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Was it Right to Try to Pass a Nation-State Law?

The media recently exposed the Israeli public to a barrage of spin regarding the proposed Basic Law: Israel is the Nation State of the Jewish People. Like all spin, this round spawned shallow and superficial debates.The article lays out the primary arguments against the Basic Law and evaluates them on their merits or lack thereof.
Argument 1: The Nation State Itself is a Bad Idea
This claim is backed by historical and moral arguments. On the historical level, the argument is that the nation state can easily descend into fascism, repressing its citizens and threatening its neighbors. On the moral level, the argument is that the nation state by definition discriminates between citizens and turns those citizens who are not members of the nation into second-class citizens, which is a clear violation of the principle of equality. This argument is easily refuted. First, even the most virulent opponents of Israel as a Jewish nation state strongly support the right of the Palestinians to a nation state of their own, and thus do not actually object to the principle as such. Second, at least on the legal and factual level, the debate regarding the nation state has long since been decided. The right to self-determination in a nation state is recognized and anchored in international human rights documents. Most western states are nation states, and their number has only increased with the collapse of many multi-national states since the end of the Cold War. Third, a state cannot maintain neutrality on matters of culture and nation, and therefore the real choice is between a nation state that acknowledges itself as such and a nation state that denies it is one. More than that, and somewhat paradoxically, the condition of minorities in a nation state that denies the reality of its nature is actually likely to be worse. While a nation state openly defining itself as such can also openly commit to respecting the rights of minorities, a nation state that denies its true nature effectively pressures its minorities to assimilate into the host majority nation. A classic example is France, which refuses to officially recognize any language other than French, as well as its ban on donning culturally and religiously unique symbols of minority groups. However, even if a state could shed the national dimension, it certainly is not clear that this is necessary. After being identified for many years with a conservative worldview, the national camp has recently been joined by not a few liberal writers, such as the political theorist David Miller, who propose liberal justifications for the nation state. These authors do not deny the danger of extreme nationalism to world peace, but in their opinion, coping with this danger does not require forfeiting nationalism altogether. And if we’re already dealing with the dangers of ideologies and political structures, many thinkers and statesmen such as Angela Merkel and David Cameron have recently stressed the danger in adopting the multi-cultural political framework, the antithesis of the nation-state. It would seem that even among liberals (of whom the present author is one) John Lennon’s dream of the abolition of states and nations as expressed in his song “Imagine” has ceased to be a desired goal.
Argument 2: The Jewish People Have No Right to a Nation State
This argument comes in two versions. The first is that Judaism is not a national identity, and therefore the Jews have no right to a nation state. According to the second, even if the Jews are a nation, they have no claim to the Land of Israel and have no right to self-determination within its borders. The former was argued some twenty years ago by Azmi Bishara, the founder of the Balad party who has since fled the country and is suspected of aiding Hezbollah during the Second Lebanon War. The argument caused an uproar when it was made, but a look at its sources may dull the anger a bit. Bishara was using terms and arguments from the academic study of nationalism, and he adopted the then-prevalent position that nationalism is a purely modern phenomenon with no solid basis in humanity’s history beforehand. As far as the modernists—such as Ernest Gellner, Eric Hobsbawm, Benedict Anderson, and others—were concerned, not just the Jews, but all nations were “imagined” or created within the past two centuries. But Bishara and his supporters’ adherence to the modernist view weakens their position. The study of nationalism has headed in another direction, and many authors have convincingly refuted the modernist argument, pointing to the ancient roots of national identity. More than that, all modernists have to jump through hoops to square their thesis with the history of the Jewish people, while non-modernists such as Adrian Hastings and Anthony Smith point to the Jews as the model of pre-modern nationalism, even arguing that the Jewish nation was an inspiration throughout history for other, newer nations to emulate. Another significant weakness in the position of Bishara and his supporters is that alongside their negation of the existence of a Jewish nation or its subsequent right of self-determination, they support the right of the Palestinians to the same. To deny the existence of the Jewish people as such, even though they have millennia of history as a separate people behind them, and to recognize the right of Palestinians, who are a new nation which would likely not exist were it not for the Jewish return to their land, is a clear and irresolvable contradiction. One cannot hold both positions and be logically coherent. The question of the right of the Jews to fulfill self-determination in the Land of Israel is a discussion we cannot explore here. Suffice to say that this right has been internationally recognized on several occasions.
Argument 3: There is no Need to Enshrine Israel’s National Status in a Basic Law
Which brings us to an internal Zionist debate. Those who criticize the basic law initiative claim that Israel’s status as a Jewish nation state is already anchored in various laws, and thus has no need to be upgraded to a constitutional level. A version of this argument claims that Israel’s status as a nation state is already anchored by the Declaration of Independence. Evaluating this argument first requires a discussion of the following two questions: What is the purpose of a supreme, constitutional level of legislation? What contents do democracies choose to include in constitutional legislation? We cannot discuss these questions here. We will suffice with the fact that most democracies do indeed have a constitution, and most of these include structural principles alongside basic values, some of which are formulated in the language of rights. In nation states, the sections discussing basic values tend to include articles that anchor the national character of the state. Thus, for instance, constitutions often enshrine the special status of members of the nation living abroad and the state’s obligations to the same, the special status of the national language, and the commitment of the state to protect and cultivate the national culture. The anchoring of these principles in the constitution does not replace their status in regular legislation. Rather, such anchoring is meant to strengthen it. In light of these facts, one can confidently say that Israel’s attempt to constitutionally enshrine its status as a nation state is far from unique. Furthermore, for a generation, Israel had no basic laws enshrining human rights. Despite this, legislation and judicial rulings effectively protected these rights. Israeli academics have taken pride in this effective protection of human rights and argued that Israel can serve as a model even for countries that already enshrine the protection of human rights in their constitution. This fact did not prevent a group of Knesset members from passing, in March 1992, two basic laws protecting human rights: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. If there is no need to anchor Israel’s nation-state status in a basic law — why was there a need to do so with human rights? As for the Declaration of Independence, it is a vague document written under heavy time pressure and meant primarily for the countries of the world that may have supported the establishment of a Jewish state in the Land of Israel, but did not give their assent to its unilateral establishment at the time of its announcement. One might add that the Declaration of Independence was never meant to serve as a law, and certainly not as a constitution. In light of this, it is no surprise that when the Supreme Court was asked to grant the Declaration constitutional status, it summarily refused to do so, even denying it the status of a regular law. In such circumstances, the idea of adopting the Declaration of Independence in its current vague version as part of the Israeli constitution is nothing short of foolish.
Argument 4: The Timing Isn’t Right
There are those who argue that the relationship between the Jewish majority and the Arab-Palestinian minority are close to boiling point. Therefore, promoting the basic law will increase tensions and is better set aside for a more appropriate time. This argument cannot be so easily dismissed. The reality in the State of Israel is different compared to other countries. The Israeli Palestinians’ state is at war with their brethren, and as far as many are concerned, the State of Israel or part of it was established on the ruins of their houses and their land. On the other hand, Palestinian terrorists are killing Israeli Jewish citizens, causing the latter to cut off contact with the Israeli-Palestinian public. In such unique circumstances, and with such weighty historic and present background, a great deal of sensitivity, wisdom, and effort is required to build bridges and not burn them. The proposals for a Basic Law: Israel is the Nation State of the Jewish People are each formulated in a matter entirely congruent with international human rights documents. These documents emphasize the following principles: 1) National groups have the right to self-determination in their own nation state in which they may preserve and cultivate their national identity. 2) Members of minority groups in a nation state are entitled to full individual equality as well as the possibility of preserving and cultivating their own unique culture. 3) The individual rights of members of minority groups and in particular their right to preserve their unique culture are part of the social fabric in which the minority accepts upon itself the obligation to uphold the cohesion and independence of the state in which it lives. There are those who argue that precisely by unequivocally establishing these guidelines within a basic law, the Israeli Palestinians will accept their part of the deal and the flames will die down. They may be right. But although water puts out fire, sometimes it’s best to let a scalding pot cool before rinsing it off.
Argument 5: The Basic Law will Legitimize the Original Sin of the “Constitutional Revolution”
The “Constitutional Revolution” — which according to the Supreme Court took place in the early 1990s with the legislation of the two aforementioned basic laws—turned Israel from a parliamentary democracy into a constitutional one. Many in Israel, including public figures and academics, believe that both the manner in which the basic laws were passed and the way they were used by the Supreme Court are problematic. Even those who support the revolution agree (at least formally) that it would be preferable if the Knesset would conduct a public and political discussion leading to the adoption of a fully-fledged constitution to replace the present collection of basic laws. Such an appropriate process began, during the term of the 16th Knesset, in the Knesset Constitution, Law and Justice Committee when chaired by MK Michael Eitan. Unfortunately, the process took a negative turn during the term of the 17th Knesset, when the Committee was chaired by Menahem Ben-Sasson, and it has since completely stalled. One of the arguments made recently against the basic law proposal is that it would signal to the Court and its supporters that its opponents accept the present status quo, thus putting an end to the possible adoption of a complete constitution by the Knesset in the near future. Another argument of the same type expresses concern regarding the manner in which the Supreme Court will interpret the proposed Basic Law: Israel is the Nation State of the Jewish People. Indeed, since the Constitutional Revolution, not one additional basic law has been passed. Some religious members of Knesset have joked that they will refuse to pass even the Ten Commandments, since the court will interpret them in a manner contradictory to their language and the intent of their author. These arguments also cannot easily be dismissed. The public criticism against the constitutional revolution, still being heard even after it has been in force for a generation, did indeed serve as a kind of incentive for the adoption of an entire constitution. It is also true that the Supreme Court has been very creative in interpreting the existing basic laws, and there is no guarantee they would not do the same with the proposed nation state basic law. Nevertheless, in my opinion, these two arguments are overstated. The Constitutional Revolution took place over twenty years ago. The moral force of the opposition to the Supreme Court’s conduct fades the more time passes. One can legitimately argue that if the Knesset did not use its power to intervene in the Supreme Court’s behavior, then this demonstrates acceptance of the Court’s actions. I highly doubt that avoiding passing a new basic law will truly maintain the dying embers of the opposition to the Revolution. The fear of distorted interpretation also seems exaggerated to me. As part of the attempt to pre-empt this, and prevent any loophole through which the Supreme Court could twist the words of the basic law, I have heard such fantastic methods of interpretation that even the old Jewish scholastics would have rejected as impossible. The Supreme Court is not staffed by power-drunk tyrants but by loyal public servants committed to the values of democracy. I do not believe they will turn legal night into day and vice versa.
Argument 6 & Conclusion: There is No Consensus
A constitution enjoys supremacy over all other legal norms in force in a political unit, and can therefore be used as a tool for removing certain matters from the political field and drawing the borders in which the political game is played. In light of the limitation a constitution can impose, it is no wonder that many political and constitutional thinkers doubt the legitimacy of having a constitution, arguing that it runs contrary to the democratic principle of majority rule. I cannot do justice here to the debate and the arguments for either side. I will only note that because of this problem, the legitimacy of a constitution is dependent (among other things) on a public consensus in its favor. Of course, complete unanimity is impossible, but massive public support certainly is necessary. In contrast to an ordinary law that enjoys legitimacy even it was passed by a small majority, a constitution enjoys legitimacy only if a large majority of the public supports it. In my opinion, most of the principles included in the various proposals for the Basic Law: Israel is the Nation State of the Jewish People are proper and justified. I also believe that in a nation state like Israel with a constitutional regime, such principles should be included in a constitution alongside structural principles and a commitment to protecting human rights. But when it turns out that many within the Jewish-Zionist majority object to the basic law, for whatever reason, the proposal should probably be shelved, even if it could be passed by a bare majority.

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  • פרופ' גדעון ספיר

    פרופ' גדעון ספיר הוא פרופסור למשפטים באוניברסיטת בר-אילן. ספיר למד בישיבת ההסדר 'הר-עציון' ועמד בהצלחה בבחינות הסמכה של הרבנות הראשית. הוא סיים תואר ראשון במשפטים באוניברסיטת בר-אילן, התמחה בלשכת השופטת דורנר בבית המשפט העליון, השלים לימודי תואר שני ושלישי באוניברסיטת נורת'ווסטרן, וכיהן כפרופסור וכחוקר אורח באוניברסיטאות נורת'ווסטרן, טורונטו, מונש ואמורי. מחקריו מתמקדים בתיאוריה חוקתית וביחסי דת ומדינה. ספיר פרסם וערך מספר ספרים ועשרות מאמרים בארץ ובחו"ל. שני ספריו האחרונים הםThe Israeli Constitution: From Evolution to Revolution (Oxford U. Press, 2018); State and Religion in Israel: Philosophical-Legal Inquiry (Cambridge U. Press, 2019) (with Daniel Statman). עם הצטרפותו לפקולטה למשפטים ייסד בה ספיר את הקליניקה לזכויות אנשים עם מוגבלויות ואת הקליניקה לזכויות זקנים וניצולי שואה והוא משמש כאחראי האקדמי על הראשונה. ספיר כיהן במשך מספר שנים כעורך ראשי של כתב העת מחקרי משפט וכעת הוא מכהן עורך ראשי של כתב העת Journal of Law, Religion and State ספיר נמנה על מייסדי פורום קהלת, והוא משמש בפורום כעמית בכיר וכראש תכנית הדוקטורנטים ע"ש הרב איתם הנקין הי"ד.

Prof. Gideon Sapir
Prof. Gideon Sapir

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