The Jewishness of Israel

As we move forward through the next weeks, I hope to discuss many of the issues that I found the most interesting and the most controversial this summer in Israel. Some I have addressed already, but others are—at least in their current iteration—brand new. Some have aroused a lot of interest outside of Israel, while others appear to have garnered almost no attention outside the nation’s boundaries. And some strike me as truly crucial issues, while others appear to me—an outsider, admittedly, but a regular visitor and an informed observer—to me, at least, as a huge amount of ado about almost nothing at all.

And so, first up is the issue that has aroused the most controversy both inside and outside of Israel, the newly passed Basic Law, more correctly known as the “Basic Law: Israel as the Nation-State of the Jewish People.”  All, even the most vehemently outraged, seem to agree that this law was almost entirely symbolic and merely grants a level of official recognition to a situation that all know already to exist and that all observers have considered fully self-evident for the last seventy years. Even Sayed Kashua, an Arab-Israeli author violently opposed to the new Basic Law, had to admit in his red-hot New York Times op-ed piece a few weeks ago that this summer’s bill simply makes de jure a situation that has been de facto reality since the founding of the State.

Defenders of the law have made the point, and sharply, that the Israeli Declaration of Independence formally acknowledged the Jewish nature of Israel at the moment of its national inception and that this summer’s bill merely ratified that concept and granted it a level of official recognition it has lacked from then to now. And, indeed, the opening lines of the Declaration could really not set out the concept of the Jewish nature of the new Jewish state in clearer language:

The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.

After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. 

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, ma∙apilim [that is, immigrants coming to Eretz-Israel in defiance of restrictive legislation] and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country's inhabitants, and aspiring towards independent nationhood.

But, as Americans also know, a Declaration of Independence is just that, a declaration that serves as a kind of political statement of intent and of ideals by a nation’s founders, and not a bona fide legal document at all. (That is why the oath of office that the President of the United States takes at the inauguration ceremony references the obligation to “preserve, protect, and defend the Constitution of the United States” and not, say, to uphold the ideals of the Declaration of Independence.) And this accurately mirrors the situation in Israel as well, say Israelis who favor the Basic Law: since Israel does not have a written Constitution akin to the U.S. one, the decision was made early on—in a 1950 decision of the Israeli Supreme Court called the Harari Decision—that in lieu of an American-style foundational document, the series of Basic Laws passed by the Knesset over the years would serve as the legal foundation for Israeli jurisprudence. This summer’s initiative, therefore, is merely an effort to translate the basic values of the Declaration of Independence into Israeli law, almost precisely in the way that the delegates to the Constitution Convention of 1787 took the task upon themselves to enshrine the values and principles that led to American independence in a legal document that would serve as the basis for future American law. And, they ask, should that be more controversial in Israel than it was in America…or in any modern country?

Furthermore, a nation’s right to self-determination and self-definition being basic to its sense of national self, this kind of effort to establish in law the values and principles that led to a nation’s founding is not seen in any other quarter as bogus or racist merely because the nation in question has citizens, even lots of them, who are members of minority faiths, ethnic groups, or language groups. Iran self-defines as an “Islamic republic,” for example, and the world seems to find it not at all troubling that there are non-Muslims among the citizenry. So do Pakistan, Mauritania, and Afghanistan, all three of which nations have non-Muslims among their citizenry. Nor do I notice people suggesting that Norwegian or Icelandic products be boycotted because their nations’ constitutions recognize a specific religion as the national one despite the obvious truth that among the nation’s citizens are people who subscribe to different faiths. The U.K. also has an official religion, by the way—and British law requires that the sovereign belong to it. But I can’t recall ever hearing anyone denounce the British for maintaining a formal relationship as a nation with the Anglican Church, much less suggesting a boycott of British products until the U.K. renounces its ties to its own national church…to which only a  minority of the population maintains formal affiliation. (It is true that a majority, 62%, of British Christians are Anglicans. But fewer than 60% of the general population are affiliated with any Christian church—a majority, to be sure, but not a very large one.)

When taken in the context of other nations’ foundational documents, formal constitutions and otherwise, the situation seems even stranger to me. The Basic Law makes Hebrew the official language of Israel and grants Arabic special status and guarantees that the level of official Arabic usage will be maintained. (Arabic is the native language of about 18% of Israelis.)  By comparison, the Latvian Constitution recognizes Latvian as the national language of Latvia despite the fact that about a third of the citizenry speaks Russian, not Latvian. The Spanish Constitution makes Spanish the nation’s national language, and requires that citizens conduct their affairs in that language regardless of their actual native language, be it Basque or Catalan or any one of several lesser-known native tongues spoken by Spanish citizens. And many other nations, particularly ones that are the homes to unusual languages that are not widely studied or known elsewhere than in that single country—nations like Estonia or Armenia—have enacted laws designed to promote the use of the national language regardless of the fact that some of the citizenry grew up speaking different languages and continue to speak them. About these laws, however, no one seems much to care.

Regarding immigration, the Basic Laws specifies that the “ingathering of the exiles” concept will remain fundamental to Israeli immigration policy and that, as a result, Israel will remain permanently open to Jewish immigration. Given the fact that the 1950 Law of Return declares unequivocally that “every Jew has the right to come to this country as an oleh,” that is, “as an immigrant,” the response to this part of this summer’s Basic Law seems particularly surprising. Nor is there any lack of international parallels: the laws of many nations, including such Western democracies as Italy and Ireland, grant special status to would-be immigrants who belong to the nation’s ethnic majorities. There is an American parallel to this as well, as Eugene Kontorovich pointed out in an essay in the Wall Street Journal  last July: the State Constitution of Hawaii specifically authorizes the state government to create policies that will facilitate land acquisition by native Hawaiians by enacting preferential policies openly favoring ethnic Hawaiians over the rest of the state’s citizenry.

So the short answer is that nothing has changed and the Basic Law largely codifies policies that have been in place  for well more than half a century.  And yet, the level of real anger—expressed both inside and outside of Israel in massive demonstrations and petition-signing campaigns—seems to me rooted in something more basic than the decision formally to declare Hebrew the national language of Israel or to create a legal basis for the Law of Return almost a cool seven decades after it was voted into law by the Knesset.

In an age of rising nationalism, many people—myself included—are at least on some level wondering what the whole concept of nationhood should mean in the post-colonial world.  The myriad issues relating to immigration here and particularly in Europe are part of this as well. As is the cardinal question of what it could or should mean for a nation to embrace a specific culture and to promote that culture to the exclusion of others. Sometimes, the issues involved are benign or, at the very least, not oppressive. (I have no clear idea why Christmas should be a federal holiday in a nation that has no state religion, but I’ve long since stopped fretting about it.) But other times the effects of enshrining a national culture in law are profound. So the larger question is really whether the concept of a national state with its own culture—and the attendant baggage that culture brings along in its wake—whether that idea is something that deserves a place at the table, so to speak, in the twenty-first century…or whether it should be consigned to the dustbin of history along with its malign offspring: ultra-nationalism, ethnocentrism, racism, and xenophobia. Or should the idea be specifically not to pitch out the baby with the bathwater and so to attempt thoughtfully and rationally to pursue a policy that promotes the healthy growth of a nation’s chosen identity without allowing its policies to veer off into intolerance or prejudice?

In the end, there are nations and there are nations. Some, like Israel, are the sole nation-states of an indigenous people whose land has been occupied over long centuries by a long list of foreign invaders and colonialists. Nations like that—Armenia, Finland, South Korea, or Estonia would be good examples of others—have, it seems to me, a reasonable right to promote their national heritage as long as that formal effort does not result in untoward discrimination towards citizens merely because they self-define culturally differently. Our own nation promotes American culture in countless ways. So do most countries. To single out Israel for opprobrium because of its wish to see itself as the embodiment of the national aspirations of the Jewish people is to deny it a right easily and almost automatically offered to every other nation. And that, it seems to me, is defensible solely by arguing that ultimately the Jewish people has no right to its own nation, its own national culture, or the pursuit of its own national aspirations. I’m sure there are people out there who think just that. But I’m far less sure why anyone who does not feel that way would be enraged by the Knesset’s decision to ratify as law the principles that have guided Israel since 1948.  The timing may have been controversial. There may even have been no specific need to undertake this specific action at this specific moment in history. But, in my opinion, the Basic Law itself seems a reasonable attempt to enshrine in law values that have been part of Israel’s national sense of purpose and identity for the entire length of its history as a modern state.