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What Are “National Rights”?

The "Jewish State" bill and the future of Israeli democracy.

I’m puzzled by the so-called “Jewish State” bill currently in the process of making its way into Israeli law.

Not by the politics of the law – that I understand. The law is a classic “wedge” issue, a symbolic way of spitting in the eyes of one’s opponents. It’s disgraceful, but it’s not exactly uncommon in politics. All the right people – that is to say, the left people – will be outraged, and in their outrage will say things that convince all the right people – that is to say, the people on the right – that they had better vote for “patriotic” parties in the upcoming election.

But would the bill actually do anything?

The original context in which the law was drawn up would be comical were it not so pathetic. The Israeli government demands that, as part of any peace agreement, the Palestinian side recognize Israel as a Jewish State, something the Palestinian side has always explicitly refused to do. When the bill was originally conceived, the notion was that, if Israel were defined in law as a Jewish State, then recognizing Israel would by definition be recognizing its Jewish “character” – and surely the Palestinians would not withdraw their recognition of Israel as such. Thus: de-facto recognition of Israel as a Jewish State would be accomplished.

This was a ludicrous rationale for a law on its face, because it was obviously not going to work. You can’t premise success in negotiating a peace agreement on the idea of tricking the other side into agreeing to something that they don’t actually support, or on the idea of tricking your own camp into believing their objectives have been met. This really is playground-appropriate stuff.

But Benjamin Netanyahu, in defending the bill, argued that there was a substantive purpose as well: preserving the “national rights” of the Jewish nation without, as he saw it, contravening the precepts of democracy:

The state of Israel is a Jewish and a democratic state. These two values are intertwined, and one does not outweigh the other. We promise equal rights for everyone, regardless of religion, race or sex. At the same time, Israel is the nation-state of the Jews only. This combination between the the rights of the nation and the rights of the individual, serves as the central thread in all of Israel’s founding documents.”

What are those “rights of the nation” that Netanyahu refers to? As examples, Netanyahu cited “a flag, anthem, the right of every Jew to immigrate to Israel and other national symbols.”

Here’s what I find puzzling about this. Suppose that there were a proposal to change the Israeli flag to something less-identified with the Jewish people – say, one of those tricolors the Europeans are so mad for. What would the consequence of the Jewish State law be for such a proposal? Would it be inadmissible for consideration in the Knesset? Would only Jewish MKs be allowed to vote on it? How would the “Jewish nation” exercise its national “rights” on this question?

Obviously, these kinds of prohibitions would be transparently undemocratic. But if nothing of the sort is contemplated, what, exactly, is being codified here, other than a reaffirmation of the status quo?

Well, we should be clear about what the status quo means – within the Green Line, not in the territories. It means that Arab citizens can be discriminated against in housing, including state-supported efforts to move Jewish citizens into Arab-dominated regions coupled with local discrimination to keep Arab citizens out of Jewish areas. That they can be discriminated against in education – most Arab citizens are educated in a separate school system from Jewish Israelis (actually, there are three official “streams” in Israeli education, secular state schools, Jewish religious state schools, and Arab schools, plus a large set of ultra-Orthodox Jewish religious schools that are outside state control but receive state support, plus a small smattering of independent schools, but now I’ve probably given too much information). And so forth.

That status quo has substantial majority support among Jewish Israelis. But it does not have overwhelming support among the judiciary. The High Court recently upheld the current law that permits discrimination against Arab applicants in housing in small communities, but did so on a narrow majority on largely procedural grounds. There’s every reason to believe that, even as the country moves right, the judiciary might increasingly flex its muscles against that majority’s efforts to criminalize dissent and sanction invidious discrimination.

This, in my view, is the most tangible practical significance of the Jewish State bill: that it would provide a legal justification for upholding the legitimacy of the discriminatory aspects of the status quo when faced with legal challenge.

The Law of Return, after all, already exists, as does the Chief Rabbinate, the national anthem, the flag, and so forth. None of these are expressions of liberal ideals, but none of them exceptional among nations either – other countries have flags and anthems that reflect or come to embody a national character, established religions are hardly unheard of (particularly in Israel’s region), and even the idea of immigration preference for the dominant ethnic group is common among countries with a large co-ethnic diaspora. There’s no plausible purpose to a law that merely reiterates these things that are already established, and no way that passing such a law would secure them against a popular majority that actually wanted to change them – and meanwhile a majority of Israeli citizens is moving rapidly in the other direction politically-speaking, so such a liberal majority is not exactly in the offing. The only practical threat to existing arrangements comes from the courts. So that’s where I locate the practical import of the law.

The more pressing practical question of identity that Israel needs to deal with, as I’ve been saying for years, is whether to grant national minority rights to its Arab sector, which would imply a higher degree of autonomy in questions of land use and so forth. If Israel really does want to remain a Jewish national state while also moving towards something resembling fair treatment of its Arab minority, that would seem to be the direction to go.

Meanwhile: if Netanyahu is really determined to place the question of the Jewish character of the state beyond the reach of democratic politics, I modestly propose that he go all the way, and thereby remove all doubt about where the country is headed.



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