The most important and central issue with which the State of Israel has to contend is that of determining its character as a democratic Jewish state. Resolution of this issue will determine the state’s identity and, for good or ill, its future and its very legitimacy. At the heart of the tension lie two questions: What constitutional and legal elements may be derived from Israel’s “Jewish” component, and how do these elements accord, if at all, with the state’s liberal-democratic obligations?
The adjective “Jewish” may contradict the adjective “democratic” in one of its two meanings – the religious and national meaning. In the religious sense of “Jewish” a situation could arise where the Jewish state might undermine Israeli citizens’ basic freedoms, including freedom of worship. A Jewish state of this kind, aided by coercive mechanisms available to the state for achieving religious goals, cannot be democratic in the full and commonly understood sense of the term, as by its very nature it would curtail its citizen’s freedom of religion and the religious pluralism of its constituent communities. In the national sense of “Jewish,” the state’s Jewish component could undermine the principle of equality between citizens, an essential part of the state’s liberal-democratic outlook. In this regard, the democratic component is harmed not by the religious features that may be subsumed within the concept of a “Jewish state,” but by the ultranationalist character that can be associated with this concept, an ultranationalism that would favor Israel’s Jewish citizens and discriminate against its other citizens, those belonging to minorities.
This being the case, when we discuss the question of Israel’s identity as a democratic Jewish state, this is not a theoretical debate over a long-term vision, and the answers to that question dictate the precepts that define the underlying existential struggles within Israeli society. Israel faces momentous geopolitical challenges, but the big questions in this regard involve internal tensions concerning the very fact of Israel being defined as a democratic Jewish state – and those tensions could potentially shatter the country from within.
Is it possible to have a Jewish state compatible with democratic principles where there is real substance to the state’s Jewish-identity component? And can that substance meet the test of liberal and democratic political thought?
To clarify, let’s ask the following question: Could a Catalonian state, established on secession from Spain, be a democratic and liberal Catalonian state? Many Catalonians in Spain want a state of their own with its capital in Barcelona. In such a country, as in all European nation-states whose official language is the language of its constitutive nationality, such as Denmark, Finland, Norway, Germany, and the Czech Republic, Catalan would be the official language, the state’s symbols would be rooted in the culture of the Catalonian ethnocultural majority, the state calendar would be oriented toward Christianity and would mark Catalonian historical and cultural events, the national anthem would reflect the country’s Catalonian identity, and the state education system would impart the Catalonian national and cultural heritage to its young generation. The Catalonian state would allocate tax revenues at its discretion, based on such considerations as the welfare of its citizens, and its foreign policy would be determined by, among other things, the interests of the Catalonian ethnocultural majority. One may reasonably assume that Catalonia’s immigration policy, like the immigration policies of the Scandinavian and other European countries that limit immigration in order to safeguard their national identity, would ensure the maintenance of a Catalonian majority within the state’s borders.
The situation described above is by no means unusual in modern Western history. The Norwegians, for instance, demanded all of the aforementioned conditions when they separated from Sweden under threat of war in 1907, based on the rationale that they see themselves as a distinct ethnocultural group. Like Norway, the envisioned Catalonia would not be neutral in any sense. But it is also true that there is no reason why it should be, given that those belonging to the Catalonian ethnocultural population have the right to self-determination, including a sovereign territory where the Catalonians are the majority, and where a common cultural space has been created in which the Catalonian cultural and historical identity is expressed.
What we may conclude from the Catalonia test is that whether Catalonia or any other country is a liberal state does not depend on its being neutral in terms of its identity. The quality of the democratic system in such a nation-state may be assessed in terms of two other major criteria. One is whether the character of the state as a Catalonian nation-state undermines the political, economic, or cultural rights of the non-Catalonian minorities living in Catalonia; the other is whether Catalonia would accord the right to self-determination to other national groups such as the Basques – a right that many Catalonians are currently demanding for themselves.
Upholding these two criteria is what distinguishes democratic nation-states from ultranationalist states, and both criteria are themselves the great test of the nation-state. Ultranationalist states are sovereign frameworks whose national identity translates into negation of the political, economic, and cultural rights of their resident minorities. Nor do ultranationalist states support the right to self-determination for other groups living alongside or within them. Ultranationalists do not regard such groups as actual peoples, and they relate to them as invented nationalities, which, as such, are not entitled to national self-determination.
Israel’s legitimacy as a nation-state will be tested in terms of the same criteria by which other nation-states are assessed. If, in the name of the Jewish-state ideal, Israel’s Arab citizens are denied their rights, then Israel’s legitimacy as a Jewish nation-state will suffer a deadly blow. By unequally allocating resources for infrastructures and education, by distributing land in a discriminatory fashion, and by failing to recognize new localities founded by the state’s Arab minority, Israel risks transforming from a democratic nation-state into an ultranationalist nation-state. Furthermore, the principle of civil equality ought to ensure the right of all citizens to participate in government fully and on the basis of appropriate representation. Disqualifying Arab parties on principle from membership in the ruling coalition is another manifestation of an ultranationalism that cultivates the idea of “the enemy within,” making the minority an entity that has to be excluded and whose member citizens are of lesser status.
Systemic inequalities of this kind constitute unjustifiable discrimination against the state’s Arab citizens. Not only that, but they also undermine the legitimacy of the state of the Jews. A Jewish nation-state can, and must, accord full equality to its Arab citizens in all areas where it has failed to do so thus far, and it must recognize those citizens as a national-cultural minority group whose Arabic language is the state’s second official language, whose calendar is recognized as an official calendar, and for which it operates a public education system that cultivates the Arab cultural traditions of its citizens.
As with other nation-states, the second condition that Israel must meet in order to be considered a democratic nation-state is that of recognizing the rights of the Palestinian people to national self-determination in the West Bank and the Gaza Strip – the same right we demand for ourselves. The denial of this right, and the settlement policy that aims to create a reality in which the exercise of that right is impossible, undermines Israel’s legitimacy as a Jewish nation-state. It should be noted that fulfillment of the first condition is entirely in our hands, but that denial of the right of Arab citizens to governmental participation is, unfortunately, becoming the issue on which the political identity of Israel’s growing ultranationalist camp is based. Regarding the Palestinian right to self-determination, things do not depend solely on Israel; they also depend on the Palestinians being ready to live in peace and security alongside Israel.
The liberal-democratic obligation imposes yet another constraint on the “Jewish state” definition, one related not to the principle of equality but to that of liberty. Classical liberalism sees the state’s role not as dictating how communities or individuals should live their lives, but as safeguarding their right to maintain their way of life as they understand it, so long as they grant a similar right to the individuals and communities that live alongside them. Israel, as a democratic state, is obligated to safeguard its citizens’ freedom of religion and their freedom from religion. Beyond the basic principle that would invalidate religious legislation, based on liberal ideals of freedom of religion and freedom of conscience, opposition to the use of the state’s coercive power on matters pertaining to Jewish identity has yet another foundation: Israel is supposed to be the state of the Jews and not just the Jewish state. When Israel, through coercive power, becomes the arbiter on issues of modern Jewish identity, it inevitably alienates many Jews from the state. Because Jews are so deeply divided on these questions, every decision the state makes will undermine Jews’ sense of belonging to Israel. Israel cannot, therefore, simultaneously be a “Jewish state” in the halachic sense, either fully or in part, and also the “state of the Jews.”
Assuming that Israel’s commitment to liberal democracy imposes on the state’s Jewish identity the limitations dictated by the values of freedom and equality – what are the elements on which its identity as a Jewish state is based?
Israel’s Jewish character is supposed to be embodied in four components. The realization of these components does not negate the possibility of Israel being a liberal-democratic state.
The first and most central component is Israel’s character as the actualization of the Jewish nation’s right to self-determination. Zionism, in its most primary and basic sense, was a national liberation movement that aimed to deliver the Jews from the historical disgrace of dependence on other entities to determine their fate. Zionism sought to achieve sovereign means – including political, military, and economic might – that would enable the Jews to define themselves and determine their own fate. The Jews’ historical experience in exile certainly gives them the right to demand self-determination like other nations who have that right.
The most basic characteristic of Israel as a Jewish state is thus the state’s responsibility for the fate of the Jewish people as a whole, as it was established as an expression of pan-Jewish solidarity. Were it responsible solely for its own citizens, it would be merely an Israeli state. Because it bears this responsibility, it has the right, and also the duty, to use the tools of collective action made possible by the state to ensure the welfare of, and to defend, the entire Jewish people. For example, if a Jewish community somewhere in the world is under physical or economic threat due to its Jewishness, Israel must provide it with aid, to the extent possible, using economic, political and, in certain cases, military tools.
The second component that defines Israel as a Jewish state is the Law of Return. This law, which is closely related to the first component, that of national self-determination, states that all Jews, wherever they are, have the right to Israeli citizenship, and that they can make Israel their home should they so wish. The State of Israel was founded, among other things, in order to prevent situations where Jews seeking refuge would have to knock on the doors of countries that have no desire for their presence. Given the distress suffered by Palestinian refugees in Arab countries, there is justification – for the same reason that we justify our Law of Return – for a similar law in the future Palestinian state, one that would give Palestinians wherever they are the immediate right to citizenship in their country.
Israel’s Law of Return is not justified solely on the basis of possible distress, although the extensive use of that argument was rooted in such a reality. If ethnocultural groups have the right to self-determination, that is, the right to a sovereign space where they are the majority group and where their culture can develop and flourish, it would be strange for members of such a group not to have the right to membership in that space. But it is important to note: the Law of Return, with these two justifications, will be legitimate only if, alongside it, there are additional options for obtaining citizenship. If the Law of Return is the only option, the state’s national character will undermine the rights of minorities or immigrants who do not belong to the national majority. As noted, a nation-state’s legitimacy depends on concern for its national character not devolving into violation of the rights of the state’s minorities. This is also true regarding immigration policy or the various means taken to maintain the state’s ethnocultural majority. Population transfer or denial of citizenship by transferring territories to another country are illegitimate means of maintaining a majority, as they come at the expense of the minorities’ basic rights. This is true as well with respect to options for obtaining citizenship: a foreign worker whose children were born and grew up in Israel should be entitled to citizenship, as should men and women who have married Israeli citizens.
The third component that defines Israel as a Jewish state has to do with features of the public realm, such as the symbols of the state, its official language, and its calendar. These features are drawn from symbols of Jewish culture and tradition such as the menorah, the Star of David, and the Hebrew language. The state calendar will accord with the Hebrew calendar, and the Jewish Sabbath and holidays will be the official days of rest. These cultural features of the state do not negate the standing of Arabic as an official language in Israel, or state recognition of the Muslim calendar. Attributes of this kind – state symbols, calendar, and official language – are connected with the state’s majority culture; such features exist in Western European countries as well. In Sweden, Finland, Norway, the UK, Switzerland, and Greece the cross is part of the national flag. The presence of state symbols of this kind rooted in the majority religious and cultural identity does not undercut the state’s democratic and liberal character, as that character, again, is safeguarded by other limitations that apply to the nation-state.
The fourth and most important component has to do with the public education system operated by Israel as a Jewish state. The public education system is supposed to be committed to the continuity and flourishing of Jewish cultures – “Jewish cultures” in the plural, because within the Jewish nation there are completely different ways of understanding what Jewish life is and what “Jewish education” means. In this commitment to Jewish culture, Israel would be no different from many other modern countries whose public education systems teach material pertaining to the nation’s unique cultural identity. In France, the schools teach Voltaire, Descartes, and Rousseau, while in Germany they teach Goethe, Heine, and Schiller. The history, literature, languages, and sometimes also the religions of societies around the world are preserved and flourish by means of public education systems. A Jew who is a German, American, or French citizens can finance his children’s Jewish education out of his own pocket, in a private framework. Israel, as a Jewish state, provides Jewish education via public funding, just as in other modern countries the public education systems provides instruction in the national cultural heritage. This commitment encompasses public funding for educational institutions serving Israel’s minority communities, meant to ensure the continuity of these other cultures, e.g., Muslim Arab or Christian culture.
These four components that define Israel as a Jewish state give it real national substance as a sovereign space in which the Jewish people exercises its right to self-determination, ensures a homeland and a home for all Jews wherever they are, creates a public realm with Jewish symbols and content via language and calendar, and maintains a public education system that promotes the continuity and flourishing of Jewish cultures. These features do not impair the state’s democratic character so long as they do not reach the point of undermining the equal political and economic rights of the state’s minorities. Not only that, but these characteristics also make it possible to recognize the minorities as having the status of minority cultural communities. It should be emphasized that these are the only components that should determine the state’s Jewish identity, and nothing else. If Israel succeeds in maintaining them wisely and intelligently, that will be enough. Any attempt to “Judaize” the state beyond these four components will either transform it from a democratic nation-state into an ultranationalist state, or, alternatively, it will violate the principles of liberty, freedom of religion and freedom from religion, while undermining Israel’s character as the state of the Jews.
Moshe Halbertal is Professor of Jewish Thought and Philosophy at the Hebrew University of Jerusalem, Gruss Professor of Law at New York University School of Law, and a member of the Israel Academy of Sciences and Humanities.