An Israel That Is More Democratic, Less Jewish

The last thing Israel needs is a new Basic Law that constitutionally defines its Jewish identity, and it doing so discriminates against its other communities and further erodes its democratic character.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

The first legal document to explicitly term Israel "a Jewish and democratic state" was the Basic Law on Human Dignity and Freedom, enacted in 1992. This law played a key role in setting the tone for the debate on the relationship between these two components of the state's identity. While some believe that these two components can complement each other, others point out that defining a country based on a concept of nationality, one that fundamentally differs from the concept of citizenship, doesn't mesh well with the modern view of democracy.

High Court of Justice President Meir Shamgar may have written in 1988 that "the existence of Israel as the state of the Jewish People does not negate its democratic character as much as the Frenchness of France does not negate its democratic character." However, this statement contains an internal contradiction. The parallel to the "Frenchness" of France would be Israel's existence as an Israeli state, not as "the state of the Jewish people." This contradiction attests to the strong tension that exists today.

Israel differs from democratic states like France, where the concept of citizenship and nationhood are identical. In these countries, a person is a citizen with equal rights regardless of his ethnic background, and his nationality is based on his equal citizenship. However, Israel is also different from countries like Belgium and Canada, which constitutionally recognize the existence of a number of national groups but are built on the equality and cooperation between them. Of course in many countries there are different types of discrimination and prejudice, but in Israel discrimination is constitutionally justified based on the dichotomy found in its Basic Laws.

If, for example, we were to compare Israel to Canada, the parallel would be a constitutional clause declaring Canada the state of Anglo-Canadians. This definition would never be accepted by Canada's French Canadian citizens and Quebec would obviously make good on its threat to secede from Canada. The proposal to pass a new Basic Law Israel that would fix Israel's status as the nation-state of the Jewish people and needs to be understood in this context.

In his Haaretz op-ed "A Basic Law to save Israel's Jewish identity " (January 21), Joel Golovensky makes claims based on a position paper published by the Institute for Zionist Strategies. He says that there is an "imbalance" in Israel's present constitutional infrastructure, and that it has eroded the High Court's willingness to defend the Jewish character of the state. Golovensky advocates adopting a Basic Law defining Israel as a Jewish state, a move, he says, that would correct the court's current emphasis of individual rights at the expense of the majority's right to self-determination. He also mentions the importance of such a Basic Law in relation to the topics of Jewish settlement and the preservation of Hebrew as the national language.

Among the legal rulings on these topics that are mentioned in the position paper written by Prof. Aviad Bakshi, there is a legal ruling that determined that it was impossible to forbid Arabs from purchasing land in communities built on state-owned land as well as a ruling that requires Arabic language signage in mixed Arab-Jewish cities. If these are the court rulings that bother Golovensky and Bakshi, it's possible to clearly discern the goal of their Basic Law proposal: They want to prevent court rulings like these in a manner that would constitutionally enshrine not the Jewish right to self-determination, but rather discrimination against Arabs.

I don't know of a democratic country that constitutionally enshrines the land rights of just the majority group. Similarly, anyone who has visited countries comprised of several national groups, like Canada or Belgium, will have seen a multitude of bilingual signs; many more than exist in Israel, even after the High Court's ruling on the matter. It isn't constitutionally permissible to deprive minorities of access to state-owned lands under the French model, the Belgian model, or the Canadian model. In all countries it is also illegal for the state to establish communities solely for the majority group.

It was basic democratic principles and in line with Israel's Declaration of Independence that led the High Court to issue these rulings. It is based on this very Declaration of Independence that the state provides "complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex." Giving content to the definition of the state as "Jewish" will nullify these kinds of court rulings and this type of civic equality, negating the already flimsy "democratic" aspect of the state.

In light of the already problematic constitutional definition of the state that exists today, along with the recent anti-democratic initiatives and the many democratic failures (some of which have already become law, and some – like the Amendment to the Citizenship Law or the "Nakba Law," that would allow the finance minister to fine government-funded organizations that commemorate the Palestinian Nakba on Independence Day – which weren't struck down by the High Court , the last thing Israel needs is a special Basic Law defining it as the nation-state of the Jewish people. This type of law will push it further away from the fundamental democratic principle of civic equality and diminish its stance as a state that belongs to all its citizens. What Israel needs is exactly the opposite. It needs a reinforcement of democracy, not a reinforcement of an ethnocentric-based view of nationality that excludes one-fifth of the its citizens.

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