The Basic Law

A few weeks ago, on November 23, the Israeli cabinet by a vote of 14 to 6 approved a piece of draft legislation called “Israel, the Nation-State of the Jewish people” that calls for the establishment of a so-called “Basic Law” that would establish the essential Jewish nature of the state as the legal foundation upon which all other governmental policies would thence forth have to rest.

For most of us looking in from the outside, the intense, emotional debate regarding the proposal that then ensued seems, to say the least, like a lot of fuss over nothing at all. Isn’t Israel already a Jewish state? (When someone uses the expression “the Jewish state” to refer to one of the countries of the world, after all, does anyone have to wonder which specific country is being referenced?) Nor is this just a convention of modern speech: the Declaration of Independence promulgated by the nascent nation’s leadership in 1948 referred specifically to “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state.” And then, getting even more precisely to the crux of the matter, independence was declared using the following words: “Accordingly, we, members of the People’s Council, representative of the Jewish community of Eretz-Israel and of the Zionist movement are here assembled on the day of the termination of the British mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel to be known as the State of Israel.” How much clearer could they have been with respect to the Jewish nature of the Jewish state they were attempting to establish in the Jewish homeland?  (If you are reading this electronically, you can access the full text of the Israeli Declaration of Independence, still stirring even after all these years, by clicking here.) And so we come to this week’s riddle: if the Jewish nature of the state is formally and unambiguously embedded in the declaration that established the nation’s independence, then how could it possibly be a matter of controversy for Israel now, sixty-six years later, to affirm in law that aspect of the state’s essential nature?

Nor, for the record, do the supporters of the proposed legislation see themselves as opposing the intent of the Declaration of Independence. In fact, just the opposite is the case: the second paragraph of the proposed Basic Law specifically says that its purpose is “to secure the character of Israel as the Nation State of the Jewish people in order to codify…the values of Israel as a Jewish democratic state in the spirit of the principles of its Declaration of Independence.” (To see the full text of the proposed law, click here.) And that brings us to our second riddle (which is really just a secondary version of the first): if the proposed Basic Law merely resumes and re-asserts the ideals set forward in the founding document of the state, then why would anyone consider it controversial or provocative?

Nothing in Israel is ever so simple, however. There is, for example, wide-spread expectation is that the Prime Minister will personally alter the current text of the proposal before submitting it to the Knesset so as formally to guarantee the civil rights of all Israeli citizens. (The proposal itself already includes a clause that reads that “each resident of Israel, without regard to his religion or nationality, shall be entitled to strive for the preservation of his culture, heritage, language, and identity.” So the PM’s addition would just be a way of underscoring an idea already included in the text of the proposed legislation that also appears explicitly and unequivocally in the Declaration of Independence as well.) Yet, in the warp and woof of that specific issue—the one of the basic compatibility or irreconcilability of a nation’s core concept of itself as possessed of a specific ethic character and its commitment to function as a democracy in which no citizen’s right to cultural or spiritual self-expression is any different than any other’s—in that specific issue rests the core of the controversy that has erupted in many different circles regarding the essential defensibility of the proposal and its reasonableness.

On the face of it, nations in our world are routinely awarded the right to self-define in terms of national culture. Iran self-defines as an Islamic Republic and the world seems fine with that. That seems reasonable in light of the fact that 99.3% of the population in Iran actually is Muslim, but what about the case of European countries that similarly self-define as the homeland of their largest ethnic group yet where the percentage of actual people belong to that nation’s eponymous ethnicity is far lower? I read a very interesting essay in the Washington Post last week by Eugene Kontorovich, a professor at the Northwestern University School of Law, in which he reported that there are seven European Union countries that themselves have “nationhood” clauses in their constitutions that declare that country to be the homeland of its largest ethnic group. By way of example, he points at the constitution of Latvia, which speaks unambiguously about “the unwavering will of the Latvian nation to have its own State and its inalienable right of self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture….” That sounds relatively non-controversial, but the numbers suggest that otherwise could or should be the case: more than 99 out 100 Iranians may be Muslim, but only 62% of the population of Latvia are ethnic Latvians—a number that compares interestingly to the more than three-quarters of the Israeli population that is Jewish. Yet the world seems irritated neither with Latvia nor with Iran for self-defining in terms of their national culture…but only with Israel for attempting to enshrine its national mission to promote its own ethnic heritage in law.

In many ways, Kontorovich writes, Israel is more liberal than its EU critics. The head of state of Israel, for example, is not required by law to be Jewish—and, indeed, Majalli Wahabi, a Druze, served as Acting President of Israel briefly in 2007—but that is not the case in the twenty-two other countries that specifically do require by law that their head of state subscribe to a particular religion. (Of those countries, seventeen require that the head of state be a Muslim.) And in addition to those nations, another nineteen require that their ceremonial (i.e., not-formally-political-power-wielding) monarchs be of a specific religion…and in that group are included such bastions of human-rights-based democracy as the U.K., Denmark, Sweden, and Norway. So that would make a total of forty-one countries that insist that their prime minister, president, or sovereign represent the faith that that nation wishes to recognize as its own…a recognition that simply ignores the fact that, with the exception of Saudi Arabia, every one of those countries has large or small minority groups among its citizens who are not of that religion at all.  If you are reading this electronically, you can read the two parts of Professor Kontorovich’s article by clicking here and here.)

I suppose part of the question has to do with the image of a nation as the aggregate of its citizenry. When one of Israel’s great poets, Amir Gilboa, wrote about the process that led to Israeli independence in 1948, for example, he didn’t choose to describe the process in terms of national or international politics, but instead as the awakening of the nation to the realization of its own existence: “It sometimes happens that a man awakens one morning with a start,” he wrote, “and realizes that he is a nation, then begins to walk as he calls out in peace to all he meets.”  And because we all think of nations in that way—as the large and complex version of the individual—we naturally attribute the same human rights to nations that we do to people, the rights to self-definition, self-determination, and cultural self-expression foremost among them.  It is precisely in that sense that it feels natural and normal for the United Kingdom to self-define in terms of its national church and to require its monarch serve as the titular head of that church. (Among her many titles, Queen Elizabeth has the title of “Defender of the Faith and Supreme Governor of the Church of England.) And it is in that same sense that it feels reasonable for so many nations, in Europe and elsewhere, to self-define in terms of their national heritage: it feels normal for the Spanish Constitution to make Spanish the nation’s only official language, even though I’m sure that irritates those many citizens of Spain whose mother tongues are Catalan or Basque. They live with it, I suppose. What else? So too the Bretons in France and countless other ethnic groups housed in nations whose majority culture they do not share.

Given the world’s willingness to accept the right of nations to self-define in terms of their majority culture, the avalanche of criticism levied at Prime Minister Netanyahu for endorsing the legislation and offering to bring it to the Knesset for approval is hard to explain…and particularly coming, as so much of it does, from nations that themselves openly and unabashedly self-define in terms of their national culture. Israel could not be clearer in terms of its commitment to safeguard the rights of its minorities. (It bears mentioning in this regard, that the Palestinian state that France, Spain, Britain, Ireland, and Sweden seem so eager to recognize that even the fact that it doesn’t actually exist is no deterrent—that that state specifically plans not to permit Jews to live within its boundaries as a protected minority group: why else would they care so fiercely about the presence of Jewish settlements in a future Palestinian state given that their residents would represent less than 10% of the population? By way of comparison, Arabs constitute 20% of the population of Israel.)

In my opinion, hiding behind the ferocious opposition in so many quarters to the Basic Law is uncertainty whether Israel has the right to exist at all. Why else would its right to self-define culturally or linguistically be so contentious an issue?