13.08.2018 analysis by Dr. Avner Inbar

Jewish, or Democratic? The True Aim of Israel’s ‘Nation-State’ Law

The public outrage regarding the recently ratified "Nation-State" Law has focused mainly on its various clauses and the discrimination against Israel's ethnic minorities therein. However, one must inspect the true meaning behind the Nation-State Law and the motivation of its authors.
After it was ratified by the Knesset on July 19, Israel’s so-called nation-state bill, designed to define the state more exclusively on ethnically Jewish lines, joined the short list of Basic Laws that make up the country’s ersatz constitution. A photo of grinning Knesset members from the right-wing Likud party, commemorating the occasion by gathering for a selfie around a smirking Prime Minister Benjamin Netanyahu, quickly went viral. It took a few days for the smiles to fade, as leading members of Netanyahu’s coalition began to experience buyer’s remorse. 

Much to their surprise, Israel’s ethnic minorities—specifically, the Druze community, renowned for its loyalty to the state and high representation in the Israeli military—were not pleased with a law that ceremoniously demotes their civic status. Naftali Bennett, leader of the ultra-nationalist Jewish Home party, took to Twitter to opine that “the way in which the legislation was carried out was extremely offensive, specifically to those who threw their lot with the Jewish State. Of course, that was not the intention of the Government of Israel… The responsibility to mend the rift lies with us.” Moshe Kahlon, leader of the centrist Kulanu party, followed suit by asserting that the law was “enacted hastily. We made a mistake and we will fix it.” 

The law, however, was not enacted hastily. It was certainly enacted foolishly, which is probably what Kahlon wanted to say, as haste cannot be attributed to a legislative process that stretched over seven long years.

The bill originated in a small conservative think tank in Jerusalem and was introduced in the Knesset in August 2011 by members of Likud and the now-defunct Kadima party. The original bill contained several provisions that did not make it to the final law—most significantly, it granted “Jewish law” a special status in legislative and judicial procedures. Several previous attempts to bring the long legislative process to completion were thwarted by Netanyahu himself, who seemed to prefer the political advantages of a divisive public debate over the bill to the questionable benefits of passing it. It may have been the pressures of his mounting legal troubles, or the scent of the approaching elections, that changed Netanyahu’s political calculus. Suddenly, a bill that languished in the Knesset under three of his governments became “a law of the highest importance to ensure the core of Israel’s existence as the nation-state of the Jewish people.” As is his wont, Netanyahu failed to specify against what, precisely, the national existence needs to be ensured. 

On its own, the ratified version of the nation-state law is less discriminatory and inflammatory than previous iterations. It consists of an odd combination of trivial facts—“the name of the State is ‘Israel’”—vague political declarations—“the state views the development of Jewish settlement as a national value”—and institutional principles— “the state’s language is Hebrew.” It’s still too early to tell what the law’s actual implications might be, since the few provisions that have practical consequences are open to interpretation, and many of their worst possible outcomes are already part and parcel of government policy. It is doubtful if the law changes anything in Israel’s constitutional situation.

The real significance of the law lies instead in its symbolism and underlying ideological rationale. Riad Ali, a Druze journalist for Israel’s public television network, best captured them in an impassioned, six-minute-long critique of the law that he delivered on camera. A visibly shaken Ali said it had shattered his “Israeli dream.” “I can no longer feel like an Israeli because the word ‘Israeli’ was expunged from the dictionary,” he added. “There are now only Jews and non-Jews. And I’m not Jewish.”

To be clear, Israel’s ethnic minorities, who make up some 20 percent of the population, have always suffered from overt discrimination in various forms. Israel has separate immigration laws for Jews and non-Jews, and has in recent years made it nearly impossible for Palestinian spouses of Arab citizens to gain citizenship. Widespread discrimination in allocation of public lands and funds is often unofficial, for example, by restricting certain benefits to army veterans. But the fundamental inequity was usually justified on instrumental grounds: Jews needed special status in their homeland because of the persecution they endured in the past and the risks they face in the present. Israel’s Arab population could always take solace in the fact that their second-rate status, while explicit, is not formal. As Israeli citizens, they stand on equal footing to the Jewish majority. And they could, in theory, fall back on Israel’s Declaration of Independence, which guarantees “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”

The new law reneges on that assurance, and its confirmation as a Basic Law—which in Israel is essentially equivalent to a constitutional amendment—threatens to redefine the relationship between Jews and non-Jews in the country. According to the dominant right-wing narrative justifying the law, the delicate balance between the Jewish and democratic sides of Israel’s character had been disrupted ever since the 1992 Basic Law on Human Dignity and Liberty, widely considered the crown jewel of Israel’s liberal “constitutional revolution” of the 1990s. That legislative achievement, conservatives complain, left Israel with an “imbalanced constitutional value system,” since it codified a commitment to universal human rights but left particular “Jewish values” outside the constitutional framework. Hence the need for a Basic Law dedicated to the reassertion of “the values of Israel as a Jewish State.” 

But these values have only one possible meaning in this context: Jewish hegemony. The law expresses this “value” when it stipulates that only Jews are entitled to national self-determination in Israel, grants the Arabic language a “special status” as opposed to recognizing it as an official language, and recognizes Jewish settlement as a “national value.” But the devil is not in the details. It is in the underlying message they are intended to convey: Jews are the landlords in the State of Israel, while all other citizens are merely dwellers. 

Advocates of the nation-state law insist that it simply doesn’t say that. But the law makes no sense without the assumption that Israeli Jews cannot be satisfied with expressing their right to national self-determination through the civic, democratic process. Otherwise, what’s wrong with the existing constitutional framework? Wasn’t it the democratic process that enabled Jews to shape Israel’s public sphere, and devise its entire legal structure, including, for example, naturalization laws that determine different immigration policies for Jews, who are always welcome, and non-Jews, who almost never are? What more could they want? Perhaps some sort of super-status that trumps the authority of the democratic process they share with non-Jews.

If anything, the nation-state law makes clear that for the right-wing zealots currently dominating Israeli politics, from Netanyahu to Naftali Bennett, national self-determination for Jews in Israel is emphatically not what the Jewish State is about. That is because this noble goal is already easily achievable through democratic politics. There is nothing in Israel’s extant Basic Laws that prevents Jews from fully expressing their collective identity and exercising their collective rights through the standard mechanisms of self-rule. That was the original intention of Zionism and still is the authentic meaning of the idea of a Jewish State. There is no need to counterbalance democracy with Jewishness when Jews enjoy a stable democratic majority, and no justification to do so if, someday, they won’t. 

The nation-state law, instead, is meant to ensure much more than self-determination. Its true aim is hegemony: a formal distinction between the civic status of Jews, as full members of the body politic, and non-Jews, as junior citizens—structurally subordinate to the sovereignty of Jews. The law itself translates this distorted reasoning into relatively mild legal provisions. But it is extremely naïve to believe that the law is really intended to correct an inadvertent imbalance in Israel’s past constitutional revolution, rather than to usher in a new one.

Originally published in World Politics Review, 8.9.2018
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