Jewish State Law Unintentionally Broaches Israel’s Biggest Taboo

Illustration: Prime Minister Binyamin Netanyahu (Image credit: Government Press Office of Israel)

Israel’s public discourse has turned raucous of late over the new Jewish nation-state basic law (full text in Hebrew here), which together with the other basic laws has a status akin to a constitution. The law, by all appearances unintentionally, raises Israel's most taboo subject: How can the Jewish state with a “unique right of national self-determination” only for the Jews also be a Western democratic state of all of its citizens — wherein that unique right can be overturned by a simple parliamentary majority?

While the law made some welcome statements affirming Israel’s Jewish character, and consequently caused a media frenzy, it made no concrete steps to formulate what it actually means to be a Jewish state on the practical policy level; analysts have determined that “it doesn’t change anything practically.” In this way it opened the dialogue on the state’s most important contradiction, and simultaneously ensured that the discussion would be moot and merely symbolic.

Passed by the Knesset on July 19 by a miniscule majority of 62-55, the one-page-long law had been stuck in committees for years, ever since 2011. Critics have particularly jumped on several clauses in the legislation, claiming they are “racist” or pave the way for “racism.” Strangely a nation’s right to sovereignty in its nation-state appears to be an inherently discriminatory matter for these critics only when that nation is Jewish, but not, for example, Korean. One such clause targeted for criticism redefined Arabic as a “special” language instead of an official language, even though it explicitly states that the practical status of Arabic will not change by one iota as a result of the law.

But the biggest bombshell in the bill was clause 1C, which reads: “Realization of the right to national self-determination in the State of Israel is unique to the Jewish people.” Herein lies the gist of what has made the law controversial, for based solely on how it is phrased, the reference to unique rights of national self-determination would seem to indicate that only Jews are to determine the future and political structure of their state. After all, if national self-determination is the unique right of the Jews, the law would seem to bestow them with a different national status in the management of their ancient homeland. This would indeed be a dramatic shake-up of Israel’s national formulation, enshrining the Jews’ right to be captains of their own ship regardless of the democratic constraints of fickle demography.

Yet the law offers no practical policy of how this “unique right” is to be implemented in Israeli statecraft. What is more, the clause’s caveat of this right being “unique” but not “exclusive” would seem to leave open the possibility of other peoples rising and claiming the right of national self-determination in Israel in addition to — or potentially in place of — the Jews. This reading is supported by comments from Prime Minister Binyamin Netanyahu and the rest of his government, who have stated that the law is in no way meant to negatively impact the rights of Israel’s non-Jewish citizens — such as their right to vote and determine the state’s future — which in any event are enshrined in two other basic laws: one on the Knesset and one on human dignity and liberty.

And yet what does a “unique right to national self-determination” for a specific group actually mean when that self-determination, in practice, is simply granted to a majority of the electorate, regardless of their national affiliation? In this way the law clumsily touches on a sensitive and key question without addressing the practical implications of self-determination, and without any definition of what policy should derive from that assertion.

Empty Slogans

The hollow nature of the law on this key question is further indicated by its closing line, which states that the Jewish nation-state law can be changed by another basic law passed by a majority in the Knesset. This stipulation is not included in many basic laws, and even those that include a similar limitation often curtail its application to only certain clauses rather than the entire law.

It follows that were a non-Jewish majority to arise in Israel, the law explicitly enables them to vote Israel’s Jewish nature out of existence and reshape the state in their image. Surely there is no more poignant indication of how the law does not change the dominance of Israel’s democratic nature over its ostensible Jewish nature.

This potentiality of Israel’s Jewishness being revoked is the fundamental contradiction inherent in the juxtaposition of the state’s Jewish character with its democratic structure — a taboo topic from which the public eye has fastidiously averted its gaze, ever since the establishment’s crackdown on the only figure who dared to raise the question, former MK Rabbi Meir Kahane HY”D. Back in the 1980s, Rabbi Kahane posed this very question in the Knesset and was promptly banned for being “racist.”

Even without waiting for a non-Jewish majority, the language of the law demonstrates how fickle this new redefinition of Israel as the Jewish nation-state is, given that 55 legislators voted against the law and two abstained. Sixty-one makes a majority in the 120-seat Knesset, meaning that it would not take much for the law to be revised beyond recognition. Apparently such is the ephemerality of the Jews’ “natural, cultural, religious, and historical right to self-determination” in Israel, as espoused in clause 1B of the law.

Illustration: Jerusalem Day Flag Parade (Image credit: Mark Neyman/Government Press Office of Israel)

In another sign of the law’s lack of practical impact and apparently limited intent, the final draft contains a vague platitude on the value of Jewish towns, which is made ironic by the government’s unofficial de-facto housing freeze on Jewish construction in Judea, Samaria, and parts of Jerusalem that has generally been ongoing since 2013. Clause 7 reads: “The state views the development of Jewish settlement as a national value, and will act to encourage and advance its establishment and strengthening.”

The original draft of the bill called for Jewish towns to be able to preserve their Jewish character by not allowing non-Jews to buy up houses and land, thereby changing the nature of the town. Education Minister and Jewish Home Chairman Naftali Bennett was the one who watered down this preservation of Jewish homes by rewriting the clause and emptying it of practical content.

The issue of maintaining Jewish communities is an acute problem for many, particularly in the Galilee where Arabs, long a majority in the region, are buying their way into towns such as in Nazareth Illit and Afula and changing their character in a clear demographic struggle. In some cases this has taken the form of organized Arab price fixing campaigns; earlier this year the town of Kfar Vradim froze tenders after over half were bought up by Arab families.

It should give one pause that most Arab towns and neighborhoods remain effectively judenrein (free of Jews) with impunity, as a result of the violence threatening any Jew who would dare step foot in them; Jewish attempts to live in Arab majority areas are condemned at large and treated as “extremist settlement activity.” Meanwhile the idea of Jews maintaining their communities as Jewish is considered abhorrent and taken out of the Jewish state law by those professing to defend Jewish rights to the land.

Fallout and Damage Control

These details of the law indicate it functions as not much more than a campaign ploy without practical merit. Indeed, there are those suggesting that Netanyahu likely intended the law to serve as a campaign tool for elections which potentially loom as early as October. Indeed it may have a slight bolstering effect in the ballots, as a Panels Research poll found 58% of Israeli Jews support the law while just 34% opposed it, indicating general approval.

Aside from the Jewish Israeli public, most reactions have ranged from chagrin to indignation. The E.U. quickly condemned the law, voicing its “concern.” Likewise CNN panned the legislation for not explicitly mentioning “equality.” Vox went a step further by decrying the law as “the culmination of years of institutional discrimination.”

That a law defining Israel as the national homeland of the Jews should cause such global consternation is ironic, given that 100 years ago, the British Balfour Declaration called for a “national home for the Jewish people” in Israel — a call adopted by the League of Nations in 1922 in establishing the British Mandate. Likewise Israel’s Scroll of Independence enshrined “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State,” when it established “a Jewish state.”

More locally the backlash against the law has consisted of Arab MK Zouheir Bahloul of the leftist Zionist Union party resigning in protest, while the Palestinian Authority (PA) was up in arms over “racism” and “apartheid,” despite the fact that the PA itself bans selling land to Jews on pain of death. For his part, Israeli President Reuven Rivlin, whose job is to be an impartial symbol of the state, vowed to sign the law in Arabic in protest.

But the most significant backlash to the law was seen in the Druze community launching massive protests while egged on and apparently funded by leftist groups, as well as challenging the new law in the High Court of Justice, and calling to refuse to enlist in the IDF. This specter of a drop in the Druze military draft appears to have shaken the government to its core, as the community of over 100,000 has made a point of being highly active in the army.

In consternation, the government has been engaged in damage control, with Bennett saying on Twitter that after speaking with members of the Druze community he realized the way the law was passed harmed them. He called for a new law to placate the Druze by giving them a symbolic nod in a July 28 tweet, in which he proposed “a special law recognizing the importance of the alliance with the Druze and Circassian communities and *every* minority that ties its fate to the State of Israel,” and noted that on July 25 he had given Netanyahu “a proposal in this spirit and I will act to realize it.” Bennett was joined by Finance Minister and Kulanu Chairman Moshe Kahlon, who likewise backpedaled and said the government was “wrong” to pass the law too “hastily” and needs “to fix it.”

Netanyahu then got into the picture and held several urgent meetings with leaders of the Druze community, while setting up a team to consider a “course of action.” They lost no time in coming up with a solution, essentially giving the Druze community a number of perks in order to calm their protest over the law. The outline of the gesture, which was agreed on by Netanyahu’s team on August 1 before being handed over to additional Druze community leaders for consideration, essentially adopted Bennett’s idea of a “special law” and added to it. According to an official press release it consists of:

“1. Anchoring in law the status of the Druze and Circassian communities. The law will esteem the contribution of the Druze community to the State of Israel... and will include support for community religious, cultural and educational institutions; the strengthening of Druze towns and villages, including solutions for residential construction, and the establishment of new communities as necessary...

2. Anchoring in law the eligibility for benefits of minority community members — of all faiths and communities — who serve in the security forces, to achieve social equality.

3. Anchoring in a basic law recognition of the contribution of those — of all faiths and communities, including the Druze — who take part in the defense of the state.”

The quickly drafted outline of “gestures” may strike some as odd when contrasted to what the Jewish state law gives the Jews. The outline explicitly calls for “residential construction” in order to “strengthen Druze towns and villages” and “establish new communities”; the Jewish state law was stripped by Bennett of its call for Jewish towns to preserve their identity, making do with talk of “encouragement” that comes amid an unspoken building freeze.

Further, one might ask why “benefits” for those serving in the security forces should apply only to “minorities” and not to all soldiers, particularly in a state defined by the new law as Jewish. If they are a reward for service, how is minority service more meritorious, and more importantly, why should the granting of “social equality” be contingent on military service? And finally, what need is there for a basic law recognizing those who defend the state when there are numerous opportunities for that recognition to be given already, including Israeli Memorial Day?

Lost Opportunity?

However, this outline was not the end of the state’s gestures of contrition over having dared to discuss Israel’s Jewish nature. On August 5, Netanyahu gave his reasons for passing the Jewish state law in an official statement, even as he launched a hastily assembled ministerial committee to find an antidote to the ire of the Druze.

“Israel is a Jewish and democratic state. Individual rights are anchored in many laws including Basic Law: Human Dignity and Liberty. Nobody has harmed — and nobody intends to harm — these individual rights, but without the Nation-State Law it will be impossible to ensure for [future] generations the future of Israel as a Jewish national state,” said Netanyahu.

As for the benefits of the new law, he said it “entrenches the Law of Return” for Jews while preventing “the exploitation of the family reunification clause under which very, very many Palestinians have been absorbed into the country since the Oslo agreement.” He added the law may in future help block “labor migrants,” without specifying how.

Summing up his goal in the new law, Netanyahu said, “We legislated the Nation-State Law in order to ensure the existence of the State of Israel as a state that is not only democratic but as the national state of the Jewish people and of it alone.”

His emphasis of Israel belonging to the Jewish people “alone” was not accompanied by any elucidations of how the law makes that possession of the state exclusive, or how it could prevent non-Jews from using Israel’s democratic structure to make Israel no longer Jewish.

Netanyahu then shifted into damage control mode, praising the “deep bond” with the Druze community and announcing a special ministerial committee “to advance this bond.” That committee — the Ministerial Committee on Druze, Circassian and Minority Community Members who serve in the Security Forces Affairs — met on August 6 for the first time to discuss various perks that could be offered to members of these groups, such as “housing, employment, social welfare and benefits for discharged soldiers.” Not all went without a hitch though, as 6 of 11 ministers did not attend the inaugural meeting.

All in all, the frantic damage control and official statements give the impression that the government is working on a sort of political bribe to divert attention from the key question that was raised in the law. These responses to the fallout caused by the law have utterly failed to address the basic question that has been raised, which is: How can non-Jewish citizens of Israel be able to alter the state’s national future with their vote, if “national self-determination” is a “unique right” of the Jews?

Given all this, it is unlikely Israel will take this law as an opportunity for honest introspection over what it means to be a Jewish state. But this honest dialogue is precisely what the Jewish people in Israel are in dire need of — and which can be provided by forums such as The Jerusalem Herald, which was established to open the discussion on Israel’s future as the Jewish state.

One can hope that while debating the Jewish nation-state law, Israel will take a long and sincere look at the deeper questions surrounding it. It may find that a comprehensive answer to these questions lies in a change of status for Israel’s non-Jewish residents, preserving their individual rights while limiting their national rights — an approach that has international precedent as discussed in a previous article.

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...הָרִימִי בַכֹּחַ קוֹלֵךְ מְבַשֶּׂרֶת יְרוּשָׁלִָם הָרִימִי אַל תִּירָאִי אִמְרִי לְעָרֵי יְהוּדָה הִנֵּה אֱלֹקֵיכֶם! (ישעיה  מ:ט)

...Raise your voice with strength, herald of Jerusalem; raise it, do not be afraid; say to the cities of Judah, "Here is your G-d!"

(Isaiah 40:9)

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