How Liberal Zionists Sowed the Seeds of Israel’s Nation State Law

Mike Pence visits the Knesset, 22 Jan 2018 (CC 2.0)

When Richard Spencer, one of the leaders of the Alt-Right movement in the United States, says that he is a “White Zionist”, and that he wants white people “to have a secure homeland that for us and ourselves just like you want a secure homeland in Israel”, he is often faced with an outpour of scorn from audiences that do not subscribe to his ideology. His ideas are dismissed as fantasies of a white supremacist emboldened by the rise of Trump in the US and other right-wings parties in the rest of the world. But when he says that he “turns to Israel for guidance” as “the most important and perhaps the most revolutionary ethno-state”, some have reasons –beyond the racism of the movement and the speaker- to resent the analogy he makes. Liberal-Zionist thinkers would usually balk at such an admirer, citing a range of reasons and texts in making the argument that Israel is a liberal democracy, But the Knesset (Israel’s legislature) has made their task harder by passing a new basic law, essentially a constitutional statute which together with other basic laws is seen as Israel’s formal albeit incomplete constitution.

Basic Law: Israel- the Nation State of the Jewish People is an odd piece of legislation. More than change anything in the legal landscape, it reasserts certain principles that have long been at the heart the (Jewish) Israeli consensus. While Palestinian citizens of Israel, who constitute 20% if the population, have rightly protested against the new basic law, the contestations of those who identify as liberal-Zionists are harder to comprehend, for the basic law repeats notions that they have tirelessly defended and justified. In many ways, they have sown the seeds of this basic law they are now decrying.

The debate on Israel’s character, and indeed the legitimacy of Zionism, has never stopped since the creation of the state in 1948. Critics question the justice of creating an exclusive Jewish state by colonising an Arab majority country. Supporters highlight a Jewish right to self-determination, claiming that Israel is the culmination of that right, and Zionism is the national movement that made it happen. Within the Zionist camp, Liberal-Zionists are those intellectuals and academics who try to balance a Jewish-only right to self-determination in Israel with liberal and democratic values. Politically and practically, reconciling these two ideas is not a simple task, if not outright impossible. Since the 1990s, the fine balance was represented by the mantra “Jewish and democratic”, which became Israel’s formal constitutional definition and was adopted in a handful of basic laws.

But the “Jewish and democratic” formula is itself too ambiguous and needs interpretation to have any real meaning. Liberal Zionist intellectuals try to combine a core of democratic attributes and a measure of civil and political rights with Zionist ideals. Of course they are not all made of the same cloth, and there are disagreements on how to reconcile the competing and contradictory elements, but the differences are generally a matter of degree than kind. Israeli academics such as Ruth Gavison and Shlomo Avineri, both of whom from the Hebrew University, Amnon Rubenstein, a former President of Tel-Aviv University, and Yael Tamir, an academic and a former Minister of Education are some of the prominent names that come to mind. The end goal of their intellectual exercises is to demonstrate that Israel, despite the fact that it constitutionally favours Jews, their culture and collective rights, and legally discriminates against 20% of its citizens, is a liberal democracy. This is usually done by comparing Israeli policies with certain policies in other carefully selected countries to demonstrate that many other countries adopt similar positions, or through developing superficial and reductive theoretical approaches to liberal democracy that water down both liberalism and democracy in a manner that would leave other liberal theorists scratching their heads.

Aharon Barak, the former Chief Justice of the Supreme Court and currently a professor of law at the Interdisciplinary Centre Herzliya, is perhaps the one person who has been the most influential in giving meaning to the “Jewish and democratic” formula. A towering figure in the Israeli legal scene and with an international following, Barak expounded the meaning of “Jewish and democratic” in numerous judicial rulings and extra-judicial publications and lectures. His constant attempts at reconciling the irreconcilable yielded mixed results, but always remained within the Zionist consensus. His liberal views on matters that did not necessarily challenge core Zionist beliefs about Jewish self-determination, Jewish majority and exclusive Jewish immigration did draw the ire of the more religious and rightwing groups. For such groups, Barak and the Supreme Court he led became the symbol of the liberal (and mostly Ashkenazi) elites. Some of the largest demonstrations in the history of Israel were organised by Ultra-Orthodox groups against the Supreme Court, including the 350,000 strong demonstration in 1999 against a decision that abolished the exemption from compulsory military service that yeshiva students enjoyed since 1948.

Given his reputation as a modern day prophet of Israeli liberalism, it is ironic that most of the provisions of the new basic law actually follow his understanding of what a Jewish state is. In fact, when the first bill for this basic law was introduced in 2011, Barak was quoted in the explanatory note, and the Member of Knesset who introduced the bill, Avi Dichter– the former head of the General Security Services during the Second Intifada, responsible for the detention and torture of thousands of Palestinians- defended it by stating that some parts were borrowed verbatim from Aharon Barak. At the time, Dichter was a member of the now defunct Kadima party which was then in the opposition. Even though it was founded by Ariel Sharon when he split from the Likud in 2005, Kadima was a party that combined neo-liberal economic outlook with a centrist view regarding the Israeli-Palestinian conflict. By Israeli standards it was a liberal party, and at its peak it counted in its rank many leaders who are usually seen as “moderate” such as Shimon Peres, Ehud Barak and Tsipi Livni.

While the basic law’s genesis is in a feeble attempt by a backbench Member of Knesset to get some media attention during the wilderness years in parliamentary opposition, the idea was recycled over and over again, gathering and losing momentum and supporters over the past 7 years. Several members of Knesset from different parties and sometimes the Government reintroduced it in the Knesset and sometimes killed it off, all depending on the exigencies of the hour. At times, it was brought back to life to distract from the ongoing investigations against Netanyahu, at other times it was reintroduced by Netanyahu’s coalition partners, Habayit Hayehudi (the Jewish Home) as an attempt to signal to the electorate who the real “Right” is. It is reported even Obama intervened personally to get the Government to drop it at some point during his presidency.

The final version of the bill that became law retained most of the earlier elements. It opens declaring certain principles that are drawn from the Declaration of Establishment of the State of Israel (1948) about Historic Palestine (or the Land of Israel) being the historic homeland of the Jewish people, and about Israel being the nation-state of the Jewish people where “it exercises its natural, cultural, religious and historic right to self-determination”. Apart from the addition of the “religious” right to self-determination, which has no parallel elsewhere in the world, all these principles could be drawn from the Declaration and the jurisprudence of the Supreme Court even during its most liberal years. Even subsection (c), that limits self-determination to Jews only, is not new. Most of the justifications that liberal-Zionists marshal for designating Israel as a Jewish state and as justification for the Law of Return start from the premise that Israel is the homeland of Jews only, and only Jews can exercise self-determination in Israel.

The section dealing with the official language has attracted a lot of attention. It establishes Hebrew as the language of the state, and relegates Arabic from the status of “official language” to a language “with special status” leaving it to the legislature to determine the details of what that would be. Also here there is no change: even though according to the Palestine Order in Council of 1992- a relic of the British Mandate- Arabic was an official language, the Supreme Court under Barak ruled that Hebrew is the principal language with Arabic having “a distinct and added value” over other languages that does not match the superior status of Hebrew. In other words, it is a language “with special status”.

Jewish settlement is another issue that the basic law highlights. Section 7 states that the “state sees the development of Jewish settlement as a national value, and shall act in order to promote its establishment and development.” This could hardly be differentiated from Barak’s view that sees a Jewish state as a state that promotes Jewish settlement and a “state that redeems state land for Jewish settlement”, as he stated in a lecture to the 34th Zionist Congress in 2002. The version that was adopted is the watered down version: the original bill had a subsection that would have allowed “a community, including those belonging to one religion or one nation, to have separate community settlements”. This was seen as an attempt to circumvent a ruling of the Supreme Court in which Barak ruled that Israel’s character as a Jewish state does not allow discrimination in housing- though other factors, such as security, could. But this ruling was in practice circumvented in a round-about way when the Knesset enacted a statute that indirectly allows discrimination in “community settlements”. The Supreme Court upheld the constitutionality of this statute despite the discriminatory intent and outcome.

One of the main contentions of the liberal-Zionists is that the new basic law does not include any reference to democracy or equality. Earlier basic laws which are still valid use the formula “Jewish and democratic” as the constitutional definition of the state, and this was not repealed by this basic law. Equality was never listed as a constitutional right in Israel, and in fact it was intentionally omitted from Basic Law: Human Dignity and Liberty. The Supreme Court however derived a qualified right to equality from human dignity which is a protected constitutional right: a violation of equality that is severe enough could be seen as a violation of human dignity. Beyond this, equality in Israel was always taken to be equality within the limits of Zionism. Palestinians do not have an equal right to immigrate to the country; the ability of those of them hold Israeli citizenship to sponsor Palestinian spouses for legal status in Israel is severely limited by law; and their ability to participate in the elections is contingent on accepting the Zionist narrative. Even though a qualified right to equality exists under Israeli law, it is limited by the Zionist ceiling. If equality means challenging core Zionist beliefs, then equality has to (and in practice did) give way.

But if this basic law does not make any significant change beyond reiterating the Superior status of Jews in the country, why are liberal-Zionists so opposed to it even though they would agree with all the principles in it? After all, they spilled too much ink defending them and providing the intellectual edifices to ground them, so why does listing these principles in one basic law offend their sensibilities now? Their liberal sensibilities were not offended by many other statutes or actions of the state. No one heard their protests when the Knesset passed statutes that severely curtailed the rights of the Palestinian citizens to sponsor spouses, or when the Knesset allowed for indirect discrimination in housing, or when the Knesset enacted a statute effectively outlawing any call for boycott of settlements or commemoration of the Palestinian Nakba. They were nowhere to been seen when the state destroyed and displaced the Bedouin villages of Attir Um El-Heiran and Al Araqeeb (inhabited by Israeli citizens) to build exclusively Jewish towns under what’s known as Judaization policy (later renamed “development”). All of these statutes and decisions were sanctioned by the courts, and in many cases the judges cited liberal-Zionist jurists to justify their reasoning.

It seems that they are more concerned with image and appearance. Amnon Rubenstein, a former legislator, Minister of Education, and a prominent professor of constitutional law contends that “everyone who reads the bill understands that it will help BDS [the boycott divestment and sanctions campaign against Israel] and increase Israel’s isolation in the West and within the Jewish diaspora.” Prof. Shlomo Avineri, another liberal-Zionist, is also concerned that the new basic law will increase tensions in Israel between Jews and Palestinians, and will “cause significant damage internationally”. Yael Tamir shares these concerns and adds that the new basic law “undermines Israel’s definition as a democratic state and expands the  growing gap between Israel and the Western world.” It seems that the main concern is that putting all of the ethno-religious and inherently exclusionary principles that are the core of Israel’s character as a Jewish state will seal the argument about Israel’s nature showing how it is closer to apartheid than democracy; how it is more Richard Spencer and less Martin Luther King. In 341 words, the basic law makes the argument that hitherto one needed thousands of pages to demonstrate. It is now a position that can’t be compared away, and liberal-Zionists have their fingerprints all over it.

Mazen Masri is a Senior Lecturer in Law at City, University of London. He is the author of The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Hart Publishing, 2017).

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