survival on the line, they did it. Unfortunately, we are a nation still in survival mode because of very real external and internal threats. But we are also in trauma mode because we have not yet had the time to resolve our individual and collective traumatic pasts. This means that we do not always operate with calm rational thought processes. I am referring to the political and judicial leadership, but also to society at the level of the general population. This leads to the situation pointed out by Rubenstein in which our Basic Laws

were formulated in a clumsy convoluted way. [page 406-7]

We cannot afford to continue to function in this manner. The latest uproar over the Nation-State Law shows us that. The Declaration of Independence spoke to internal characteristics of the new State as well as to external realities. The authors of the Declaration did not ignore the context in which they found themselves. Our government, and all of us, in fact, must also keep in mind our internal and external contexts in all its permutations.

We are a work in progress. I suggest everyone take a deep breath and show patience toward one another as we continue to develop as the amazing nation that we are. And let us never stop debating in our loud and brusque manner. It is one Israeli characteristic I particularly appreciate, hard as it is to take sometimes.

Does Israel have a constitution? Elyakim Rubenstein Israel's Basic Laws Israel's Declaration of Independence

Last modified: December 11, 2025