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2018 Annual Assessment

The Nation-State Law and Israeli Society


Basic Law: Israel as the Nation-State of the Jewish People, below – the Nation-State Law, was enacted on July 17, 2018. The Knesset passed the bill with a majority of 62 (55 against and 2 abstentions) and has provoked a ringing controversy in Israel and throughout the Jewish world. The legislation was intended to establish the status of the State of Israel as the nation-state of the Jewish people, but while some see it as an important and natural law dealing with self-definition and national symbols, others call for its revocation claiming that it degrades the Jewish and democratic character of the state. The law has been through many iterations, starting in 2011 as a draft bill by MKs Avi Dichter and Zeev Elkin. Even then, the draft bill was met with strong criticism. Alternative proposals were proffered by various members of Knesset from different parties, and the final version passed includes extensive changes relative to the original bill.

In general, three patterns of response to the Nation-State Law can be distinguished: support; criticism of flaws in the law, mainly due to the lack of the clause on equality and anchoring the Jewish and democratic nature of the state, and sweeping criticism of the law as discriminatory, accompanied by calls for its revocation.

Supporters


Supporters welcome the legislation and see it as marking a formative and historic inflection point. They emphasize that the law is an expression of the deep foundations of Zionism, and see it as a natural measure strengthening the Jewish character of Israel and the heritage of the Jewish people.

The law’s proponents see it as critically important because it stands against those who refuse to recognize Israel as the nation-state of the Jewish people. Supporters of the law point out that it is common throughout the world to anchor a state’s symbols and national characteristics in a constitution or set of basic laws, and argue that there is nothing wrong with Israel doing so with regard to its national anthem, language, and flag. They welcome the affirmation of Jewish national pride. Against the argument of harm to the value of equality, supporters say that civil equality is maintained in practice. At the same time, many emphasize that it is a constitutional response to the ongoing imbalance in Israeli law, originating in the revolution of judicial activism of the 1990s. Here, the argument is that there is already a clear legal bias in the Jewish and democratic equation, and therefore the law is merely redressing the balance in favor of the Jewish national element that has been neglected.

Another point worth noting relates to the law’s lack of an explicit equality provision. An examination of the history of Israeli legislation shows that the absence of this component is due to the objection of the religious and Ultra-Orthodox parties. It is possible that this objection is not actually directed against Israel’s minority communities but rather defends against recognition of Judaism’s non-Orthodox streams, in a desire to keep management of religious affairs in the hands of the Chief Rabbinate.

Qualified Support Accompanied by Criticism of Significant Flaws


Together with those who totally support the law, many Israelis, qualify their support for “nation state legislation” that guarantees the Jewish character of the state, especially in the face of an international de-legitimization campaign against it. They express strong criticism of the absence of clauses guaranteeing the democratic nature of Israel and absolute equality for all its citizens, in the spirit of the 1948 Declaration of Independence. This criticism does not proclaim a slippery slope toward the demise of the country’s democratic nature. On the one hand, they argue that the law is not racist, anti-democratic, or unconstitutional, but on the other hand they fear that it is provocative, divisive, and unnecessarily denigrates certain groups in Israel and among the Jewish people.

Those holding this opinion see nothing wrong with emphasizing the Jewish national identity of the state, but they criticize the careless wording of the law and the internal tensions in Israeli society that have been caused as a result. According to them, nation state-legislation requires greater consensus, and an explicit connection to Israel’s 1948 Declaration of Independence – a formative, historic document that cannot be ignored in a basic law of this kind.

The most notable dissonance between the Declaration of Independence and the law are in connection to the principle of civil equality. Although the word democracy is not specifically mentioned in the Declaration of Independence, the document expresses a democratic spirit.

With regard to the abasement of equality, the debate sparked by the Druze protest seems to concede that the law does indeed confer preferential class status to those of Jewish nationality. This is likely to be counterbalanced with special recognition in certain cases, for example with regard to the Druze and other minorities who serve in the Army and are considered to be loyal Israeli citizens. This aspect of discrimination in the law, likely reinforces the perception of Arab Israelis as an underclass that does not serve in the army and are consequently considered to be less loyal citizens.

It should be remembered that proposals to turn the Declaration of Independence into the Nation-State Basic Law were rejected. The statement in the Declaration of Independence on “complete equality and social and political rights for all citizens, regardless of religion, race, or sex” has no parallel declarative expression in the Nation-State Law.

Harsh Criticism


The fierce criticism of the legislation does proclaim a slippery slope toward the demise of Israel’s democratic nature, and decries the law as dangerous, nationalistic, and anti-democratic. This criticism does not relate to the law alone, but sees it as emblematic of Israel’s descent into anti-liberal and anti-democratic realms. In this context, the general argument relates to a recharacterization of state identity that arises from the law. The law, it is claimed, fixes the identity of the State of Israel on the Jewish basis, causing severe harm to the democratic basis, which should be of equal value.

The strongest argument is that the law undermines two basic values: “equality” and “democracy.” In this connection, Article 7 of the law is the subject of particularly sharp criticism. This article on Jewish settlement reads: “the state sees the development of Jewish settlement as a national value, and shall act to encourage and promote its formation and establishment.” The argument is that only encouraging Jewish settlement discriminates against Israel’s non-Jewish minority.

In addition, there are arguments against the law’s sole designation of Hebrew as Israel’s official language and its relegation of Arabic to “special status.” It should be noted that British Mandatory regulations granted official language status to English, Arabic, and Hebrew, but this has not been the case in Israeli legislation after the establishment of the state.

According to the critics, the law has brought to the surface a deep sense of discrimination and rejection among Israel’s minority citizens, which has resulted in well-attended protest demonstrations in Tel Aviv’s Rabin Square and elsewhere in the country. At any rate, opponents of the Nation-State Law vehemently assert that not only does it enshrine discrimination and hobbles the principle of civil equality over which there should be no compromise, but it also aggravates internal fault lines and further threatens the stability of Israeli society and its democracy.

Opponents of the Nation-State Law dismiss the contention advanced by its supporters that the law is a response to judicial activism and the exaggerated power of the judiciary, and argue that the law grants legitimacy to those who wish to diminish the Supreme Court’s power and legitimacy. According to them, the legislation is an assault on the separation of powers principle, and limits the ability of the judicial branch to protect minority groups from the tyranny of the majority.

The controversy prompted by the Nation-State Law reveals the conceptual rift that characterizes Israeli society. Placing the law on the agenda and the urgency of cementing its formulation have, at this stage, resulted in exacerbating a deep rift within Israel, rather than healing it. The Nation-State Law has also had an impact on Israel-Diaspora relations.

The Nation-State Law and World Jewry


The Nation-State Law has provoked different reactions among Jewish community leaders and activists outside Israel. It appears that in the Diaspora too, there is disagreement over the law’s meanings and implications.

In the United States and in Europe, Jewish leaders have criticized the law as an affront to Israel’s minorities and the fundamental principle of civil equality. A letter cosigned by various leaders of North American Jewry was sent to the chairman of the Jewish Agency, expressing their deep concerns in regard to the law, which they fear is liable to destroy one of the basic attributes of modern democracies – “equal rights for all.” They fear the demotion of the Arabic language from official to “special” status erodes the principles of equality and pluralism, and weakens Israel’s democratic character.

In addition, there is worry throughout the Diaspora that the Nation-State legislation further damages Israel’s image internationally. The law is seen as a wedge that will widen the rift between Diaspora Jewry and the State of Israel, and make it harder to defend Israel against the hostile and defamatory forces of de-legitimization. Some contend that the law will likely be detrimental to the future of the peace process between Israel and the Palestinians.

Proponents of the law emphasize that it is an expression of the continuity of the connection between the Jewish people and the State of Israel, and represents an essential public declaration that Israel is the nation-state of the Jewish people.
Others contend that the law is no different than the constitutions or national laws of European countries, and is a legitimate expression of Jewish nationalism in Israel. They believe the law protects the natural rights of Jews to a Jewish state in the land of Israel, and stands against attacks by the international community, Israeli Arabs, and post-Zionist Jews.

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