Analysis from Israel

Israel’s new nation-state law has elicited a storm of criticism since it passed on July 19. Some of this criticism is justified; a law that manages to unite virtually the entire Druze community against it, despite this community’s longstanding support for Israel as a Jewish state in principle, clearly wasn’t drafted with sufficient care, as even the heads of two parties that backed the law (Jewish Home’s Naftali Bennett and Kulanu’s Moshe Kahlon) now admit. Nevertheless, much of the criticism stems from a fundamental misunderstanding of Israel’s constitutional system.

Israel doesn’t have a constitution. What it has is a series of Basic Laws to which the Supreme Court unilaterally accorded constitutional status. Many people, myself included, disagree with that decision, inter alia because constitutional legislation should reflect a broad consensus, whereas many Basic Laws were approved by only narrow majorities or even minorities of the Knesset. Nevertheless, both sides in this dispute agree on one thing: Each Basic Law is merely one article in Israel’s constitution or constitution-to-be. They cannot be read in isolation, but only as part of a greater whole.

Consequently, it’s ridiculous to claim that the nation-state law undermines democracy, equality or minority rights merely because those terms don’t appear in it, given that several other Basic Laws already address these issues. The new law doesn’t supersede the earlier ones; it’s meant to be read in concert with them.

Several Basic Laws, including those on the Knesset, the government and the judiciary, detail the mechanisms of Israeli democracy and enshrine fundamental democratic principles like free elections and judicial independence. There are also two Basic Laws on human rights, both of which explicitly define Israel as a “Jewish and democratic state.”

Of these human rights laws, the more important is the 1992 Basic Law: Human Dignity and Liberty. It includes general protections like “There shall be no violation of the life, body or dignity of any person as such” and “All persons are entitled to protection of their life, body and dignity,” as well as specific protections for liberty, property and privacy. Though the law doesn’t mention “equality” or “minority rights,” the courts have consistently interpreted it as barring discrimination on the eminently reasonable grounds that discrimination fundamentally violates a person’s dignity (the one exception, which all legal systems make, is if discrimination has pertinent cause, like barring pedophiles from teaching).

Granted, there are things this law can’t do, such as breaking the rabbinate’s monopoly on marriage and divorce, because it explicitly grandfathers all pre-existing legislation. But it applies to all legislation passed after 1992.

Thus to argue that the nation-state law is undemocratic because it doesn’t mention equality or minority rights is like arguing that the U.S. Constitution is undemocratic because Articles I and II confer broad powers on the legislature and executive without mentioning the protections enshrined in the Bill of Rights. Everyone understands that the Constitution’s provisions on governmental power aren’t supposed to be read in isolation, but in concert with the first 10 amendments, so there’s no need to reiterate those rights in every other article. Similarly, the nation-state law isn’t meant to be read in isolation, but only in concert with other Basic Laws enshrining Israel’s democratic system and basic human rights. Thus there’s no reason for it to reiterate protections already found in those other laws.

Nor are any of the law’s specific provisions undemocratic. For instance, the provision stating that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people” doesn’t deprive Arabs of individual rights within Israel, nor does it bar the possibility of Palestinian self-determination in the West Bank and Gaza, which aren’t part of the State of Israel. The only thing it prohibits is an Arab state within Israel’s borders, which is problematic only if you favor replacing Israel with another Arab state.

As for the provision making Hebrew the state’s only official language, many other democracies also have a single official language despite having large minorities with different mother tongues. For instance, 17 percent of America’s population is Hispanic, only slightly less than the 21 percent of Israel’s population that’s Arab, yet Spanish isn’t an official language in America, and few people would argue that this makes America undemocratic.

Indeed, Israel’s new law goes much farther than many other democracies in guaranteeing minority language rights, thanks to one provision according Arabic “special status” and another stating that nothing in the law “undermines the status enjoyed by the Arabic language in practice before this Basic Law came into effect.” The latter provision actually preserves Arabic’s status as an official language de facto. It may have been stupid not to preserve it de jure as well, but “stupid” isn’t the same as “undemocratic.”

All of the above explains why even the heads of the Israel Democracy Institute—a left-leaning organization usually harshly critical of the current government—said at a media briefing this week that the law “doesn’t change anything practically,” “won’t change how the country is run,” and is merely “symbolic and educational.”

The law was meant to solve a specific constitutional problem: The courts have frequently interpreted the Jewish half of “Jewish and democratic” at a “level of abstraction so high that it becomes identical to the state’s democratic nature,” as former Supreme Court President Aharon Barak famously said. Yet no definition of “Jewish” can be complete without recognizing that Judaism has particularist, as well as universal, aspects because it’s the religion of a particular people with a particular history, culture and traditions. By emphasizing some of those particularist aspects, the law is supposed to restore the intended balance between the Jewish and democratic components of Israel’s identity. But it doesn’t eliminate those democratic components, which are enshrined in numerous other Basic Laws, nor was it intended to do so.

I’m skeptical that the law will achieve its intended purpose, but I see no good reason why it shouldn’t exist in principle. Israel isn’t just a generic Western democracy; it’s also the world’s only Jewish state. And its constitution-in-the-making should reflect both halves of its complex identity.

This article was originally syndicated by JNS.org (www.jns.org) on August 1, 2018 © 2018 JNS.org

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Why equality doesn’t belong in the nation-state law

Ever since Israel’s nation-state law was enacted in July, one constant refrain has sounded: The law should have included a provision guaranteeing equality to all Israelis. It’s not only the law’s opponents who say this; so do many of its supporters, liberals and conservatives alike. But they are wrong.

Adding a provision about equality to the nation-state law sounds innocuous because civic and political equality is already implicitly guaranteed through the 1992 Basic Law: Human Dignity and Liberty. Basic Laws are Israel’s closest approximation to constitutional legislation, and the 1992 law, which protects the “dignity of any person as such,” has been consistently interpreted by the courts as enshrining equality on the grounds that discrimination violates a person’s dignity. So what harm could it do to offer an explicit guarantee in the Basic Law: Israel as the Nation-State of the Jewish People?

The answer is that doing so would elevate Israel’s democratic character above its Jewish one. And that would negate the entire purpose of the nation-state law, which was to restore Israel’s Jewish character to parity with its democratic one—not superiority, but merely parity.

To understand why this is so, it’s first necessary to understand why adding an equality provision would violate basic constitutional logic. This argument was cogently made from the liberal side of the political spectrum by Haim Ramon, a former senior Labor Party Knesset member and former justice minister. Writing in Haaretz’s Hebrew edition last month, Ramon argued that if anyone thinks equality isn’t sufficiently protected by the Basic Law: Human Dignity and Liberty, they should work to amend that law rather than the nation-state law, as the former is where any provision on equality belongs.

This isn’t mere semantic quibbling. A constitution, being a country’s supreme instrument of governance, isn’t supposed to be a jumble of random provisions thrown together with no more thought than a monkey sitting at a keyboard might provide; it’s supposed to be a carefully crafted document. That’s why constitutions typically group all provisions relating to a given topic into a single article or chapter. Each article has equal status; none is more or less important than the others. And together, they create a comprehensive document that addresses all the basic questions of governance.

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