As I see it: The basic ambivalence over the Jewish state

A number of distinguished legal figures have leapt to denounce the measure.

November 27, 2014 21:34
Western Wall

A woman walks in front of the Western Wall in Jerusalem. (photo credit: REUTERS)

The tremendous row over the proposal of a “Jewish nation-state” basic law is ridiculously overblown and politically driven. It also goes to the heart of the most fundamental and toxic division in Israeli society – over the nation’s very identity.

The text of this bill, which the political parties are currently hammering out from various alternative drafts for presentation to the Knesset, would enshrine in a constitutional basic law Israel’s identity as a Jewish state.

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Earlier this week, the issue detonated a political explosion when Tzipi Livni and Yair Lapid threatened to bring down the coalition over what they said was the measure’s attack on Israel’s democratic character. The enemies of Israel from within and without, delighted to have yet another stick with which to beat the beleaguered country still further, duly wielded it with glee.

A number of distinguished legal figures, however, also leapt to denounce the measure.

Attorney-General Yehuda Weinstein said certain aspects would lead to a “deterioration of the democratic characteristic of the state.”

Prof. Mordechai Kremnitzer and Attorney Amir Fuchs of the Israel Democracy Institute said: “It shifts the democratic element from the center to the far margins. In other words, it would amount to a veritable revolution that would alter fundamentally the constitutional regime that has existed in the State of Israel since its founding.”

Really? How can that possibly be the case? The proposed bill would not supersede or contradict in any way the basic law that already exists guaranteeing equal civil and political rights.

Kremnitzer and Fuchs say the measure does not in itself recognize democratic rights and therefore downgrades them. But it is understood that the bill currently being prepared will include a number of principles endorsed by the prime minister, including the following statement: “The State of Israel is a democratic state, established on the foundations of liberty, justice and peace envisioned by the prophets of Israel, and which fulfills the personal rights of all its citizens, under law.”

It would affirm the right to “the preservation of one’s culture, heritage, language and identity” for “every resident of Israel, irrespective of their religion, race or ethnicity.”

The one and only thing it would reserve for the Jewish people alone is “the right to express national self-determination within the State of Israel.” That, after all, is the meaning of a Jewish state.

Moreover, the suggestion that such an affirmation in law is revolutionary or divisive plays fast and loose with history. A previous version of this law, crafted by the former intelligence chief and centrist politician Avi Dichter, was backed by 40 Knesset members including 20 from Tzipi Livni’s own previous Kadima party.

And a commitment to bring forward such a law was part of the coalition agreement.

This row is based on a number of fundamental confusions. The first is between Israel’s national identity and the form of government it chooses to employ. Israel is a Jewish state because the Jews are a nation and Israel is the nation-state of the Jews alone. That does not mean that Israelis who are not Jews cannot enjoy equal civil and religious rights.

Israel is also their country, for sure; but it is not – indeed, cannot be by definition – their nation-state.

Indeed, this distinction goes back to the foundational document of Israel’s creation, the 1917 Balfour Declaration, which in stating that nothing should endanger the “civil and religious rights of existing non-Jewish communities” deliberately omitted political rights because this was specifically to be the homeland by right of the Jews alone.

Ah, say Kremnitzer and Fuchs, but the proposed bill does not confer any collective rights on non-Jews and so therefore denies the Arabs their democratic rights. But this is an extraordinary claim. Giving Arabs collective rights would mean that they could break Israel apart – for example, if the Arabs of the Galilee or the Negev were to choose to secede – or else turn Israel into a binational state. In other words, destroy it as the Jewish homeland.

And there are many who want to do precisely that. Such existential annihilation is precisely what the global delegitimization campaign being waged so devastatingly against Israel aims to achieve.

But like many of the proposed bill’s most bitter critics, Kremnitzer and Fuchs state: “It goes without saying that we agree that Israel is the nation-state of the Jewish people.”

Well if that is the case, why are they dead set against enshrining it in a basic law? They say it simply doesn’t need to be repeated. But why should repeating it present such a problem? Mahmoud Abbas is required to acknowledge that Israel is a Jewish state. He refuses to do so, thus underlining his aim to destroy it.

So why are the Israeli opponents of this measure adopting precisely the same position? The answer is that despite their protestations, such opponents are profoundly ambivalent about the Jewish nature of the State of Israel – and none are more ambivalent than the lawyers. With universalism now the religion of the human-rights obsessed judiciary, the very idea of the Jewishness of the state is deeply problematic to them. It is all part of the “post-Zionist” shibboleth, which falsely suggests that the very idea of a Jewish state precludes democratic rights.

Accordingly, Israel’s activist former Chief Justice Aharon Barak declared that the country’s Jewish character was in tension with democracy. The courts duly embarked on a series of decisions which set out to neuter Israel’s legal status as a Jewish state. That is why this new basic law is needed, to protect Israel’s national identity against the campaign to destroy it being waged from within as well as from without.

The objection that the idea of a Jewish state is itself inimical to democracy is a racist one.

If Israel were to be the nation-state of everybody, it would be the nation-state of nobody, and certainly not of the Jews. It would mean that Jewish self-determination alone was to be prohibited – for many of these objectors are simultaneously supporting Palestinian self-determination in a state of Palestine to be denuded of Jews, while effectively supporting the replacement of the historic Jewish homeland by a binational state.

What this row reveals is that many Israelis want Israel to be merely like any other country. It is not. Judaism, in its trifecta composed of the people, the religion and the land, is unique. The State of Israel reflects that uniqueness. The proposed bill would protect it. That’s what its opponents cannot stand.

Melanie Phillips is a columnist for The Times (UK).

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