The Nation-State Law rises again

Five years since its initial introduction by MK Avi Dichter, the Nation State Bill is being hotly debated in the Knesset once again.

Israel’s Declaration of Independence announced the creation of “A Jewish state in Eretz-Israel,” and added,

The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it 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; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

These principles are generally referred to by saying that Israel is a Jewish and democratic state. The democratic part is further explicated by several Basic Laws including those that describe the details of Israel’s political democracy, and which guarantee individual rights, liberty, and dignity.

(That isn’t to say that the state always lives up to these commitments. For example, two recent serious lapses have been the treatment of the young suspects in the Duma arson/murder case, who were subjected to “enhanced interrogation techniques,” and the persistent leakage of transcripts from the police investigations of PM Netanyahu and Sara Netanyahu, both of which appear to violate the Basic Law: Human Dignity and Liberty).

Basic Laws serve the function of a constitution in Israel, and because they serve as touchstones for court decisions (especially the Supreme Court), have great influence. The Basic Law: Human Dignity and Liberty is especially frequently cited by the Supreme Court.

The concept of the state’s Jewishness, however, is not elucidated any further by existing Basic Laws. Many Israelis (I among them) feel that there is an imbalance in the Basic Laws, such that the Jewish nature of the state is often in practice subordinated to its democratic nature. This feeling could be expressed by saying that there is more to a Jewish state than just a Jewish majority. Or, to put it another way, a Jewish majority is a necessary but not sufficient condition for a Jewish state. This is addressed by the attempt to pass a new Basic Law: Israel as the Nation-State of the Jewish People.

The reason the bill is so controversial – despite the present version being highly watered down – is that there are competing visions of what the State of Israel should be. One view, which is preferred by Arab citizens and the Jewish Left, is that it should be a liberal democracy, period. Many Arabs would also like to see ethnically-neutral national symbols. Some would even prefer a binational state, with the Arab minority given a veto power over laws passed by the Knesset, a Law of Return for Arabs, and more (the Haifa Declaration of a committee of Israeli Arab academics is an extreme example).

As long as there is a Jewish majority, that isn’t likely to happen. But there is also a view that the Jewishness of the state is simply a function of its Jewish majority, and the only special benefit provided to Jews is the Law of Return. The Jewish character of the state, by this view, comes from the fact that Jews are in the majority and will naturally determine the symbols, holidays, language, and culture of the state.

Finally there is the position, reflected by those that favor the passage of a nation-state law, that Israel should explicitly define herself as a Jewish state. Having basic principles anchored in law could be practically important. For example, the current version of the nation-state bill in the Knesset includes the statement that “The State will act to ingather the exiles of Israel and to promote Jewish settlement in its territory and it shall allocate resources for these purposes.” In a case involving a conflict between claims of individual property rights and a settlement in Judea/Samaria, the courts would have to give weight to the need to promote Jewish settlement, and perhaps find a solution short of demolition.

Or, for example, consider that someone might petition the Supreme Court to improve access to the Temple Mount for Jews on the basis that “The holy sites shall be protected against desecration and all other damage and against anything that would interfere with freedom of access of religious groups to places holy to them or to their sensibilities regarding said holy sites,” one of the clauses in the law.

There is also the more abstract value of making explicit Israel’s primary function as a vehicle for Jewish self-determination, as well as the responsibilities of the state to the Jewish people as a homeland and a refuge. It might seem obvious to some Israelis, but not to others and certainly not to the rest of the world.

Parts of the bill are very controversial, like one that gives the right to a “community” (without defining that, except to say that ethnic and religious categories are included) to establish a “separate community settlement” where members of a different “community” would not be accepted. Yesterday’s Knesset debate about this was highly acrimonious, with several members being removed for bad behavior. President Rivlin, in a rare foray into politics, wrote a letter strongly opposing this clause, and my guess is that it will be significantly changed or removed from the final law.

In the next week or so, the bill will have its final two readings in the Knesset, and proponents say that they have the votes to pass it even in its present form (which I doubt, given the storm produced by the President’s letter).

Some who object to the law ask “Who needs it? We know who we are. It will damage the state among the peoples of the world.”

Israel is a special kind of state, in fact the only one of its kind. It is not only an ethnic nation-state, it is probably the only one established by the return of a nation to its homeland after a prolonged exile, and one whose first principles include the necessity of being a refuge for a persecuted people.

It is presently weathering an intensely hostile political climate in a world where ethnic nationalism is considered evil, both in the abstract and in particular for the Jewish people.

Rather than hide who we are, we should broadcast it. It might not make the world like us any more, but at least they will better understand what we are fighting for.