The nation state of the Jewish People


We need the new nationality law because we have a constitution that leaves it out. This constitution was not enacted by the Knesset: it was decreed by the Supreme Court. As elaborated and expanded over the past 20 years, it subordinates national Jewish interests to universalist ones.

During the country’s first 45 years, the Supreme Court skillfully applied common law to navigate a delicate and broadly accepted balance between the fundamental interests of Israel as both the nation state of the Jewish People and as a vibrant democracy.

But soon after the passage in 1992 of the two basic laws on civil rights (Human Dignity and Liberty and Freedom of Enterprise), the Court ruled that the basic laws constitute an instant and written constitution, and this carefully woven balance started to unravel.

The Court determined that these two civil rights laws are pivotal constitutional provisions with which all laws – past and future – must conform and through which all laws – past and future – will be interpreted. Under this new constitutional regime, there is no comparable basic law establishing the national (“Jewish”) character, and thus the gradual but steady decline of national interests in favor of universalist ones.

Last January, the Institute for Zionist Strategies issued a comprehensive report authored by Dr. Aviad Bakshi which researched in detail the dramatic change in the Court’s decisions since the constitution appeared on the scene.

The study demonstrates that it is the imbalance in our basic laws which leads to the subordination of national interests. The clear and carefully documented conclusion of the IZS study is that the legal character of Israel as the nation state of the Jewish People is being seriously weakened under the current constellation of basic laws.

Academics and jurists who follow these developments understand this, but there are elements within those groups, as elsewhere, who are not displeased. For they prefer a Jewish democratic state where the “Jewish” element consists only of symbols (the fewer, the better) and not much else. Many of those who tell us that defining Israel as the nation state of the Jewish People would perforce subordinate democratic values are being deliberately disingenuous.

For they know that the present reality is the opposite – that “democratic” increasingly subordinates “Jewish,” but they prefer it this way and they do not want a true balance restored.

Some claim that the 1992 laws themselves established a legal parity of interests by characterizing Israel as a “Jewish democratic state,” but unfortunately, this is not true. For the quoted phrase is declarative only with no legal effect, while the protection of democratic interests directly restrict Knesset authority and government power. And this is precisely how the basic laws have been implemented by Court decision.

Another argument advanced is that the opponents of the proposed basic law really do not oppose the Jewish state, but rather, seek only to insure that national interest do not overwhelm democratic ones. But the new law does not subordinate democratic values: it just elevates “Jewish” values alongside the other basic laws (there are 10 existing basic laws promulgating democratic procedures and values).

Indeed, when the Knesset Constitution and Law Committee deliberated passing a full-fledged constitution in 2007-09, some of these opponents, including a prominent institute promoting democracy, opposed inclusion of essentially the same provision even though the draft constitutions under consideration strengthened democracy, and even though it included a comprehensive article protecting civil rights, that would have made the US Bill of Rights blush. I know because I participated in the committee deliberations, and it was the IZS provision which was being considered by the committee (favorably, as it turned out).

The Basic Law: Israel as the Nation State of the Jewish People would not subordinate or diminish democracy or minority rights. In accordance with our jurisprudence and under authority of existing basic laws, all citizens would continue to be entitled to equal treatment under law with full civil rights, but these are political and, in part, social in nature – not collective. There are 21 Arab states, with another one possibly on the way. Israel is the one and only state championing the collective rights of the Jewish People.

It is here alone, in accordance with clear international law, that we have exercised our right to self-determination.

This is precisely as envisioned in the Balfour declaration, by the San Remo Resolution and the League of Nations Mandate (both in 1922), by the Anglo-American Treaty of 1925, by the recommendation of the UN General Assembly in 1947, by the Israeli Declaration of Independence of 1948, and now by the proposed basic law.

According to every international convention and standard, no Arab or Palestinian citizen of Israel is being or will be discriminated against by the fact that the Jewish state is the nation state of the Jewish People, and promotes collective Jewish interests and culture while treating all citizens as equal before the law. Of course, one who does not identify with the Jewish People feels less connected. But this is inevitable in every nation state where some citizens do not belong to the predominant, favored ethnic group. As a citizen in a democratic nation state, the minority member receives equal political and social rights. But as a non-member of the nation he does not bask in the same feeling of fellowship and belonging that accompanies the self-determination of the overwhelming majority.

Those of us who grew up in the US, which is not a nation state, are accustomed to the state being neutral in ethnic and religious matters. But the US is not an instance of a nation which formed a state: it is rather a state that engendered a national civic identity. This is more the exception than the rule. A majority of European countries are nation states, each, in its own way, promoting the collective interests of the predominant national groups while affording equal political rights to all citizens.

Israeli Arabs or Palestinians are free to develop their culture.

They are educated in their own language in a system they themselves fashion. This is not always the case in other nation states. But there is no Law of Return for Arabs, because this is a Jewish state established as a home for those members of the Jewish nation who want to join, and for those who must. As the sovereign nation state of the Jewish People, it is legitimate and proper that Israel promote Jewish culture, Jewish learning, Jewish history and a vibrant Jewish future here and to the extent possible, in the Diaspora. It is legitimate and proper that Israel devote resources to the ingathering of our brethren, that we commemorate Yom Hashoa and Yom Hazikaron, that we celebrate Hanukkah and Yom Ha’atzmaut.

Our status as the nation state of the Jewish People must not remain unprotected by the new constitution under which we now live. We need to correct the current legal imbalance in the basic laws so that the courts can protect rather than erode Israel’s Jewish character as conceived by our founders and as implemented by the courts before the surprise appearance of the new constitution.

Israel was established as a Jewish state, and historical justice requires that we protect and anchor this status in our basic laws. The prime minister’s commitment to pass the Basic Law: Israel as the Nation State of the Jewish People deserves the support of all us.

The author is an attorney in Israel and the US. He is the founding president of the Institute for Zionist Strategies, which seeks to strengthen Israel as the democratic nationstate of the Jewish People.

May 15, 2014 | 18 Comments »

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  1. Life expectancy for Israeli men world’s 4th highest

    Smile, Sabra men. Despite the mandatory military service, threat of war, dangerous roads, endless arguing, and smoggy cities, the life expectancy of Israeli men is the fourth highest in the world, according to the World Health Organization

  2. @ Bear Klein:

    Then what are you so concerned about? I have friend who is an athiest but considers himself very Jewish. Born Jewish – married a Jew (second time) and has a daughter living in Israel. So what? He has good cause to feel athiest – let him have that ‘label’.

  3. Actually my self identity is very strong I am a Zionist Jew. That is the only label I identify with.

    I am lucky, identity issues are not something I grapple with.

  4. @ Bear Klein:

    2% of respondents said they feel neither “Jewish” nor “Israeli” and 3.5% answered that they were unsure of how they identified

    It sounds like you identify with this group. The ‘no namers’ or ‘melting pot’. Good luck with that! 🙂

  5. Just like the poll, I posted above self identity for people is not a matter of being Jewish or being Israeli. Self identity does not fall into simplistic either or boxes for people necessarily.

  6. @ Bear Klein:

    This poll hurts my brain. For me it is been like a game of chess. I have now found myself moving toward Modern Orthodoxy. The best description of what is Modern Orthodoxy can be found here:

    Traditional Modernity: Thoughts for Parashat Behukotai

    In his book, The Perspective of Civilization, Fernand Braudel utilizes a concept that he calls “world-time.” Braudel notes that at any given point in history, all societies are not at the same level of advancement. The leading countries exist in world-time; that is, their level of advancement is correlated to the actual date in history.

    However, there also are countries and civilizations which are far behind world-time, whose way of life may be centuries or even millennia behind the advanced societies. While the advanced technological countries exist in world-time, underdeveloped countries lag generations behind; some societies are still living as their ancestors did centuries ago. In short, everyone in the world may be living at the same chronological date, but different societies may be far from each other in terms of world-time.

    Braudel’s analysis also can be extended to the way people think. Even though people may be alive at the same time, their patterns of thinking may be separated by generations or even centuries.

    The characteristic of Modern Orthodoxy is that it is modern, that it is correlated to the contemporary world-time. Being part of contemporary world-time, it draws on the teachings of modern scholarship, it is open to modern philosophy and literature, and it relates Jewish law to contemporary world realities. On the other hand, “non-modern” Orthodoxy does not operate in the present world-time. Its way of thinking and dealing with contemporary reality are pre-modern, generations behind contemporary world-time. The differences between so-called right-wing Orthodoxy and Modern Orthodoxy are not differences in sincerity or in authentic commitment. Rather, the differences stem from different world views, from living in different world-times.

    A Modern Orthodox Jew does not wish to think like a medieval rabbi, even though he wishes to fully understand what the medieval rabbi wrote and believed. The Modern Orthodox Jew wishes to draw on the wisdom of the past, not to be part of the past.

    The philosophy of Modern Orthodoxy is not at all new. Rather, it is a basic feature of Jewish thought throughout the centuries. In matters of halakha, for example, it is axiomatic that contemporary authorities are obligated to evaluate halakhic questions from their own immediate perspective, rather than to rely exclusively on the opinions of rabbis of previous generations. The well-known phrase that “Yiftah in his generation is like Shemuel in his generation” (Rosh haShanah 25b) expresses the need to rely on contemporary authorities, even if they are not of the stature of the authorities of previous generations. We are obligated to be “Modern Orthodox,” to recognize present reality and to participate in contemporary world-time.

    One of the weaknesses of contemporary Orthodoxy is that it is not “modern” in the sense just discussed. There is a prevailing attitude that teaches us to revere the opinions of the sages of previous generations, and to defer to those contemporary sages who occupy a world-time contemporary with those sages. Who are the sages of the present world-time, who absorb the contemporary reality, the contemporary ways of thinking and analyzing?

    To be Modern Orthodox Jews means to accept our limitations, but it also means that we must accept our responsibility to judge according to what our own eyes see, according to our own understanding. It means to have the self-respect to accept that responsibility. Modern Orthodoxy and pre-Modern Orthodoxy do not engage in meaningful dialogue because they operate in separate world-times.

    The sages of each generation are influenced by the social and political realities of their time. If many of our sages in the past believed in demons and witches, if they thought that the sun revolved around the earth, or if they assigned inferior status to women and slaves—we can understand that they were part of a world that accepted these notions. We do not show disrespect for them by understanding the context in which they lived and thought. On the contrary, we are able to understand their words better, and thus we may determine how they may or may not be applied to our own contemporary situation It is not disrespectful to our sages if we disagree with their understanding of physics, psychology, sociology, or politics. On the contrary, it would be foolish not to draw on the advances in these fields that have been made throughout the generations, including those of our own time.

    There is no sense in forcing ourselves into an earlier world-time in order to mold our ways of thinking into harmony with modes of thought of sages who lived several hundred or even several thousand years ago.

    This week’s Torah portion begins: “If you walk in My statutes and keep My commandments and do them…” The Torah uses three verbs to urge us to follow the mitzvoth: walk, keep, do. The emphasis is on action. It has been pointed out that the word for Jewish law is halakha, which means the path on which we should walk. Walking entails movement, not stagnating. Rabbi Haim David Halevy, among others, has noted that Judaism could not have survived all these many centuries unless the halakha was a living, moving organism that kept in tune with the times. As new developments and challenges arose, the halakha faced them directly.

    To live in modern world-time is a prerequisite to being faithful to Jewish tradition.

  7. Jewish and Israeli self identity per a recent poll:

    Over 20% of Israelis feel more “Jewish” than “Israeli,” a poll revealed Sunday, and the percentage rises among the younger and religious populations.

    BINA, an organization for Jewish identity in Israel, released the poll ahead of Israeli Independence Day (Yom Ha’atzmaut). The organization polled 500 men and women from across the religious spectrum in Israel as a representative sample of public opinion, and aims to check the level of religious and national identity in Israel – both now, and for the future.

    More religious Israeli identify primarily as “Jewish,” according to the poll. 49.5% of the Orthodox community feels more “Jewish” than “Israeli,” compared with 9.7% among the secular public.

    Overall, 20.1% of Jewish Israelis feel more “Jewish” than “Israeli,” compared to 13.6% who identify primarily as “Israeli” instead of “Jewish.” The overwhelming majority of Israelis identify as both equally, with 60.8% of respondents saying they feel just as “Jewish” as they do “Israeli.”

    2% of respondents said they feel neither “Jewish” nor “Israeli” and 3.5% answered that they were unsure of how they identified.

    Demographic Differences

    Men are more polarized over their identities than women, the poll reveals. 70.7% of women surveyed feel equally “Jewish” and “Israeli,” compared to just 50% of men.

    Men, meanwhile, are more prone to identify as one or the other. 25.2% of men identify as “Jewish” rather than “Israeli,” compared to just 15.4% of women. Conversely, 19.7% of men identify as more “Israeli” than “Jewish,” compared to 8% of women.

    Younger Israelis are also more likely to identify with being “Jewish” more than being “Israeli,” the poll reveals. 28.6% of respondents ages 18-34 identified more “Jewish” than “Israeli,” compared to 18.8% of respondents over 55 and just 14% of respondents aged 35-54.

    Time will Tell

    Despite the slight upper hand for Jewish identity in the poll, most respondents predicted that their children and grandchildren would identify primarily as “Israeli” and that Jewish identity would wane over time.

    18.1% felt that their descendants would feel more “Israeli” than “Jewish,” compared to 17.4% who felt that future generations would have a stronger Jewish identity.

    Respondents also predicted that, in 2034, only 49% of Jewish Israelis would identify as “Jewish” and “Israeli” equally, compared to 60.8% in 2014.

    Eran Baruch, CEO of Bina, stated that the poll is an important reminder of the complications of a Jewish state.

    “The choice between ‘Jewish’ or ‘Israeli’ [identities] reveals the tension in which [Israeli] society is immersed – between tradition and innovation, between religious identity and national identity,” Baruch stated. “Israeli society is an active melting pot of identities, each of which really fights to express itself and find its place [in society].”

    “Since we are a country with great religious significance, more than a fifth of the public feels more ‘Jewish’ than ‘Israeli,'” he continued. “This figure has implications for all aspects of Israeli life – military conscription, emigration, and a sense of belonging.” Article about poll written by Tova Dvorin.

  8. What Bibi proposes is an interesting concept Talmud + Democratic rights in Israel as a basic laws:

    Netanyahu told the head of Likud’s hareidi division Yaakov Vider at the conference that he intends to make the Hebrew calendar, which is based on Jewish law, the official calendar of Israel, reports Kikar Hashabat.

    The new law also would establish the Talmud, the core work of Jewish law, as an official basis for Israeli state law.

    “I’m going to personally be involved in the law defining the state of Israel as the nation-state of the Jewish people,” Netanyahu reportedly told Vider. “It’s a very important law that will influence how Israel will look in the future.”

    “I want to anchor in this law, that it will be a Basic Law that the state of Israel arose and exists on the basis of the Torah and the Jewish tradition,” Netanyahu explained, promising to define the Hebrew calendar as the official state calendar.

    Netanyahu also promised that “we will define in the law the Gemara as a basis for the Israeli legal system,” referencing the Jewish legal text analyzing the Mishnah, a legal work of the Jewish sages, which together form the Talmud.

    Discussing the new Basic Law on Sunday in a cabinet meeting, Netanyahu stated “the existence of the State of Israel as a Jewish state does not actualize itself enough in our Basic Laws, which is what the proposed law aims to fix.”

    Netanyahu stressed the law would not restrict the rights of non-Jewish citizens of Israel. Above quote extracted from Israel National News written by Ari Yashar

  9. The real battle rages on. The battle between the Jew and the Israeli. The former is destined to win while the latter will loose in the end as it has no legitimacy.

  10. The Israeli Left is opposed to the proposed new Basic Law because they want an Israeli state.

    They do not want a Jewish State. They want a state of “all its citizens” which would be Jewish in name only, not Jewish in substance.

    Everything else is a smokescreen.