Prof. Alon Harel
Board Member
26.08.2013 analysis by Prof. Alon Harel
Photo: Hadar Naim
Photo: Hadar Naim    

How the proposed Basic Law: Israel — Nation-State of the Jewish People Actually Impairs Judaism

The proposed Basic Law is not only invalid because it is injurious to non-Jewish people, but also because it takes aim at Jewish people and Jewish heritage itself, turning that heritage into a political tool in the hands of a single Jewish group

Recently, a new proposal was submitted as a part of a series of attempts to legislate ‘Basic Law: Israel — Nation-State of the Jewish People’. It was submitted by MK Ayelet Shaked (Jewish Home) and MK Yariv Levin (Likud), and is a softened version of an earlier proposal submitted by MK Avi Dichter (Kadima) during the previous Knesset. How do the two differ? The current proposal, to take one example, does not contain a segment previously included in the proposal under Article 4: the elimination of Arabic as an official language of Israel. Nor does the current version incorporate one element of Article 9(b), which explicitly allows distinct religious or national groups to maintain separate communal settlements.

The elimination of these problematic sections ensures wider support for the new proposed law. Supporters of the current version believe it to be necessary to combat the voices calling to annul or dampen the Jewish character of the State of Israel. Those who oppose the law, on the other hand, are worried that the softened version will critically impair the civic equality between Jewish and non-Jewish Israeli citizens and that the law will serve as an excuse to intensify the severe, pre-existing discrimination minorities face today in Israel.

In this article I claim that the proposed law is wrong not only as a result of the injury it does to non-Jews. This is perhaps not even its most central failing. The proposed law is invalid because it is injurious to the Jewish people and to Jewish heritage itself, as it is based on simplistic assumptions about the character of Jewish tradition. To understand the nature of this injury we should focus on Articles 9 and 10 of the proposed law. Article 9 states that “[t]he State will act to safeguard the heritage and the cultural and historical tradition of the Jewish people and foster it in Israel and the Diaspora.” Article 10 states that “[t]he State will act to approve, for every resident of Israel irrespective of religion or nationality, the preservation of his/her of culture, heritage, language and identity.”

The contrast that troubles critics is the disparity between the positive obligation the law imposes on the state — “to safeguard the heritage and the cultural and historical tradition of the Jewish people” — and the second, weaker requirement “to approve, for every resident of Israel…the preservation of his/her culture.” Does the state not have a duty to act to preserve the Islamic or Palestinian tradition given the existence of a Palestinian minority in Israel? Does the Arab minority not possess the right to active preservation by the state of its culture and Arabic language?

But the impact of the injury done to the Arab minority in these sections extends further — to the Jewish majority. There are two primary reasons for this. First, there are many Jewish groups in Israel who preserve non-Jewish traditions. Take, for example, the many Russian Jewish immigrants in Israel who take great pains to maintain their language and their heritage. Active support for the Russian language or preservation of Russian cultural tradition certainly does not fall under the purview of Article 9 of the law (despite the fact that it represents a major part of Russian Jewish life and its milieu). Preservation of non-Jewish groups’ culture and tradition will hence not factor into the state’s duties.  

However, the real harm done by Article 9 of the law lies in other, less accepted interpretations of Jewish culture itself. As it stands, Article 9 in the proposed law assumes that there is one, singular heritage and cultural and historical tradition of Judaism, and consequently all the state need do is identify it and act to promote it. Unlike Article 10 of the law, that allows non Jewish citizens to define their culture for themselves, Article 9 subjects the definition of Jewish culture to the judgment of the state, i.e. to the official interpretation of the political majority in Israel.

Given the political reality in Israel today, this perspective should concern many Jewish groups. For example, presumably Reform Jews will not reap the benefits of the state’s efforts to preserve Judaism, simply because reform culture and customs will not be recognized as part of the Jewish culture. Therefore, the most they could ask for and likely the best they could hope to enjoy would be for the weak protection provided by Article 10 to non-Jewish cultures. After the adoption of the law, this will likely apply to other Jewish groups as well. The ultra-Orthodox, for example, might be exposed to the danger that their culture, too, might not be recognized as Jewish enough, or even be declared non-Jewish, after which they would be unable to take shelter under the protection of the positive state obligation provided by Article 9 of the law.

In other words, the arrangement in Article 9 places the definition, identification, recognition and preservation of Jewish culture and tradition in the hands of a chance political majority. A change in this chance political majority would mean a change in what is officially recognized by the state as “Jewish culture”. Moreover, the fate of unrecognized interpretations of Judaism may be enough to make the situation, in some respects, even worse for non-Jewish cultures. The exclusion of these traditions from state sponsorship will bear symbolic meaning: the state proclaims that it does not identify the culture and tradition of thesegroups of Jews as a part of the Jewish culture and heritage.

There are those who will say, rightly, that any and all legal recognition of the existence of a Jewish State obligates the state to make decisions that impact the essence of Judaism. The Law of Return, for example, obligates the state to define who is a Jew, and as is known, these definitions are controversial. However, I believe that specifically because of the all-encompassing, comprehensive nature of the proposed “Basic Law: Israel — Nation-State of the Jewish People”, it may very well exacerbate the difficulties already inherent in such legislation. The natural result of the law will be that the state, and in its footsteps the courts, will turn into the battleground for interpretations of Judaism. Instead of strengthening Judaism, the law will turn various state arms into arenas in which different economic and ideological interests determine and define the scope and content of Jewish culture and heritage.

At the end of the day, will any particular change to the law’s formulation, or even the elimination of Article 9, solve this problem? I do not think so. The logic standing behind the proposed “Basic Law: Israel — Nation-State of the Jewish People” deposits the definitions of Judaism — culture, tradition and heritage — into the hands of politicians. In doing so it adversely affects the liveliness of Jewish culture, and thereby the diversity and richness of Jewish heritage.

For Molad’s position paper on “Basic Law: Israel — Nation-State of the Jewish People”, click here.

Share article