Overall Chronology

The document known as “The Declaration of the Establishment of the State of Israel ,” read out by David Ben-Gurion during the meeting of the Zionist leadership in Tel Aviv on 14 May 1948, remains the most important document that all currents of the Zionist Movement agreed upon. The State of Israel never ratified any constitution to take its place in the years that followed, and no other piece of constitutional legislation garnered the same unanimous consensus. Given the political, legal, and historical status of this document, we examine its context, content, and status as a foundational moment whose impact is still palpable today in legislative debates and judicial rulings in Israel. What it deliberately omits is also significant and will be explored as well.

The Drafting of the Declaration

On 29 November 1947, the United Nations General Assembly passed Resolution 181, addressing the termination of the British Mandate over Palestine and the proposed partition of the latter into a Jewish state and an Arab state, with special international status for the city of Jerusalem . This triggered a series of earnest preparatory measures on the part of the Zionist movement at the legal, political, and diplomatic levels—in addition to the military and mobilization levels—to decide how to deal with some of its provisions. For instance, Articles 4, 9, and 10 in Part One, Section B [titled “Steps Preparatory to Independence”] stipulated that a “provisional council of government” be formed in each of the two prospective states, among whose tasks would be holding elections for a “constituent assembly,” which in turn was to draft a constitution for each state which should be democratic and guarantee equal rights to all.

The Zionist leadership at that time was composed of two connected bodies that overlapped with one another: the Vaad Leumi (National Council), which represented the Yishuv (the community of Jewish settlers in Palestine), and the Jewish Agency , which was the external and diplomatic arm of the Zionist movement and the purported representative of Jews across the world who supported Zionism . The agency had greater say in shaping policy because of its control over financial resources and its international connections. In December 1947, immediately after the passing of the General Assembly resolution, the agency entrusted the legal expert Leo Cohen with the task of composing a draft constitution of the Jewish state. In January 1948, Cohen submitted a draft (the first of eleven drafts of what was to ultimately become the text of the Declaration) that included a preamble, a section having to do with general constitutional provisions, and another section related to basic rights. Notably, this first draft copied verbatim the articles contained in UN Resolution 181 having to do with democracy and basic rights, on the assumption that the United Nations would oversee the implementation of the resolution in full, including the transfer of sovereignty to the entity being formed.

The initiative for writing the text of the declaration of the state remained in the hands of the Jewish Agency until 12 April 1948, when the Vaad Leumi and the agency decided to form a single, unified representative body of thirty-seven members called Moetzet Ha'am (the People’s Council), to be the bedrock for the transition to the new state. The council was to be formed on the basis of political affiliation, which would guarantee the widest possible consensus between the various currents of the Zionist movement. It was also decided that an executive body consisting of thirteen members called Minhelet Ha'am (the People’s Administration) would be formed out of the council; on 26 April, “ministerial portfolios” were distributed among its members. The creation of these two bodies was announced when it became apparent to the Zionist leadership that the UN would not play a role in their creation and that the Zionists could move forward with setting the stage to unilaterally declare the creation of the state as a fait accompli.

Thus began the second phase of writing the text of the declaration. One of the more significant drafts was the one worked on by Mordechai Beham , a legal expert in the judicial department of the People’s Administration, on commission by Pinchas Rosen , who held the Justice portfolio, and which was submitted on 27 April. After this date, discussion over the declaration was transferred to a three-member committee, and then to a five-member committee, until the final version—the one announced on the afternoon of 14 May—was agreed upon. David Ben-Gurion played a decisive role in determining what this draft did and did not contain.

The Content of the Declaration

It is useful to examine the identities of the signatories to the document that declared the establishment of the State of Israel. They were the members of the People’s Council (formed in the preceding month) who once again affirmed that they were “the representatives of the Jewish population of the country and of the Zionist movement.” In their dual representative capacity, they laid the foundation that allowed them to claim that the state would not only represent the Jews living within it, but also Jews anywhere in the world.

Members of the People's Council

Signatories of the Declaration of the Establishment of the State of Israel

* Some members belong to both the Vaad Leumi and the Jewish Agency. There are members who became part of the People's Assembly to represent their party or community.

The text of the declaration is divided into three sections. Any references to the United Nations will be discussed in a separate section.

The first section, the longest and most important part of the declaration, is historical–ideological in nature. It was approved unanimously. Its gist is that thousands of years of Jewish history affirm the link between “the Jewish people” and “the Land of Israel .” This land, so the declaration states, “was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained statehood, created cultural values of national and universal significance, and gave to the world the eternal Book of Books.” In the following paragraph, it erases the entire history of the Jewish “diaspora,” reducing it to the quest of Jews, generation after generation, to return to the “Land of Israel.” Thus, the document not only expunges the [Jewish] exile, but also expunges everything that Jews accomplished in their diaspora leading up to the eve of the Balfour Declaration .

The second section is operational, and its mode of address shifts to speaking in the [collective] first person “we.” The signatories of the document declare, in their representative capacity, the establishment of the Jewish state in “Eretz-Yisrael,” or the Land of Israel, and call it the “State of Israel.” They call for the establishment of the state’s authorities in accordance with the constitution, which an elected constituent assembly must adopt no later than 1 October 1948. They also declare that at the moment the British Mandate over Palestine ends (i.e., on the same night) and until the holding of elections, the People’s Council will turn into the Provisional Council of State, that is, the temporary legislative authority, and that the People's Administration would become the first provisional government of the new state.

The third part of the declaration takes up the future—the “vision of the founding fathers” of the state, as they are called in Israeli parlance. The paragraph begins by emphasizing that “the state of Israel will be open to Jewish immigration and for the ingathering of the exiles.” After asserting that the state is to be made exclusively for Jews, the declaration go on to say that the state “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” The document also claims to appeal to “the Arab inhabitants of the State of Israel” to participate in building up the state “on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.”

The Declaration’s Connection to the United Nations

When drafting the text declaring the state (and in finalizing their diplomatic moves), the Zionist leaders had to take into account the role of the UN, as embodied in Resolution 181 of its General Assembly (29 November 1947), and whatever subsequent interventions it would make. Accordingly, they sought to limit as much as possible the obligations imposed on them by the aforementioned resolution, while at the same time taking advantage of what it stated, especially concerning the objective of gaining admission to membership in the United Nations, as was promised in Section B (Part 1-f) of the resolution.

During the discussions on the declaration, David Ben-Gurion claimed that he had inserted in it the UN’s basic demands, but the content of the declaration does not support his claim. When referring to Resolution 181, the declaration states that the resolution “call[s] for the establishment of a Jewish state in Eretz-Israel,” but it completely ignores the other half of the same sentence in the resolution that calls for the establishment of an Arab state alongside the Jewish one. In other words, the declaration cherry-picked from this resolution only what granted international legitimacy to the establishment of a “Jewish state.” Implicitly alluding to the Zionist leadership’s fear that the UN would renege on the idea of partition (as expressed in the Trusteeship Plan for Palestine that the United States submitted to the General Assembly on 20 April 1948), the text of the declaration emphasizes: “This recognition by the United Nations of the right of the Jewish people to establish their state is irrevocable.” The declaration also disregards the question of the borders of the Jewish state as stipulated in the UN resolution. This disregard is consistent with the Zionist endeavor to occupy territories beyond the borders of the Jewish state as defined by the resolution. Earlier discarded drafts of the declaration had contained a commitment to the borders as defined by the resolution, yet this was deliberately omitted from the final draft of the text following lengthy debate.

In reference to the nature of the state, the declaration adopts whatever was stated in Resolution 181 concerning freedom, equality, and non-discrimination, yet without describing these as “democratic” values. Moreover, when addressing the question of drafting the state’s constitution, the declaration avoids reproducing what is stipulated by the resolution in Part 1 (Section B, Article 10), namely that the Constituent Assembly of each state must, after being elected, prepare a “democratic constitution” for its state. Although the definition of the state as “democratic” was included in one of the previous drafts of the declaration, Moshe Sharett, Israel’s first foreign minister, demanded that this descriptor be omitted, and members of the People's Council approved his demand without any discussion or justification.

Perhaps this omission of the term “democratic” from the declaration was due to the fear that it would grant the Palestinian Arabs who remained under Israeli rule a constitutional status equivalent to Jewish Israelis, which could create a contradiction with the nascent state’s identity as a Jewish state. In this context, the document’s disregard of Palestinian national identity, when it calls those who remained [inside the state] as merely “the Arab inhabitants of the State,” was a prelude to rejecting their status as an ethnic minority with collective rights and accepting them only as Arab individuals who could advance their way up the professional ladder and obtain rights as individuals.

In conclusion, it can be said that the declaration’s attitude toward Resolution 181 ignored the resolution on the question of borders, while at the same time deferred to it on the question of values of citizenship and equality (which would not come at a great cost to Israel after it forcibly expelled the majority of Palestinians). Yet Israeli practices concerning, in particular, borders (by ultimately occupying as much as 78 percent of the area of Palestine) and imposing military rule on those who were not expelled did not at all prevent the new state from being accepted by the United Nations as a member state in May 1949.

Statehood without a Constitution

Elections for the Israeli Constituent Assembly took place on 25 January 1949. The assembly held its first session on 14 February and decided to call itself “the First Knesset .” Its first task was supposed to be to draft the state’s constitution. But that did not happen for reasons both internal and external. Internally, the Orthodox religious currents within the Zionist movement did not want a constitution to be adopted at a time when the balance of power was tilted in favor of the secularists, who happened to be the founders of the state. Given that constitutions are enduring by nature, adopting one at this early stage would limit the possibility of altering it in the future and would impose on generations to come the existing balance of power in 1948. At the same time, given that one of the prime missions of the state was to draw Jews from all across the world to immigrate, it was claimed that it would be unwise to adopt a constitution without the participation of these hundreds of thousands of immigrants whose coming to Israel was hoped for. With regard to the geographical borders of the state, the Israeli leadership considered these borders temporary, given that the conflict over them was ongoing and that the Zionist project was as yet unfinished, even though Israel had occupied a large percentage of the territory of Mandate Palestine during the period when the constitution was being debated.

The assembly decided to forgot the constitution and, in its place, adopt a compromise known as the “Harari Resolution ,” named after Yizhar Harari , the Knesset member who sponsored it. This compromise stipulated that the constitution be drafted gradually through a series of distinct chapters that would be called “basic laws.” This put the legal status of the Declaration of the Establishment of the State under scrutiny. Was it above the constitution, since it had given elected bodies the task of drafting one? Or was it a constitutional document itself? The three parts of the declaration cannot be considered to have the same status; each must be looked at separately. Whereas there is no doubt that the first and second parts—the historical and the operational—are legally binding and constitute the authoritative legal reference for the “Jewishness of the state” and its institutions, the third part is the most problematic, especially since it contains reference to liberal “democratic” values (without naming them as such) but does not define the state as “democratic.” The potential contradiction between these values, particularly that of equality with the principle of the state as a Jewish one, placed the legal status of the third part of the declaration under scrutiny, and the Supreme Court and the Knesset have had to find a way to resolve it.

The Declaration, the Judiciary, and the Legislature

In the period between 1948 and 1992, the judges of the Israeli Supreme Court concurred that the Declaration of the Establishment of the State could not be treated as constitutional law that could compel the court to nullify or uphold legislation enacted by the Knesset. Instead, they saw it as an expression of the people’s vision and the spirit of the law. The positions of the court judges ranged from those who sufficed themselves with this minimal interpretation, to those who resorted to the principles contained within the declaration as guiding principles for interpreting laws when their provisions were unclear. It became common for the judges to hand down rulings where Israel was called a democratic state through citing principles from the declaration, despite the fact that the word “democratic” is not in the text and was in fact deliberately omitted from it with unanimous approval.

However, the greatest impact on the legal status of the declaration came in 1992, with the enactment of the two Basic Laws known as “Human Dignity and Liberty ” and “Freedom of Occupation .” Both mention the declaration, a first in the history of Israeli legislation; in the first article of both laws under the title “Basic Principles,” it is stated that basic human rights in Israel “shall be respected in the spirit of the principles that are part of the Declaration of the Establishment of the State of Israel.” This development came on the eve of the “political solution” with the PLO , accompanied by the general mood tending toward reconciliation and an increase in the margin of freedoms for Palestinian citizens of Israel. During the same period, “the constitutional revolution” took place, announced by Supreme Court Judge Aharon Barak , when the Supreme Court ruled (in the Hamizrahi Bank case of 1993) that a basic law could only be amended by another subsequent basic law, and not by an ordinary law. This signified the supremacy of the Basic Laws within the hierarchy of Israeli legislation, and, as a result, also meant the elevation of the legal status of the declaration because it was mentioned in the two Basic Laws of 1992. However, all the proposals that were tabled in the Knesset (in 1966, 1980, 1984, 2013, 2018, 2020, and 2022) to explicitly turn the declaration into a Basic Law failed to pass and could not make it beyond a first reading. Similarly, all the attempts made by Knesset members and civil society organizations to add equality as a value to the Basic Laws failed, the most recent of which was in December 2020 with the proposal to add it as a principle to the Basic Law of Human Dignity and Liberty.

Conclusion

A reading of the text of the Declaration of the Establishment of the State of Israel within its overall context supports the contention that it is made up of two uneven dimensions: a symbolic, celebratory dimension directed at the Jews of Palestine and Jews across the world, and a diplomatic dimension directed at the UN and the great powers. The declaration makes abundantly clear that the state that was declared on 14 May 1948 was to be fundamentally a Jewish state, one that represented world Jewry and sought to attract them to emigrate to it. This was the case because Jews, not yet citizens of the state, would have greater national, political, social, and cultural rights than the non-Jewish citizens living within it. This would quickly become apparent with the adoption of a series of legislations that aimed to exercise control over Palestinians and their property and prevent the return of those among them who were forcibly expelled; examples of such legislation include the Emergency Regulations (Security Zones) of 1949 , the Absentees Property Law and the Law of Return of 1950, and the Nationality Law of 1952 , all of which give Jews preferential treatment.