Making the Jewish State a ‘Jewish State’
For all the controversy about Israel’s status as a “Jewish state,” the country’s own legal framework establishing it as such is surprisingly tenuous. Israel, unlike the United States, has no constitution that defines its national goals and values. Its collection of 11 Basic Laws, which were intended as a blueprint for an eventual constitution, contains no definition of Israel as a Jewish state. The Independence Scroll of May 1948, deliberately designed by David Ben-Gurion to serve as Israel’s version of the Declaration of Independence, does; it makes the case for Jewish statehood by focusing on history and the return of Jews to the land. But even though the Independence Scroll has been cited in Israeli Supreme Court rulings, it was never ratified as law. And while Israel was built on the principles of the “law of return,” which allows all Jews and all people with at least one Jewish parent or grandparent to become Israeli citizens, it is not one of the 11 Basic Laws. At the moment, in fact, there are no laws truly cementing Israel’s status as a Jewish state.
That Israel has prospered for almost 65 years without a law declaring it a Jewish state is, in a sense, a testament to the force of its founding idea. Israel is a Jewish state because Jews believe it and Israelis live it. The country’s history shows that Jewish nationalism made flesh can be more transcendently powerful than any legislative declaration.
But today, the absence of a legal architecture ensuring Jewish statehood is also a potential threat to the Zionist project itself. With campaigns to delegitimize Israel on the rise both inside and outside the country, and with a surging trend of anti-Zionist and post-Zionist thought among the Israeli left, the idea of fashioning and passing a Jewish state law has become a matter of urgency to many. For Israel to thrive uniquely as a Jewish democracy, its institutions and laws must ensure that its democratic nature is never brought into irresolvable conflict with its Jewish identity. And without a Jewish-state law, Israel’s unfortunately overactive judiciary could issue decisions that would chip away at the country’s Jewish character. The prospect of such a crisis is all too real. As Likud Knesset Member Yariv Levin has pointed out, “the consensus that is at the basis of this state’s existence” has, in fact, been “blurred in recent years by several high court rulings.”
One such ruling is the 2000 Kaadan case, in which the Israeli Supreme Court ruled that an Arab family must be permitted to live in Katzir, a cooperative town, even though the government had leased the land on which Katzir was built to the Jewish Agency, a private organization that is not an arm of the government and is designed, by its very definition, to aid Jewish people.
The creation of a Basic Law proclaiming Israel a democratic Jewish state would prevent courts from making decisions that erode Israel’s Jewish nature in the name of preserving its democratic one. The recent effort to define the Jewish state got underway in August 2011, when Avi Dichter, then of the Kadima Party and formerly the director of the Shin Bet intelligence agency, submitted “Basic Law: Israel as the Nation State of the Jewish People.” The bill was co-sponsored by 39 Knesset members from seven parties: Kadima, Likud, Independence, Bayit Yehudi, Yisrael Beytenu, National Union, and Labor.
In strong and simple terms, Dichter’s proposal declares that “the State of Israel is the national home of the Jewish People where they realize their aspiration for self-determination according to their cultural and historical legacy” and that “the right to national self-determination in the State of Israel is unique to the Jewish People.” The legislation noticeably avoids defining the physical characteristics of the Jewish Homeland; it therefore would not prevent territorial concessions to the Palestinians, nor would it limit a prime minister’s ability to expand or establish Jewish towns in Judea and Samaria. The bill would also make the law of return a Basic Law, stating that “every Jew has the right to immigrate to the land [of Israel] and acquire citizenship of the State of Israel.” This is coupled with a declaration that the government will work to build a connection with Diaspora Jewry. Other articles in the bill regulate the Hebrew calendar, Independence Day, and Memorial Day, as well as the flag, anthem, and emblem of Israel.
Tellingly, the aforementioned components of the legislation—those parts that actually defined Israel as a Jewish state—drew little criticism from the Israeli left. Coming out overtly against the establishment of Israel as a Jewish state is risky politics; in fact, it is illegal for parties or politicians who reject Israel as a Jewish, democratic state to run in elections (though the law is not always upheld in such cases). It was more politically savvy for enemies of the proposal to mark for attack a section of the bill that declared Hebrew the official language of Israel while giving Arabic “special status.”
The outraged tone was set by the perpetually aggrieved Haaretz, which ran its first article about the bill under the headline: “Proposed Law: Arabic Is Not an Official Language.” In my capacity as Knesset reporter for the Jerusalem Post, I discussed the bill with the director of policy advocacy for the Association for Civil Rights in Israel, Debbie Gild-Hayo, who told me that “reducing Arabic from an official language to ‘special status’ is, by definition, lowering Arabs’ status.” She claimed: “The bill symbolizes that Arabs are in Israel because we’re doing them a favor, not because they deserve to be here.” Once the left-wing outrage had become a story in itself, Binyamin Ben-Eliezer, the sole Labor lawmaker who had signed the bill, withdrew his support. Wider enthusiasm for Dichter’s proposal began to wane.
Its success notwithstanding, this line of criticism was false. Hebrew has been the official language of Israel since the country’s establishment, and as Arabic has never been an official language of Israel, the bill’s requirement that Arabic be given “special status” would actually be an upgrade. All government services would be available in Arabic.
In a letter to Dichter, Labor Party leader Shelly Yachimovich criticized another section of the bill, which stated that judges should make decisions “in light of the principles of liberty, justice, integrity, and peace in the Jewish tradition.” Yachimovich apparently felt that such values are too vague and judges are safer ruling by legal precedent.
Dichter’s proposal was ultimately thwarted when Tzipi Livni, then the leader of Kadima, said she could not support it because the present balance between Jewish and democratic forces was too tenuous to be tampered with (a position she would modify two years later). But the idea of a Basic Law establishing Israel as a Jewish state did not disappear.
In January 2013, an election removed Dichter from the Knesset and a new governing coalition was formed. This coalition was considered theoretically more amenable to the passage of new Basic Laws because it did not depend on ultra-Orthodox Knesset members. Part of the reason no new Basic Law has been passed since 1992 is that ultra-Orthodox parties automatically veto them and most governing coalitions since then have included some ultra-Orthodox members.
In late June, Knesset members proposed two bills, nicknamed “Nationality Bills” in the local media. The first, “Basic Law: Independence Scroll,” was proposed by Yesh Atid’s Ruth Calderon, a secular Talmud professor whose inaugural Knesset speech—a Talmud lecture—went viral on YouTube. The bill is purely declarative; it takes Israel’s founding document and makes it law. As Calderon explained, “in the absence of a constitution, the Independence Scroll is a fundamental legal document that anchors the basic and important principles of the state’s identity.” “Basic Law: Independence Scroll” contains only three lines: one making the Independence Scroll a law, and two others that grant it Basic Law status.
However, the bill’s explanatory portion—which is not considered the bill itself—is a more ambiguous affair. A caveat states that while the scroll declares Israel the homeland and nation of the Jewish people, in this case “Jewish” does not refer to a religion, but to a nationality and culture. The inventive explanation serves Calderon’s goal of eliminating the Orthodox hegemony in government-provided religious services. But her conception of Jewishness is dubious. “The nation-state should deal with the state, not the religion,” Calderon told me in her parliamentary office in June. “If you’re religious, it’s your private matter. Our nation has a language, a calendar, an ethos, a joint history. All Jewish people have their home in Israel, even though some are religious and some are not. I’m of the Jewish nation, but I don’t live according to halacha [Jewish law] and that doesn’t make me less Jewish.”
Of course, Jewishness is all of these things put together—a culture, a nation, and a religion—and no element can be separated from the other cleanly. The quick and facile decoupling of Judaism and Jews undermined a bill that seeks to define Israel’s Jewishness.
Yet despite the bill’s unmistakably secular intentions, and despite the Independence Scroll’s statement that Israel will ensure “equal social and political rights for all citizens without difference of religion, race, or gender,” Calderon’s proposal faced criticism from the left for being exclusionary. This time, Haaretz leveled the charge that the bill was an “apartheid bill.” In response, Calderon added a phrase to the legislation to ensure it “will defend Israel’s values as a Jewish and democratic state.” The change did not get much recognition in the media it was apparently intended to please.
The second new “Nationality Bill” is clearer in its text and aims. It was proposed by the faction chairpersons of the coalition’s three right-wing parties: Likud’s Yariv Levin, Bayit Yehudi’s Ayelet Shaked, and Yisrael Beytenu’s Robert Ilatov. The bill adopts many of the elements of Dichter’s version, including its name, “Basic Law: Israel—the Nation-State of the Jewish People.” It declares, in language that evokes Dichter’s bill, that “the State of Israel is the national home of the Jewish People where they realize their aspiration for self-determination according to their cultural and historical legacy” and that “the right to national self-determination in the State of Israel is unique to the Jewish People.” As with Dichter’s earlier proposal, there are sections on the flag, the anthem, the state symbol, the law of return, and Diaspora relations.
The Levin-Shaked-Ilatov bill, however, sharpens Dichter’s version by removing excess fat, like the official status of Arabic, and by honing its message. The idea is to make critics stop shouting about discrimination and force into the light their real problem with the legislation: that it is meant to quell the self-hating calls for Israel to be a little less Jewish. The bill states: “The purpose of this Basic Law is to define the identity of the State of Israel as the nation-state of the Jewish people and anchor in a Basic Law these values in the spirit of the principles of the declaration of the State of Israel.”
Unlike Dichter and Calderon’s versions, the proposal goes on to define those principles and that spirit. “The Land of Israel is the historic homeland of the Jewish people and the place where the State of Israel is founded,” it says, thus granting the historic land of Israel legal status. The Levin-Shaked-Ilatov bill defines Israel as a democratic state “based on the foundations of liberty, justice, and peace according to the visions of the prophets of Israel and committed to the personal rights of all its citizens as detailed in every Basic Law.” Note the language delineating “personal,” not national, “rights of all its citizens”; only the Jewish people have the historic right to national expression in the land of Israel.
The bill calls upon the state to “preserve, foster, and instill the cultural and historical heritage and traditions of the Jewish People in Israel and in the Diaspora,” but also says the state will allow every resident of Israel, regardless of nationality or religion, to act to preserve his or her culture, heritage, language, and identity. One article of the bill, establishing that “holy sites will be protected from desecration and from anything preventing free access for all religions who consider the sites holy” could reverse the injustice of forbidding Jewish prayer on the Temple Mount, which is allowed by law but prohibited by the police.
Levin and Shaked worked for months with Calderon to try to find a consensus version of the legislation, but they could not come to an agreement over the relative weights of equality, as opposed to Jewishness, in the bill. As Levin explained, Calderon “wants equality to be the central tenet, or at least to include language that can be interpreted that way, which is the exact opposite of what I want.” With the issue unresolved, Justice Minister Tzipi Livni vetoed the bill in late June, exercising her power as chairwoman of the Ministerial Committee for Legislation, which decides the fate of most draft laws.
Livni explained her veto on Facebook, the media of choice for Israeli politicians these days, echoing many of the idea’s critics: “Who doesn’t want to preserve Israel as the Jewish nation state? That’s the purpose of Zionism….Therefore, we need a constitution and the Law of Return should be its first article, and therefore, I will oppose any proposal that tries to break the balance between the values of Israel as a Jewish State and a democratic state.”
She continued: “Whoever thinks democracy is just a system of government is wrong. It is a system of values that lives harmonically with my concept of Judaism. Equality, for example, is a Jewish and democratic value. In short, I will oppose any legislation that undermines the correct balance.”
Livni must have realized the weakness of her arguments against legislating a definition of the Jewish state, because in August, she appointed Ruth Gavison, of Hebrew University and the Israel Democracy Institute, to do that very thing.
In a letter to Gavison, Livni asked the noted academic and legal scholar to formulate a “constitutional provision” that would “anchor and balance” the Jewish and democratic components of Israel’s identity. In a statement on Gavison’s appointment, Livni said the existing bills were unacceptable because they sought “to force [a] worldview” on the entire country. Despite Livni’s dig at Levin, Calderon, and the others, they have not commented on the Gavison appointment. (Livni said she gave Gavison the job with the consent of both Israeli Prime Minister Benjamin Netanyahu and the coalition parties; sources close to Netanyahu denied that Livni informed him in advance of the move.)
This appears to be a positive development on the Nationality Law front, though Livni was vague about what a “constitutional provision” means, and whether it would be a law, Basic Law, or just a declaration of intent.
Levin of the Likud Party has defended the “Nationality Bill” by remarking that it “says what should be understood to begin with”—namely, that Judaism takes precedence in the Jewish state. For the majority of Israelis, this remains true. Their attachment to the land is biblical.
But Israel is a biblical nation surviving in an increasingly postmodern time. And in political terms, it is a young democracy. That it is a successful one means, inevitably, that plurality and dissent have thrived. These factors conspire to present a unique challenge: Israel must not allow the discord facilitated by its democratic ideals to undermine its status as a Jewish state. The fertile tension between freedom and tradition is heightened in Israel, but not unique to it. It is a feature of democracy everywhere, and managed most profitably through the establishment of laws.
In 1998, then–Supreme Court President Aharon Barak declared a “constitutional revolution” and gave the 11 Basic Laws ascendancy over all others—effectively converting them into a Bill of Rights. If the Basic Laws are to make up the chapters of an eventual constitution, it is necessary for a new “Jewish” chapter to be included. A new Basic Law on Jewish statehood would ensure that the government, courts, and legislature operate with a clear understanding that Israel is both a democracy and a Jewish state. The Jews, after all, are nothing if not a people of laws.