Understanding the Context and Implications of Israel’s Jewish State Law

Declaration of the Establishment of the State of Israel (People's Council –May 14, 1948)
"… We, members of the People's Council … hereby declare the establishment of the Jewish State in Eretz-Israel, to be known as the State of Israel … The State of Israel will be open for Jewish immigration and for ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice, and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience and culture."

British Mandate for Palestine (Council of the League of Nations – July 24, 1922)
"Where as the Principal Allied Powers have already agreed that the Mandatory shall be responsible for putting into effect the [Balfour Declaration] … and whereas recognition has thereby been given to the historical connection for the Jewish people with Palestine and to the grounds for reconstituting their national home in that country…  the Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home … and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion… The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudice, shall facilitate Jewish immigration under suitable conditions and shall encourage …. close settlements by Jews, on the land, including state lands and waste lands not required for public purposes." 

Sam Remo Resolution (Four Principal Allied Powers of World War I – April 25, 1920)
"… The Mandatory will be responsible for putting into effect the declaration originally made on Nov. 2, 1917, by the British government and adapted by the Allied Powers in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of the non-Jewish communities in Palestine…"

Balfour Declaration (His Majesties Government – Nov. 2, 1947)
"… His Majesty's Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…"

United Nations Special Committee on Palestine Report, adapted as UN Partition Plan for Palestine (UN General Assembly, Nov. 29 1947)
"Palestine within its present borders… shall be constituted into an independent Arab State, an independent Jewish State, and the city of Jerusalem…"

Basic Law: Human Dignity and Liberty (Knesset, March 17, 1992)
"Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state".

Basic Law: Israel – the Nation State of the Jewish People (Knesset, July 19, 2018)
"The Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established. The State of Israel is the nation state of the Jewish People in which it realizes its national, cultural, religious and historical right to self-determination. The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People … The State shall be open for Jewish immigration and for the ingathering of the Exiles…  The State views the development of Jewish settlements as a national value, and shall act to encourage and promote its establishment and strengthening…"   

I chose to open this article with quotes from the instruments of the international community that set the foundation for the creation of the State of Israel and the Declaration of Independence, in order to re-establish the obvious — that Israel was always conceived as the nation-state of the Jewish people; not a bi-national or multicultural state devoid of any controlling identity and purpose and whose failure across Western Europe is now clear. In such a state, affirmative action for a small, persecuted minority — in the region — the Jews, should not raise such hackles.

Yet, the Basic Law: Israel – The Nation State of the Jewish People (the Law), has engendered more vociferous debate and demonstrations than any legislation passed by the Knesset in recent memory, surpassing by far the recent surrogacy and IDF draft laws that also tackle significant moral and national issues. Not only has it galvanized Diaspora Jewish sentiment — on both sides of the isle — but it has raised from relative slumber Israel's most loyal minority — the Druze, whose religious and political leaders have very publicly declared war on the Law, in addition to leaders of the Bedouin minority, many of whose members serve in the IDF. Nearly a month after being passed, even massive Hamas rockets attacks and the specter of another retaliatory Israeli ground offensive have not changed the level of discourse about the  Law.

Last Wednesday's special Knesset debate, called despite the summer recess, offered another opportunity for both sides to restate their positions. Newly-elected Opposition leader Tzipi Livni (Zionist Union) who sees opposition to the Law as a strong rallying point in the next election, whenever they are held, excoriated Prime Minster Netanyahu for the "damage [the Law] is causing to the values of equality and democracy."

Arguing that it runs counter to the Declaration of Independence and causes undue strife, she challenged him to immediately call elections that would serve as a referendum for the Law. Ahmad Tibi (Joint [Arab] List), who has accused Israel of being an Apartheid state, slammed the Law for anchoring a classification of citizens. Citizens who have everything are raised above other groups, a collective with high status, and below that is everyone who isn't Jewish and has no rights. Yesh Atid head Yair Lapid accused the prime minister of "eroding one value after another" — this time the value of friendship with regard to the Druze.

Offering a rebuttal on behalf of the government, Minister Zeev Elkin explained that just like the Basic Law: Human Dignity and Liberty took principals from the Declaration of Independence, and anchored them as Basic Law, so too does the Jewish Nation State Law. "Just as the rights of the individual were entrenched [in the Basic Law: Human Dignity and Liberty], we are making sure that the picture is in balance … When you go over the law article by article, there is nothing here that someone who still has a grain of Zionism in him could disagree with … [The] vast majority of the Israeli public is Zionist and is not ashamed of the fact that we are the nation state of the Jewish people."

The Law was first proposed nine years ago to fill a legal void left by the passage of a series of Basic Laws (that make up Israel's piecemeal constitution) that determined the powers of the three branches of government, assured the freedom of occupation, human dignity and liberty but did not establish the identity and purpose of the state — a cornerstone of any constitution.

Already back in 1948 the High Court of Justice found that the Declaration of Independence — that eloquently established Israel as the nation state of the Jewish people while assuring personal and religious freedoms and rights to all its citizens — has no constitutional or legal consequence. Furthermore, iconic and long-serving Supreme Court President Aharon Barak declared in 1995 that the two Basic Laws passed in 1992 — Freedom of Occupation and Human Dignity and Liberty — laid the foundation for a "constitutional revolution," appropriating the right of judicial review of all Knesset legislation in the light of these two Basic Laws.

Furthermore, when Jewish and democratic values collide — both of which appear as foundations of the Human Dignity and Liberty Basic Law — Barak ruled that the court would interpret the Jewish value with the highest level of abstraction, meaning — according to Tel Aviv University lecturer Emmanuel Navon — that it shall be ignored. This judicial revolution had very practical impact, as Barak's court and those that followed in his image, decided in favor of an Arab petitioner who sought to purchase a home in a village established by the Jewish Agency for Jews, but that a Jew could not purchase land in a Bedouin village, and has struck down dozens of other laws and amendments, some of which were showcase legislation for the government dealing with the illegal migrants and Haredi draft.

This judicial activism by the court irked many legal and political conservatives who accuse the court of being an unelected bastion of the Left that has won only two general elections since 1977 and is therefore out of touch with the majority of Israel society today.  The Basic Law now gives the court — which is evolving into a more ideologically balanced bench under the hand of Minister of Justice Ayelet Shaked — the tool to rule that the Jewish character of the state can rightfully take precedent over demands that the Jewish flag, anthem, calendar, immigration, settlement and Jerusalem should be replaced with an all-inclusive alternative.

On the issue of Arabic as an official language, this dates to an archaic Mandatory law dating back to 1922 which actually established English as the predominant of three official languages, alongside Arabic and Hebrew. When the official status of English was abolished as part of the first act of the provisional Knesset in 1948 immediately after Independence, Hebrew and Arabic remained as equal official languages. The Basic Law recognizes the fact that Hebrew is the leading language in Israel but assures Arabic a "special status." Furthermore, the law states that setting Hebrew as the state's sole "official" language "does not harm the status given to the Arabic language before this law came into effect."

Also, as David Hazony points out in a recent Forward article, the Jewish State Law communicates favorably with constitutions and laws of ethnically and historically based democracies across Europe where the nation of nation and state are well understood and entrenched, as opposed to the United States where it understandably is not, even among many Jews in relation to Israel. 

So in light of all this, why the outcry now that the principle of a Jewish state has been codified in actionable legislation? Demonstrators at Saturday night's anti-law rally at Tel Aviv's Rabin Square may have provided the answer. Chanting the Palestinian rallying call for violence against the State of Israel ("with spirit, with blood, we shall redeem you, Palestine") while waving the Palestinian flag (which, according to professor Eli Carmon, is a version of the rejectionist pan-Arab flag that symbolizes rejection of everything but Islam, these Israeli citizens showed that like many across the Arab world  they are yet to come to terms with Israel as a Jewish state and still seek to "redeem" it — all of it — even 70 years later, through violence.

Speakers at the rally — organized by the "High Monitoring  Committee for Arab Citizens of Israel" all supported the notion that Israel become “a state of all its citizens” — a specter that the leadership of the Arab minority and some in the Radical Jewish Left have actively promoted over the past decades, as reflected in the four "Arab vision" papers published in 2006 and 2007 by Arab civil society organizations, alongside support for the "Right to Return" by millions of Palestinian refugees and their decedents that together would put a quick end to the Jewish state. Many Israelis fear that these are the true sentiments held by many Israeli Muslim citizens, and has had a numbing effect on genuine efforts at civic co-existence and integration.    

Two major questions remain: First, how to placate the loyal minorities who — looking at the plight of minorities across the Middle East — recognizes that their personal and collective future is inexorably linked to continued Jewish control of Israel. This is particularly true of the Druze who, since Israel's independence, have served the state bravely and with distinction. Netanyahu has taken their concerns — that have lead to threats by Druze diplomats and officers to resign their posts in protest — to heart and has already made a number of proposals, including special legislation to recognize the status of the community, grants for programs etc. while not conceding on the integrity of the Law.
​
Another tack the prime minister could take to recognize the significant increase in Christian enlistment in the IDF could be to acquiesce to petitions to establish a community in the North for indigenous Christians who have utilized the new nationality option in the Citizens Registry and have as Arameans.

Finally, the prime minister will have to find the right words to explain to segments of the American Jewish population that while Israel cherishes their support, they should not be mistaken that Israel was created in the image of the multicultural United States melting pot (a notion that is failing in many Western European countries, reeling from the results of mass Middle Eastern and North African immigration). Instead, Israel should be celebrated universally by the American Jewish community as having prevailed as "a villa in the jungle" (a term coined by Ehud Barak) for seven decades against all odds and for providing the best chance for Jewish survival into the future.

---

Alan Schneider is the director of B’nai B’rith World Center in Jerusalem, which serves as the hub of B'nai B'rith International activities in Israel. The World Center is the key link between Israel and B'nai B'rith members and supporters around the world. To view some of his additional content, click here.