A Law Stating What’s Jewish About A “Jewish And Democratic State”



In July 19th, the Israeli Knesset, led by Benjamin Netanyahu’s Likud Party, passed a new “basic law,” with the anodyne title of “Israel—The Nation-State of the Jewish People Law,” commonly called the nation-state law, or khok ha’leom (literally, “nation law”). In Israel, basic laws—this one is the fourteenth—are meant to have quasi-constitutional status, and the nation-state law purports to codify what’s Jewish about a “Jewish and democratic state.” In principle, this might have been a reasonable undertaking. Another basic law, the “Law of Human Dignity and Liberty,” enacted in 1992, purported to define what is democratic about a “Jewish and democratic state,” and it has since been applied by the Supreme Court to promote greater equality among Israeli citizens. In 2000, for example, the Supreme Court overrode an old regulation of the Jewish National Fund and the Jewish Agency, which prohibited the sale of J.N.F. property to non-Jews, after a coöperative community called Katzir had invoked it to deny the sale of a home to an Arab family. In 2012, the court required the Knesset to rewrite the laws that ultra-Orthodox students have used to claim exemption from the nation’s military draft. The nation-state law might have built on the Law of Human Dignity and stipulated what, nevertheless, a democracy with a Jewish character looks like, adopting Hebrew as an official language, say, or formalizing the legal status of Jewish state symbols, the Jewish calendar, and the national anthem, “Hatikva,” or establishing Jewish holidays (including the Sabbath) as “days of rest”—all of which the nation-state law does.

The nation-state law, however, does not build on the Law of Human Dignity—rather, it takes that earlier law as a foil. In spite of (or, rather, because of) the size of Israel’s Arab minority, already twenty per cent of the population, and the fact that the Druze community—which numbers almost a hundred and fifty thousand—is subject to the draft, the nation-state law seeks to provide the Supreme Court with guidance to preëmpt further egalitarian menace. “There are places where the character of the State of Israel as a Jewish state must be maintained,” the justice minister, Ayelet Shaked, one of the law’s chief sponsors, said last winter, “and this sometimes comes at the expense of equality.” Thus, the nation-state law holds that the “right of national self-determination” in Israel “is unique to the Jewish people”—in effect, a state of international Jewry, not of its citizens. It extends to every Jew the right to aliya—code for automatic citizenship, under the Law of Return, passed in 1950. It commits the state to “secure the welfare of world Jewry.” Hebrew, in the law, is the only official language (though Arabic is accorded a “special standing”). Most importantly, at least to critics concerned that the law will unmoor the state from liberalism and the peace process, it holds that “the development of Jewish settlement” is a “national value”—fudging what “Jewish” means, but implying the obvious—and establishes Jerusalem, “whole and united,” as the capital of the state, reinforcing an earlier basic law, from 1980, when Likud first took power.

Indeed, critics have been vocal. The law passed on a party-line vote—virtually the entire center-left opposition voted against it—and has riled liberals from the head of the Israel Democracy Institute to the head of the Reform movement in the United States. On Saturday, the Israeli Arab Knesset member Zouheir Bahloul, of the opposition Zionist Union, announced his intention to resign. Druze leaders speak of betrayal. Israel’s Declaration of Independence, which David Ben-Gurion, the founding Prime Minister, proclaimed in 1948, committed to “insure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” The nation-state law would set up a rival standard, valorizing discrimination in favor of Jews collectively, as individuals, and as performers of Orthodox Jewish law. “The Zionist ambition of forming a just society based on the value of equality is called into question,” the Israel Democracy Institute’s Mordechai Kremnitzer notes. The law, Haaretz’s Chemi Shalev writes, is “loathsome, damaging, divisive and mainly superfluous.”

Yet criticism of the law as a legal watershed can also be somewhat misleading, and Shalev’s word “superfluous” is a kind of giveaway. Shalev is, perhaps inadvertently, calling attention to a deeper, more persistent crisis in Israel’s democracy, which is that the nation-state law actually changes very little. It was twelve years before that Arab family was finally allowed to move into Katzir. Indeed, resistance to even affluent Arabs moving into Jewish communities is still so widely taken for granted that the government, national and municipal, will rarely enforce integration against the will of current residents. Successive Netanyahu coalitions failed to pass an egalitarian conscription law that puts the same burden on Orthodox youth as it does on secular youth; the current coalition is even considering a law that will empower future Knesset majorities to pass laws that are immune to Supreme Court review. Since Israel’s founding, Orthodox rabbinic control has presided over many aspects of private life, from marriage, divorce, and burials to legal definitions of “Jew” in crafting regulations for immigration, the award of citizenship, land purchase and settlement, schooling, and cultural funding. The Israel Land Authority and quasi-governmental organizations, such as the J.N.F. and the Jewish Agency, discriminate in extending financial support only to “Jewish settlement.” Kremnitzer is admirably disquieted by what he calls the “Judaification” of the land, but apparently not by a Law of Return that rests “Jewish” on rabbinic law, Orthodox conversation, and blood descent. (I wrote about such existing discriminatory institutions when Netanyahu proposed an earlier version of the nation-state law, in 2014, which was reportedly blocked by President Obama.)

It is no wonder that, in 2016, the per-capita allocation of public funds for the residents of Arab towns was ten per cent less than that set aside for the poorest Jewish towns and forty-five per cent less than for affluent ones. Injury to Israel’s non-Jews is a fact of existing Israeli law and institutional practice. The nation-state law only adds insult to it. Nor did this pattern begin with Likud governments. Last week, Max Fisher wrote in the Times that the nation-state law suggests what a corrupting force the occupation of the West Bank and Gaza has been, inflaming nationalism and prompting Israelis to corrode their democracy with xenophobic attitudes, much like the electorates in Hungary and Poland have done. David Ben-Gurion, Fisher writes, “emerged from retirement in July 1967 to warn Israelis they had sown the seeds of self-destruction.” Actually, Ben-Gurion refused to consider withdrawing from either the Golan Heights or greater Jerusalem. But, more importantly, Israel’s democracy had already been compromised before the occupation, and, tragically, the original sin was Ben-Gurion’s, reinforced by a series of expedient, or simply cowardly, decisions by the same Supreme Court upon which liberals now rely.

Read on at The New Yorker