Legal Expert Gavison Objects to Israel’s Proposed Nation-state Law

Legislating identity will deepen disputes in Israeli society, warns Israel Prize winner in her recommendations for a 'softer' Basic Law.

Tomer Neuberg

Legislating the Jewish character of the state is liable to exacerbate conflicts within Israeli society and should not be done in the framework of coalition negotiations, says Prof. Ruth Gavison, who was appointed by Justice Minister Tzipi Livni to formulate a more nuanced version of the Jewish nation-state bill.

Gavison, an Israel Prize laureate in legal research, submitted her recommendations for defining the Jewish and democratic character of Israel, in response to various Knesset bills proposing a Basic Law anchoring Israel’s status as the nation-state of the Jewish people. Basic Laws have the force of constitutional law.

In her report, Gavison strongly objects to the anchoring of identity through legislation. She states that if a decision is made to pass such a Basic Law, this should be done as part of a broad process and not in the framework of coalition negotiations. “A strengthening of the vision of this state, including the emphasis on the vitality and centrality of its uniquely Jewish character, will be much better served through other diverse and targeted activities.”

Gavison writes that a “legalistic anchoring of this vision is not necessarily the most effective way of facing challenges. As we have seen, the legislative process itself, particularly when legislators wish for a speedy process based on power differentials, instead of basing it on a significant and open societal process of dialogue between different sectors and with communities in the Diaspora, becomes a polarizing and contrarian process. It will cause conflict rather than strengthening unity.”

According to Gavison, legislation assists judicial decision-making rather than enhancing social, cultural and political dialogue. “In a society in which there are deep disputes on so many issues, and in which there are groups pulling their interpretation of this vision in many directions, there is great importance in maintaining a flexible space, which will allow debate and a solution to problems, without permitting any group to tear up its ties with other groups.” As an example she notes that there is no need to decide if Judaism refers to a nation or a religion in the legislation of marriage and divorce laws, or in the regulation of the Sabbath.

“There is also no need for a new anchoring in law of the relations between Hebrew and Arabic in Israel in order to maintain a reality of respect for both languages, with Hebrew as the dominant one. In many cases it’s best to make do with a reasonable existing arrangement rather than legislating a new Basic Law.”

As a rule, Gavison recommends keeping the existing order which is flexible, soft and murky. “The effect of legislating a law dealing with vision, especially a Jewish nation-state bill, will have an opposite effect to the one desired. The process of deliberations about the law and the law itself, whatever its final formulation, will be perceived as an attempt to change the existing order and as a threat to those who feel that it is directed against them. The process and the law will produce a structured confrontation which will revive the feeling that different components of the vision are vying with each other, rather than complementing one another.”

The current version of the Basic Law: Israel as the Nation-State of the Jewish People is sponsored by coalition whip MK Zeev Elkin (Likud), and is considered the most extreme of a series of similar bills proposed over the last year. In addition to giving Israel’s nation-state status for the Jewish people the force of constitutional law, it also restores a previously scrapped clause, under which the Arabic language would no longer be an official language of the state.

Prime Minister Benjamin Netanyahu said this week that he supports the proposal and plans to bring it to a cabinet vote on Sunday.