Why Israel needs its new nation-state law

It is no surprise that Jeremy Corbyn opposes the new statute defining the Jewish State. He and his extremist allies don’t accept Israel at all

Features
Jeremy Corbyn in Tunis at a 2014 event honouring terrorists who carried out the 1972 Munich Olympic massacre of Israeli athletes (Embassy of the State of Palestine in Tunisia)

Benjamin Netanyahu and Jeremy Corbyn don’t have a great deal in common. But one thing they do share is recognition that the essential character of the State of Israel is its Jewishness. They offer, however, opposing responses to this fundamental. For Netanyahu and the Zionist movement, Israel’s Jewishness is something to affirm and celebrate; for Corbyn and his allies, it represents Israel’s intrinsic evil and it is the reason they are fixated on this tiny plot of land.

Netanyahu’s position was articulated by a law recently passed by his government — a law that Corbyn opposes — that defines Israel as a Jewish State, the expression of the self-determination of the Jewish People. This legislation has provoked a negative reaction both in Israel and around the world. But to appreciate the nuances and significance of that reaction and the position of the Labour leader, one must first understand the provenance and purpose of the law.

The nation-state law was originally introduced as a Knesset bill in 2011 by a member of the centrist Kadima Party, which at the time was led by Tzipi Livni (now the leader of the Opposition and, rather cynically, a critic of the law), and had support from parts of the Israeli Left. The draft legislation went through various iterations and was debated by successive governments, and indeed was watered down from earlier versions, before being passed as a Basic Law in July of this year.

What is a Basic Law? Israel has no constitution. The State’s founders expected one to be written, but it has yet to materialise, due to disagreement over the content and even desirability of such a document. Instead, the Knesset has over the years passed a series of Basic Laws, which are designed to function as clauses of the eventual constitution. Most of them legislate how the Knesset and other branches of the state are to operate. Some Basic Laws are more than functional, however: one, passed in 1980, annexed the eastern portion of Jerusalem; another, passed a few years ago, requires a large Knesset majority or a national referendum on the surrender of any annexed territory.

Two Basic Laws concerned with human rights were passed in the early 1990s, thus safeguarding the “democracy” part of Israel’s “Jewish and democratic” character (insofar as democracy is taken to mean individual and minority rights). But there was no parallel Basic Law specifically guaranteeing the “Jewish” part, despite Israel being known worldwide as the Jewish State. Far from diminishing democracy in Israel, the intention behind this new nation-state law was to rebalance the equilibrium.

But this is only half of the story. Originally, the Basic Laws had no constitutional status. The plan was to pass them over time and, once that process was complete, assemble them as a single document, which would then assume constitutional status. The judiciary respected this approach for several decades, but Israel’s Supreme Court gradually deviated. Particularly following the passage of those two Basic Laws pertaining to human rights in the early 1990s, the Court established, not without controversy (indeed even without unanimity on its own bench), that all Basic Laws were to have immediate constitutional effect. In the process, the court arrogated to itself a much expanded power of judicial review — which for two decades has privileged the rights of the individual and minorities in the absence of a nation-state Basic Law.

This constitutional development was part of a larger campaign waged by the Supreme Court to aggrandise its authority. Today, Israel’s Supreme Court is one of the most powerful in the world, possessing a line-item veto over legislation and a seemingly limitless power of review over governmental decisions, including even matters of war and peace. Moreover, with the judiciary exercising ever greater authority over every office and ministry in government and narrowing the range of policy options available to elected officials even before they reach the cabinet or Knesset plenum, Israel has become a country governed by the rule, not of law, but of lawyers.

Since the Court and the judiciary are predominantly liberal and secular, those who wish to limit their authority are mostly among the Right and the religious. The ultra-Orthodox in particular have long resisted the composition of a constitution or the passage of Basic Laws because they do not trust the courts. As one official from an ultra-Orthodox party put it, “Voting on a Basic Law is an act of faith in the judges of this country, and we don’t have that faith.” Others on the Right have taken a different view: reform the system of judicial appointments (as the current Justice Minister, Ayelet Shaked, has sought to do) and pass legislation that compels the justices to judge differently (such as the nation-state law). The response from the judicial branch to such efforts was summed up by an outgoing President of the Supreme Court (its chief justice) a few years ago: “As far as I’m concerned there is no justifiable reason to limit [the Court’s] authority.” That the justices perceive statutes that try to instruct them how to judge as somehow limiting their authority is indicative of the state of Israel’s judicial branch. The nation-state law must thus be understood as part of the clash between branches of the State.

With that in mind, let’s consider what the new nation-state law actually says. It notes that the name of the State is “Israel”; describes the flag, emblem and anthem; states that “Jerusalem, complete and united, is the capital of Israel”; recognises the Hebrew calendar as the official calendar, Independence Day and Memorial Day as national holidays and the Sabbath and Jewish holidays as days of rest, while providing that non-Jews have the right to observe their days of rest; and proclaims that the state shall be open to Jewish immigration and will act to foster ties with Diaspora Jewry and preserve Jewish heritage. All of this is declaratory and merely describes established components of Israeli civic life.

It is, however, the two other provisions that have been seized upon as apparent causes of controversy. The first is the establishment of Hebrew as the official state language, with Arabic to hold a “special status” (with the proviso that “nothing in this article shall affect the status given to the Arabic language before this law came into force”); and the second is that “the exercise of the right to national self-determination in the State of Israel is unique to the Jewish People”.

On the language point, although Israel has always been associated with Hebrew, until the passage of this law Israel has had no official language. Its de facto languages were English, Hebrew and Arabic, a legacy of the British Mandate that had never formally been overridden. That said, while Israel’s courts have directed local authorities to be sensitive to users of Arabic, they have also affirmed Hebrew as the preeminent vernacular of the State. The recognition of Hebrew — which is the first language of the majority and known to the entire population — as the official language is symbolically important while changing nothing in practice. Moreover, official languages are common in the West, whereas elevating a minority language to special status is a lot more than most Western countries have done.

The concern for the wellbeing of Israel’s minorities has elicited a further criticism: that this law signals a creeping Jewish theocracy. This too is absurd: numerous states have established religions without being theocracies (including England), and, even after this law, Israel does not have an established religion (it recognises five). And whereas Jews and other minorities have been expelled or decimated across the Arab world, including in areas controlled by the Palestinian Authority, in Israel minorities are positively thriving.

The most intense controversy, however, has been over the law’s proclamation that Israel is an expression of the self-determination of the Jewish People alone. Given that ordinary people perceive Israel as the homeland of the Jewish People and often describe it as “the Jewish State”, and that this provision refers only to the collective right of the Jewish People rather than the individual rights of any of Israel’s citizens (which remain undiminished), it is telling that this legislation has provoked such a negative reaction. For one thing, a number of states, including several members of the European Union, have similar provisions in their constitutions. Latvia’s, for example, declares that “the sovereign power of the State of Latvia shall belong to the People of Latvia.” (It also, by the way, makes Latvian the “State language”.) As one legal scholar who backed the law has bemusedly observed, Europeans usually like telling Israel it should be more like Europe.

The opposition to the new law has taken several forms. For portions of the Israeli Centre and Left, its opposition is opportunistic (we noted above, for example, how Tzipi Livni’s party introduced the bill in the first place). The Israeli Druze, who are staunchly loyal to the State, have more complex concerns that may be mollified with greater resources being diverted to their community. For foreign critics of the law, often their opposition reflects ignorance of the real substance of the statute or of basic political concepts. For example, the British Board of Deputies released a statement noting its concerns, but when pressed to justify its position it embarrassingly emerged that the organisation does not actually understand what self-determination means.

These protestations, however, are all a sideshow. The real opposition to this law was exemplified by the thousands of Israeli Arabs who protested in Tel Aviv by waving flags of Palestine (note that their democratic right to do so has not been impacted by this law) and who want to see Israel destroyed. This opposition to the existence of Israel as a Jewish State stems from the refusal to respect the national claims of the Jewish People — the Jews’ self-definition as a nation with a right to sovereignty in its ancient homeland. This is the very purpose of Israel’s existence. The opposition is based on the deliberate misconception that the Jews are simply a religious community and not a national group, and therefore have no claim to sovereignty. The persistence of this misconception is what makes this nation-state law so necessary.

Even when there aren’t explicit calls for Israel to be destroyed, its Jewish identity is still subtly contested. For instance, Netanyahu has always insisted that peace negotiations with the Arabs involve recognising Israel as a Jewish State. The Arabs have consistently refused to offer this recognition, because they and their Western fellow travellers insist on imagining that Israel can be something other than Jewish, be it another Arab state, or a “bi-national state” or a “state of all its citizens”.

Similarly, when critics of Israel complain that it is not sufficiently “democratic”, they have in mind not individual freedoms and minority rights, transparent elections, a free press and freedom of assembly (on each of which Israel performs as well as any Western country). Instead, they see the “democratic” part of the “Jewish and democratic” equation as somehow a counterweight to Israel’s Jewishness. That is why one never hears a proposed state of Palestine described as “Arab and democratic” — this is not merely because everybody acknowledges that realistically such a state would not be democratic, but also because nobody objects to the characterisation of Palestine as an Arab state. But they do object to Israel being a Jewish State.

Jeremy Corbyn shares this objection. He and his supporters cannot accept the legitimacy of a Jewish State, which is why he is comfortable laying a wreath and joining an Islamic prayer at a memorial for a Black September terrorist who murdered Israeli athletes at the Munich Olympics and was sworn to Israel’s annihilation. And it is why, in defending his decision following condemnation from Netanyahu, Corbyn claimed solidarity with those thousands of protesting Israeli Arabs who also support the destruction of Israel.

It is this sentiment that motivates Corbyn in the unending Labour anti-Semitism row. Under his leadership, the Labour Party has refused to adopt the full International Holocaust Remembrance Alliance working definition of anti-Semitism and has omitted from the party’s ersatz definition the odious claim that the Jewish State is a racist endeavour. That’s because to Corbyn and his allies and his terrorist “friends”, it is.