Let’s imagine for a moment that the present Knesset chooses to enact a Basic Law on the Jewish nation-state that is, contrary to what is now feared by many, a balanced and fair piece of legislation, one that does honor to the Jewish state and to Israeli democracy. What might such a law look like?
Some will insist that, in principle, a Jewish state and a genuine democracy are a contradiction in terms. According to this view, a state must not be officially connected with a national, cultural or religious identity that is not common to all its citizens. By this thinking, a liberal democracy that is not “neutral” vis-a-vis the different identities of its citizens cannot guarantee them full civic equality.
However, anyone consulting the actual constitutional texts of contemporary democracies will immediately notice two things: Whereas all of the constitutions are egalitarian, proclaiming the principle of equal rights of all citizens without regard to (among other things) their religion and ethnicity, many of them are not culturally neutral at all.
Civic equality is indeed a fundamental democratic principle, whereas cultural neutrality is a concept that is divorced, in many cases, from reality. Those who suggest that Israel adopt a constitution that does not explicitly affirm civic equality disgrace the Jewish state and undermine its legitimacy; those who demand that Israel have a constitution that is “neutral,” however, are making a groundless demand.
First, in any country that has an official language (whether it is the sole official one or the main one), but where more than one language is spoken, the state is, by definition, not culturally neutral. Even multiple official languages (as India has) will usually still leave many citizens speaking an “unofficial” one. Until such time as the whole world switches to Esperanto, the principle of cultural neutrality cannot be realized in one of its most crucial aspects – and one should bear in mind that language is considered, in most instances, to be central to a modern national identity.
In many cases, however, a state’s “non-neutrality” goes far beyond the question of language. Many will be surprised to hear this, but in quite a few cases, contemporary democratic constitutions are clearly “non-neutral” when it comes to religion – while all of them solemnly guarantee religious freedom for all and civic equality regardless of religious affiliation.
The Irish constitution, for example, starts with “in the Name of the Holy Trinity.” That of Greece is more specific: “In the Name of the Holy and Consubstantial and Indivisible Trinity”; it also states that “The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ.” According to the constitution of Denmark, the Evangelical Lutheran Church “shall be the Established Church of Denmark.” Under a 2012 constitutional amendment in Norway that loosened the connection between church and state, “The Norwegian Church, an Evangelical-Lutheran Church, remains Norway’s Church; Specific provisions on the organization thereof are laid down by law,” and “The basis of our values remains our Christian and humanist inheritance.” In both Denmark and Norway, the monarch must belong to the Lutheran Church.
In fact, as is well-known, Scandinavian countries are strongly secular and strongly egalitarian. The articles in their constitutions dealing with church and religion constitute a nod to national tradition and a statement about the character of the national culture. This statement is by no means “neutral”; neither is the sign of the cross on these nations’ flags (and on that of some other democracies).
In Bulgaria, with its large native Muslim-Turkish minority, the constitution proclaims that “religious institutions shall be separate from the State,” and also that “Eastern Orthodox Christianity is the traditional religion in the Republic of Bulgaria”.
Most democratic constitutions do not define explicitly the national character of the state: The name of the country and of the state, and of the country’s official language (all of which are usually identical to the name of the country’s people), is what usually indicates a state’s national identity. In some democracies, however, the constitutional text expressly describes the state in terms of a national identity that is not shared by all of its citizens. In such cases, democratic nation-states go beyond the usual provisions that guarantee equal rights to all citizens regardless of religion, ethnicity or national identity. They include, in their constitutions, express statements that clarify that the national minorities are an integral part of the civic community, and that it is this community as a whole – rather than the majority people, or nation, alone – that possesses the sovereign power in the state.
A clear example of the latter is Croatia – a country that, for historic reasons, is sensitive to questions of national identity and places great emphasis upon its identity in its constitution. It is also a country that recently joined the European Union, prior to which its constitution and laws were subjected to careful scrutiny by European institutions, in an attempt to ensure that they conform to contemporary European standards on democracy and minority rights.
The preamble to Croatia’s constitution is thoroughly “national.” It enumerates all the historic reasons and justifications for the establishment of the Croatian national state, with “Croatian” clearly referring to the identity of the majority people. It proclaims that Croatia is “the national state of the Croatian people and a state of members of other nations and minorities who are its citizens: Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others, who are guaranteed equality with citizens of Croatian nationality.”
The long list of national minorities mentioned only serves to emphasize the centrality of the Croatian national identity; the state is emphatically Croatian – but not exclusively so. According to Article 1 of the constitution, “power in the Republic of Croatia… belongs to the people as a community of free and equal citizens” – that is, to the whole of the citizen body and not to the majority people exclusively. According to Article 3, “parts of the Croatian nation in other states shall be guaranteed special concern and protection by the Republic of Croatia.”
Serbia’s constitution states that “the Republic of Serbia is a state of Serbian people and all citizens who live in it.” Slovenia, under its constitution, is “a state of all its citizens and is founded on the permanent and inalienable right of the Slovene nation to self-determination”; the Slovene nation, on whose history and identity the preamble to the constitution dwells, is clearly the Slovene-speaking majority people. The constitution also promises to maintain and foster the links between the Republic and the Slovene communities in neighboring countries – and, naturally, guarantees full equality to all citizens. The constitution of Slovakia is promulgated in the name of “we, the Slovak nation… together with members of national minorities and ethnic groups living on the territory of the Slovak Republic.”
Hungary is ruled today by a right-wing nationalist government, one that is highly controversial in Europe. This government has successfully initiated the adoption of a new constitution. Its preamble sings the praises of Hungarian nationalism: “We, the members of the Hungarian nation… are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe 1,000 years ago” – and so on, in a similar vein.
“The nation” is explicitly defined as including the Hungarian communities in neighboring countries. Israel’s right-wing and religious parties can only envy such a document. Yet even the Hungarian nationalists have seen fit to proclaim, in the country’s new constitution, that “the nationalities living with us form part of the Hungarian political community and are constituent parts of the State”; equal rights of all citizens are guaranteed.
The general picture is clear: The more a state tends to emphasizes its national character, in cases where the national identity in question is not shared by all citizens, the more it feels called upon to stress, in the same breath, its democratic and inclusive civic character as well.
A democratic nation-state is indeed a state “of” the majority people in the sense that it embodies their national independence and gives expression to their national and cultural identity (including, occasionally, a link with an ethno-national diaspora). But it does not “belong” to the majority people alone, to the exclusion of the other citizens.
The national character of a state that has substantial national minorities is always liable to be interpreted in an undemocratic way, implying that members of the minorities are less than full-fledged citizens; democratic nation-states are careful to reject this interpretation explicitly in their constitutions.
The definition of Israel as a “Jewish and democratic state” as it appears today in the country’s existing Basic Laws has been interpreted by Israel’s Supreme Court in the spirit of the principles that are widely acknowledged by other contemporary democratic nation-states. If there is now a desire to elaborate on the content of the Jewish side of the equation, the democratic and civic side must equally be elaborated on – in the same Basic Law. It would be appropriate to define the Jewish state as a state which realizes the right of the Jewish people to national independence, and the democratic state as a state in which sovereignty rests with all the citizens, including the Arab national minority. The draft of a Basic Law on Israel as a Jewish nation-state presented by members of the Knesset from right-wing and religious parties conspicuously avoids recognizing the principle of equal rights to all citizens regardless of religion, ethnicity or national identity. No greater disservice to the cause of the Jewish state can be imagined.
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