More on the Nation-State Law

The longer the time that passes, the more we hear about the Nation-State Law (aka the Jewish State Law). And the more we hear and read, the more confused we become.

The Knesset

Here are a some voices which may help clear up some of the hysteria and confusion surrounding the law.

First we have Evelyn Gordon, always a level-headed clear thinker, explaining how critics of the law have misunderstood Israel’s constitutional system:

Israel’s new nation-state law has elicited a storm of criticism since it passed on July 19. Some of this criticism is justified; a law that manages to unite virtually the entire Druze community against it, despite this community’s longstanding support for Israel as a Jewish state in principle, clearly wasn’t drafted with sufficient care, as even the heads of two parties that backed the law (Jewish Home’s Naftali Bennett and Kulanu’s Moshe Kahlon) now admit. Nevertheless, much of the criticism stems from a fundamental misunderstanding of Israel’s constitutional system.

Israel doesn’t have a constitution. What it has is a series of Basic Laws to which the Supreme Court unilaterally accorded constitutional status. Many people, myself included, disagree with that decision, inter alia because constitutional legislation should reflect a broad consensus, whereas many Basic Laws were approved by only narrow majorities or even minorities of the Knesset. Nevertheless, both sides in this dispute agree on one thing: Each Basic Law is merely one article in Israel’s constitution or constitution-to-be. They cannot be read in isolation, but only as part of a greater whole.

Consequently, it’s ridiculous to claim that the nation-state law undermines democracy, equality or minority rights merely because those terms don’t appear in it, given that several other Basic Laws already address these issues. The new law doesn’t supersede the earlier ones; it’s meant to be read in concert with them.

Several Basic Laws, including those on the Knesset, the government and the judiciary, detail the mechanisms of Israeli democracy and enshrine fundamental democratic principles like free elections and judicial independence. There are also two Basic Laws on human rights, both of which explicitly define Israel as a “Jewish and democratic state.”

Thus to argue that the nation-state law is undemocratic because it doesn’t mention equality or minority rights is like arguing that the U.S. Constitution is undemocratic because Articles I and II confer broad powers on the legislature and executive without mentioning the protections enshrined in the Bill of Rights.

Nor are any of the law’s specific provisions undemocratic. For instance, the provision stating that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people” doesn’t deprive Arabs of individual rights within Israel, nor does it bar the possibility of Palestinian self-determination in the West Bank and Gaza, which aren’t part of the State of Israel. The only thing it prohibits is an Arab state within Israel’s borders, which is problematic only if you favor replacing Israel with another Arab state.

As for the provision making Hebrew the state’s only official language, many other democracies also have a single official language despite having large minorities with different mother tongues.

And here we get to the crux of the matter (emphasis added):

The law was meant to solve a specific constitutional problem: The courts have frequently interpreted the Jewish half of “Jewish and democratic” at a “level of abstraction so high that it becomes identical to the state’s democratic nature,” as former Supreme Court President Aharon Barak famously said. Yet no definition of “Jewish” can be complete without recognizing that Judaism has particularist, as well as universal, aspects because it’s the religion of a particular people with a particular history, culture and traditions. By emphasizing some of those particularist aspects, the law is supposed to restore the intended balance between the Jewish and democratic components of Israel’s identity. But it doesn’t eliminate those democratic components, which are enshrined in numerous other Basic Laws, nor was it intended to do so.

Jonathan Tobin in the National Review similarly asserts that there is nothing wrong with the Nation State Law: (emphasis added):

The idea of a country that is not solely the state of its citizens but the patrimony of an ethno-religious community strikes some in the West as inherently racist. But Israel is hardly alone in seeing in seeing itself as a nation whose primary purpose is to allow one people to express their national identity.

The Menorah & Magen David situated between the Knesset and the Supreme Court in Jerusalem. Ubiquitous symbols of Israel, old and new.

The constitutions of many other countries make clear that they exist as vehicles for a national idea in this same manner. …

The only thing that is really unique about Israel’s insistence that it is a Jewish state is that it is the only one on a planet with dozens of states that are avowedly Muslim, Christian, or associated with another faith. Indeed, according to the Pew Research Center in October 2017, some 27 nations designate Islam as their official state religion, while 13 (including nine in Europe) do the same for Christianity. Another 40 nations give preferred or favored status to a particular faith.

Embed from Getty Images

 

There is nothing inherently repulsive about, or redolent of apartheid in, a law that establishes national symbols: a flag with a blue Star of David, and a national anthem, “Hatikva,” which speaks of the 2,000-year-old “hope” of the Jews to “to be a free people” in “the land of Zion and Jerusalem.” Nor is it apartheid to use the Hebrew calendar or to state the nation’s interest in ensuring the safety of Jews throughout the world.

Or at least there is nothing offensive unless you happen to think the Jews deserve to be denied basic rights of settlement, sovereignty, and self-defense in their own country — rights that no one would think of denying to anyone else. That is why such anti-Zionist bias is indistinguishable from anti-Semitism.

Here too is Eugene Kontorovich, Professor of International Law at Northwest University, telling people to “Get over it: Israel is the Jewish State”: (WSJ has a paywall but you can read the entire article at Tom Gross’s Facebook post):

In reality, Israel’s Basic Law would not be out of place among the liberal democratic constitutions of Europe—which include similar provisions that have not aroused controversy. The law does not infringe on the individual rights of any Israeli citizen, including Arabs; nor does it create individual privileges. The illiberalism here lies with the law’s critics, who would deny the Jewish state the freedom to legislate like a normal country.

The nation-state law declares that Israel is a country established to instantiate the Jewish people’s “right to national self-determination.” It constitutionalizes symbols of that objective—the national anthem, holidays and so forth. There is nothing undemocratic or even unusual about this. Among European states, seven have similar “nationhood” constitutional provisions.

The new Basic Law also establishes Hebrew, the primary language of 80% of Israel’s population, as the official language. Previously, Israel relied on a holdover British Mandate provision that gave official status to Hebrew, Arabic and English. Far from undermining democracy, the Basic Law puts Israel in line with other Western nations. Most multiethnic, multilingual European Union states give official status only to the majority language. Spain’s Constitution, for example, makes Castilian Spanish the official national language, and requires all citizens to know it, even if their mother tongue is Basque or Catalan.

Jewish homes in the Shomron (Samaria)

Another controversial provision of the law declares “the development of Jewish settlement” to be a national value that the government should promote. It is understood to refer to encouraging population dispersion into the periphery of the country. This essentially restates policy adopted by the international community in 1922 in the League of Nations Mandate for Palestine, which sought to “encourage . . . close settlement by Jews.” Again, the provision is only declaratory of values, and does not prescribe or authorize any particular policies. By contrast, the state constitution of Hawaii authorizes land policies to promote homesteading by ethnic Hawaiians, and provides preferential land polices for them.

Moreover, the measure comes against a backdrop of land policies that discriminate against Jews. The Israeli Supreme Court has ruled controversially that Arabs have a right to create residential communities in Israel that exclude Jews. A separate case denied the corresponding right to Jews. In Jerusalem, the Palestinian Authority prescribes the death penalty for Arabs who sell land to Jews. The new Basic Law does not even negate either of those injustices; it merely creates a normative counterweight.

In his concluding paragraph, Kontorovich puts his finger on the crux of the entire controversy:

Perhaps the best evidence that Israel needs a constitutional affirmation of its status as the sovereign Jewish nation-state is the eagerness of so many to denounce as undemocratic measures that are considered mundane anywhere else.

Since the controversy over the law this week has centered on the anger expressed by the Druze community, who feel they have been discriminated against despite their fierce loyalty to the State of Israel, here is Hazar Gadben, a Druze resident of Daliyat Al-Carmel, reproving her fellow Druze for their antagonism towards the Nation-State Law, telling them they have nothing to fear from Israel or the Law, which essentially changes nothing in their status:

Maybe this Nation-State Law wasn’t such a great idea given that it was passed seemingly in a hurry, without due caution to all the arguments it would raise.

However, as all these commentators and more have pointed out, the Law doesn’t really change anything on the ground. It simply comes to strengthen Israel’s Jewish character and bolster Jewish rights which have been eroded over the years in the name of a spurious “democracy” which apparently deems minority rights more important than majority (i.e. Jewish) rights.

I’m sure this is a play that is going to run for months if not years, especially as election season rolls around.

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7 Responses to More on the Nation-State Law

  1. I wanted to add a different take. As you knew I just might ☺️

    Listen, in truth, the Nation-State law is problematic. Not because of what it says, but because of what it doesn’t say. Fix it. It is simple. It is only two little words, but these words carry humanity on its shoulders. These ideals are also something the Jewish people for thousands of years have been denied worldwide. It is not something the Jewish People should ever be thought of as denying to others. “Equality,” and “Democracy” should not be so hard to put in the Nation-State law. These words should never have been omitted in the first place.

    Here is the entire post up at TOI: https://blogs.timesofisrael.com/two-words-that-carry-humanity-on-its-shoulders/

  2. Brian Goldfarb says:

    “Nor are any of the law’s specific provisions undemocratic. For instance, the provision stating that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people” doesn’t deprive Arabs of individual rights within Israel, nor does it bar the possibility of Palestinian self-determination in the West Bank and Gaza, which aren’t part of the State of Israel.”

    Well, if that’s what the new Nation State Law actually says (and those words aren’t a [possibly mis-] translation of the Hebrew), okay. However, the reaction outside as well as inside, Israel appears to centre on (a) the apparent elevation above all else of the “Jewishness” of Israel & (b) the dismissal of Arabic as an equal language.

    The latter would appear to dismiss the language of 20% of the population. It is as if the UK government decided to impose English in Wales to the detriment of the Welsh language: anyone who has driven across the Severn Bridge into Wales knows that even in Anglophone South Wales, all signs are bilingual…even if Welsh is largely confined to the North of the country (where it is used to confuse the Anglo-tourists!).

    As to the first, no-one in this (British or even English) green and pleasant land that it is a Christian (to the extent that there is an “official” religion) country, with English as its dominant and even necessary – if you wish to survive here – language. It doesn’t need to be enshrined in law.

    To do so would be to downgrade the much less than 20% of the population that are neither Christian (I leave aside non-believers who would be classified as Christian, whether they like it or not) nor native English speakers. And it doesn’t happen nor need to happen. After all, that Druze on the video clip spoke perfect Hebrew. Naturally, if she wished to be understood by her target audience, who are far from just the Druze.

    In other words, the new law is a nationalist and populist law that didn’t need to be passed: if anything, it emphasises the non liberal democratic elements of the country.

    Which may well describe exactly the sponsors and other backers of the bill.

    Just passing it does rather demean Israel’s reputation in the world as a very liberal country. Which is a crying shame.

      • Brian Goldfarb says:

        Thank you for repeating the link, Anne. Even allowing for reading that article, I am viewing the Nation State Law through a British prism. Even so, everyone, whether wishing Israel well or the nay-sayers, knows very well that Israel is “the Jewish state”, 20% or so of non-Jews notwithstanding. In other words, as Lerner says, Israel doesn’t actually need the new Law. It’s only to satisfy a small segment of Likud’s coalition partners.

        And, of course, the backlash has been pretty big: the Druze and their allies demonstrating should be worrying to the government: the Druze are Israel’s most loyal non-Jewish citizens: they were never fans of the Hashemite kingdom and they are certainly not fans of the Palestinians!

        It comes down to asking whether the Act was really necessary to underline Israel’s Jewish nature? No-one who wishes Israel well would expect any Israeli government to act other than for the greatest good of the greatest number of its citizens: and 80% of those are Jews.

        QED?

  3. ShimonZ says:

    Dear Anne, as you know, I’m not one of your regular commentators, though I do read your blog often. Since I belong to a small minority here Israel, I thought it might be interesting for you and maybe your readers to hear my view of this subject. I have been a religious Jew since 8 days after my birth, which was quite a while before the birth of the modern state of Israel. I live my life according to the traditional values of my people, and have great respect for others, whether they are Jewish or not. I think of Israel as the Jewish state, and accept the laws whether they are in my favor or not. I see us as a Jewish state run according to democratic principles, but I wouldn’t be unhappy if the parliament was replaced by a Sanhedrin. To me, Judaism is more important than democracy. Democracy has become some sort of a modern religion with equality emblazoned on its flag. That means that when the judges declare equality, we are supposed to agree that a trans-gender man is now to be accepted as a woman, regardless whether she has the anatomy of a woman. That is just one example of a far reaching reassessment of moral values that is in opposition to our tradition and common sense. I believe that we don’t need a constitution. The torah is our constitution. It is my opinion that if this folly is to be continued without limit, the Jews will become an insignificant minority, and Israel will be turned into a copy of Belgium or one of the European states. With best wishes, ShimonZ

    • anneinpt says:

      Shimon, thank you for your thoughtful and thought-provoking comment.

      I agree with you that the motivation behind this new law was the chipping away at the Jewish identity of Israel. Yes, everyone knows that Israel is Jewish. But when Jewish rights have been discarded in favour of democracy – something which occurred over and over at the hands of the High Court in particular – then it was only to be expected that a backlash of sorts was going to occur.

      And this law is hardly a backlash. It really simply restates the obvious, but enshrines it in a Basic Law to buttress the idea. There was never any intention to harm or insult minorities, and anyone who thinks that Israel was out to “get” the Arabs, and particularly the Druze, doesn’t really understand Israeli society.

      Maybe the law should have been worded more carefully and constructed with greater precision, but the idea behind it is, in my opinion, pretty sound.

      I guess there will always be disagreements within our people. That’s our job description after all, being Jewish! 🙂

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