Cutting Through the Hysteria Surrounding Israel’s Nation-State Law

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Israeli flagThe world – including Jewish groups and the Israeli left – is up in arms over Israel’s new nation-state law, decrying this so-called inevitable march towards apartheid. But are they right?

For starters, here is the text of the law:

1.  The State of Israel
a) Israel is the historical homeland of the Jewish people in which the state of Israel was established.
b) The state of Israel is the nation-state of the Jewish people, in which it actualizes its natural, religious, and historical right for self-determination.
c) The actualization of the right of national self-determination in the state of Israel is unique to the Jewish people.

2.  National symbols of the State of Israel
a) The name of the state is Israel.
b) The flag of the state is white, two blue stripes near the edges, and a blue Star of David in the center.
c) The symbol of the state is the Menorah with seven branches, olive leaves on each side, and the word Israel at the bottom.
d) The national anthem of the state is “Hatikvah”
e) [Further] details concerning the issue of state symbols will be determined by law.

3. [The] unified and complete [city of] Jerusalem is the capital of Israel.

4. The Language of the State of Israel
a) Hebrew is the language of the state.
b) The Arabic language has a special status in the state; the regulation of the Arab language in state institutions or when facing them will be regulated by law.
c) This clause does not change the status given to the Arabic language before the basic law was created.

5. The state will be open to Jewish immigration and to the gathering of the exiled.

6. The Diaspora
a) The state will labor to ensure the safety of sons of the Jewish people and its citizens who are in trouble and captivity due to their Jewishness or their citizenship.
b) The state will act to preserve the cultural, historical and religious legacy of the Jewish people among the Jewish diaspora.

7. The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development.

8. The Hebrew calendar is the official calendar of the state and alongside it the secular calendar will serve as an official calendar. The usage of the Hebrew calendar and of the secular calendar will be determined by law. 

9. National Holidays
a) Independence Day is the official holiday of the state.
b) The Memorial Day for those who fell in the wars of Israel and the Memorial Day for the Holocaust and heroism are official memorial days of the state.

10. Saturday and the Jewish Holidays are the official days of rest in the state. Those who are not Jewish have the right to honor their days of rest and their holidays. Details concerning these matters will be determined by law.

11. This Basic Law may not be altered except by a Basic Law that gained the approval of the majority of the Knesset members.

Eugene Kontorovich, a Professor of Law, has written a sensible analysis, which cuts through the hysteria.

Let the hand-wringing and denunciations begin. On Thursday Israel finally expressed in constitutional law the basic achievement of Zionism: Israel is the nation-state of the Jewish people.

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.

Consider the Slovak Constitution, which opens with the words, “We the Slovak nation,” and lays claim to “the natural right of nations to self-determination.” Some provisions are found in places like the Baltics, which have large, alienated minority populations. The Latvian Constitution opens by invoking the “unwavering will of the Latvian nation to have its own State and its inalienable right of self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture throughout the centuries.” Latvia’s population is about 25% Russian.

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.

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 policies 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.

Nor does Israel have official religions, and nothing in the new Basic Law changes that. In this respect, Israel is more liberal than the seven European countries with constitutionally enshrined state religions.

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.

And Emmanuel Navon, a senior fellow at the Kohelet Policy Forum think tank, and an international relations lecturer, provides important context surrounding why the law was proposed to begin with. Clue: it has nothing to do with an attempt to remove the rights of Israel’s minorities.

After 70 years of independence, Israel still lacks a written constitution. This is an anomaly, but not one that is going to be remedied any time soon because of unbridgeable gaps between Israel’s political parties. Constitutions are the cornerstone of democracies; they define the identity and purpose of the state; they determine the powers of the three branches of government; and they protect individual rights. Israel has “basic laws” that determine the powers of the three branches of government (such as Basic Law: The Knesset) and that protect individual rights (such as Basic Law: Human Dignity and Freedom), but not a basic law that defines the identity and purpose of the state. Basic Law: Israel Nation-State of the Jewish People was passed to fill that void.

To some, filling this legal void was unnecessary since Israel is de facto a nation-state and since its Declaration of the Establishment of the State of Israel does define the identity of the country (“We hereby declare the establishment of a Jewish state”) and its purpose (the national independence of the Jewish people). In fact, passing this new basic law was necessary because of the judicial activism of Israel’s High Court of Justice in the past two decades.

In 1992, the Knesset passed two basic laws: one on “human dignity and freedom” and one on “freedom of occupation.” Justice Aharon Barak (who presided the Supreme Court between 1995 and 2006) proclaimed a “constitutional revolution” after the passing of those two basic laws. What Barak meant was that the High Court of Justice could now strike down laws passed by the Knesset if deemed “unconstitutional” (i.e. incompatible with the two new basic laws). Nowhere in the basic law does it say that the court is entitled to use them to strike down regular legislation. Yet Barak unilaterally granted that power to the court in a 1995 ruling.

The “constitutional revolution” has affected Israel’s identity as a nation-state. The basic law on “human dignity and freedom” states that Israel is a “Jewish and democratic state.” But what happens when Jewish and democratic values conflict? No problem, Barak wrote in 1992: In case of a conflict, the word “Jewish” shall be interpreted by the court “with the highest level of abstraction.” In other words, it shall be ignored. Theoretically, the court could use in its rulings Israel’s Declaration of Independence, which defines Israel is a Jewish state. Yet the court itself ruled in 1948 that the Declaration of Independence has no constitutional value.

THE COURT’S activism, combined with the “highest level of abstraction” with which Barak interpreted Israel’s Jewishness, were soon to be felt. The court ruled that a Jew cannot purchase a plot of land in a Bedouin village (Avitan case, 1989), but that an Arab can build a house in a village established by the Jewish Agency (Ka’adan case, 2000). The court was petitioned twice by NGOs (in 2006 and in 2012) to cancel Israel’s citizenship law so as to impose on Israel the Palestinian “right of return” through the back door via fictitious marriages. Though the court rejected both petitions, it did so with a razor-thin majority of six to five.

Other laws and symbols related to Israel’s Jewish identity are not immune from petitions at the High Court of Justice. The “law of return” (which grants automatic immigration rights to Jews) might one day be struck down for being discriminatory; Israel’s national anthem (which expresses the Jews’ two-millennia faithfulness to their land) and flag (which only has a Jewish symbol) could be challenged in court for ignoring the feelings of the Arab minority; and taxpayers could petition the court against the spending of their money on the preservation of Jewish identity in the Diaspora. Until the passing of the basic law on Israel as a nation-state, the court had no constitutional basis to reject such petitions and to protect Israel’s Jewishness. Now it does.

The right to national self-determination was recognized as a universal one by the League of Nations after World War One. The Jews are entitled to that right like any other nation. Unlike the United-States and Canada, but like most countries is the world (including in Europe), Israel is a nation-state. Yet the Jews’ right to self-determination is still being challenged both internationally and domestically. Thanks to the nation-state basic law, Israel’s Jewishness is no longer assailable at home.

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An Aussie immigrant to Israel, Aussie Dave is founder and managing editor of Israellycool, one of the world's most popular pro-Israel blogs (and the one you are currently reading) He is a happy family man, and a lover of steak, Australian sports and girlie drinks

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