Israeli flags 311.
(photo credit: Marc Israel Sellem)
Nearly 25 months after the Declaration of Independence, the Knesset codified one of the most fundamental principles of Zionism – the right of Jews to make aliya (to immigrate to the State of Israel). Although the 1948 Declaration of Independence opened the gates of the country “for Jewish immigration and for the ingathering of the exiles,” the declaration held no force of law. Thus, on July 5, 1950, the Knesset passed the Law of Return granting every Jew “the right to come to this country as an oleh” (a Jewish immigrant to Israel).
The modern State of Israel was established to fulfill the national self-determination of the Jewish people in its historic homeland. Members of the Zionist movement, which envisioned the establishment of the state, began emigrating from the Diaspora decades before the establishment of the state. The governments of the Ottoman and British Empires, however, in the name of ethnic and civic stability, severely limited Jewish immigration to the land of Israel.
While small numbers of Jews were allowed to settle in the land, many more were turned away, especially in the period leading up to the establishment of the state. At that time, during and after the Second World War, the numbers of Jewish refugees wishing to immigrate were at their highest ever.
With the establishment of the State of Israel in 1948 as the national home of the Jewish people and the Declaration of Independence opening the gates of Jewish immigration, hundreds of thousands of Jews made their way to Israel. But the young country had no immigration law, which meant that the ability of Jews to immigrate had not yet been legally enshrined as a right. The 1950 Law of Return fulfilled that need, officially recognizing that “Every Jew has the right to come to this country as an oleh,” providing a small number of exceptions.
After July 5, 1950, all Jews were eligible for immigration and received citizenship upon arrival in the country.
Aside from guaranteeing Jews in the Diaspora the right to immigrate, however, the state itself stood to benefit from the Law of Return. As the democratic nation-state of the Jewish people, Israel needed to ensure a Jewish demographic majority in order to maintain its Jewish character alongside its democratic government. By guaranteeing the right of Jewish immigration, the state was actually encouraging Jews to immigrate, thereby increasing the Jewish majority.
The original law was written ambiguously. While explicitly granting a specific right to Jews, it did not provide a definition for Jewishness. Only 20 years later would it be amended to specify who qualified as a Jew, an amendment that for the purposes of the law expanded the definition of a Jew to a large number of people who were not Jewish under halacha. The amendment made anybody with one Jewish grandparent or anyone married to a Jew eligible for immigration.
The 1970 amendment to the Law of Return has been attributed to several different interests and concerns. The expanded definition it adopted was the definition of Jewry first codified in the Nuremberg Laws by Nazi Germany. One explanation for this expansion is that as the homeland of the – historically persecuted – Jewish people, the State of Israel should allow immigration by anyone who could be ostensibly persecuted for being Jewish. Therefore, it is said, the Nazi definition of Jewishness was adopted.
Another explanation is that following the capture of the West Bank and Gaza Strip in the 1967 Six Day War, it became more apparent than ever that Palestinians posed a significant demographic threat to the Jewish majority in Israel. The growing awareness of the demographic threat, it is said, drove the government to expand eligibility for immigration under the Law of Return in order to encourage mass immigration from eastern bloc countries where assimilation was widespread.
The 1970 amendment, however, created a new set of problems for those immigrants who arrived under its expanded eligibility. Being Jewish enough to immigrate according to the standards of the government did not make one Jewish according to the officially empowered rabbinate, which controls several key components of legal affairs in Israel, primarily family law. The most publicized problem these immigrants face is their inability to marry and divorce in the State of Israel.
The Law of Return is also controversial for another reason entirely, not for its expanded inclusion but rather for its exclusion. Some claim that the guaranteed right for Jews to immigrate is discriminatory to non-Jews and therefore runs counter to the democratic value of equality under the law. However, it is argued that the Law of Return – and the principle behind it – is the same principle of self-determination that led to the creation of the state as the national homeland of the Jewish people. Zionism and its manifestation – the State of Israel – is predicated on the right of Jews to immigrate.
Legally speaking, one of the most often-cited contemporary explanations of why the Law of Return does not negate the equality guaranteed in democracy is a principle called, “the special key,” articulated by former Supreme Court president Aharon Barak.
Barak argues that while Jews are given the privilege of immigration, their privileged status ends there. In a 2008 Haaretz
interview, Barak explains, “Israel is a home to which a Jew, as a Jew, is given a special key with which to enter – a golden key, which is not given to others. But once you enter the home, all those who reside in it are equal, non-Jews, too.”