On the Dangers of Enshrining National Character in the Law

Nir Kedar in Defining Israel: A Forum on Recent Attempts to Determine Israel's Character

The controversy over the proposed Basic Law: Israel is the Nation-State of the Jewish People revolves mainly around its content. The questions raised in the debate are, for example: Does the bill discriminate against non-Jewish Israelis (mainly the significant indigenous Arab minority)? or, Will this law reshape the relations between Israeli and non-Israeli Jews?

I wish, however, to elaborate on preliminary questions: Do we need this law? Do Israelis need to enshrine Israel’s Jewish character in their laws? Is it wise to do so? Following Lilienblum, Herzl, Jabotinsky, and Ben-Gurion, I answer with an emphatic “no”! The proposed bill is superfluous and dangerous: it will not secure Israel’s character as a Jewish state and has the potential of igniting a heated Kulturkampf in Israel and the Jewish world. I strongly support Ruth Gavison’s recommendation to avoid such legislation.

The wish to enshrine Israel’s Jewish character in the law has two motives. First, laws that declare Israel as the Jewish people’s nation-state are perceived by many Israelis to be an adequate response to the anti-Zionist attacks on the legitimate right of the Jews to self-determination in such a state. Since it is doubtful whether a declaratory law announcing Israel as the nation-state of the Jewish people is a wise and effective response to the (unjust) attacks on Zionism’s legitimacy, I will not discuss that claim here.

The second motivation to codify Israel’s Jewish character is to fortify the state’s Jewishness in light of the (imaginary) threats that, according to some, jeopardize Jewish culture. Thus understood, the proposed law, in its various forms, is the legal equivalent of the seminars and school curricula that strive to inculcate Jewish identity among Israelis and “strengthen” it (whatever that means), or of the Reshet Gimel radio station that plays only “Hebrew music” (i.e., Arabic, Greek, American, Russian, or other music with Hebrew lyrics). The exact purpose of Reshet Gimel and the “Seminars for Jewish Identity” may be vague, and even ridiculous, but they are harmless; the proposed bill, on the other hand, is also dangerous. I will focus on the difficulty, futility, and perils inherent in the attempts to enshrine Israel’s Jewish character in legal norms.

In opposition to the confidence of the drafters of the different nation-state laws, national identity is very difficult to define. Anthony Smith has reminded us that “even ethnic communities, so easily recognizable from a distance, seem to dissolve before our eyes the closer we come and the more we attempt to pin them down.” History demonstrates that one hundred years of efforts to express Jewish identity and culture in formal documents have amounted to nothing.

Modern Jews (in and outside Israel) have always been divided as to the definition of “Judaism,” “Jewish culture,” “Jewish law” or “Jewish state” and did not know how to translate these into formal laws and documents. Consequently, the Zionist movement and, later, the State of Israel have avoided the cultural debate over the exact character and definition of Jewish identity and never codified a definition of this identity in its legal documents. Strange as it may sound to the enthusiastic proponents of the nation-state laws, since Israel’s Declaration of Independence, the Israeli parliament has persistently declined all attempts to declare the state’s Jewish character in law. Paradoxically, the legislation of the proposed basic laws is clearly a post-Zionist step.

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Zionism was born out of the modern transformation of Europe and its Jews. The massive processes of modernization and secularization stimulated among many Jews sentiments of bewilderment and tensions between their traditional beliefs and practices and the modern principles and lifestyle. Zionism’s ultimate aim was to solve this identity conundrum by enabling the Jews to be (as Israel’s first prime minister, David Ben-Gurion, put it) “one hundred percent Jewish and one hundred percent free.” In other words, the Zionist ultimate end was cultural, but the means to achieve it were political: Jewish immigration to Palestine and the establishment of an independent state, or at least sovereignty of a lesser degree, in which Jews would form the majority and in which modern Jewish culture would be able to exist freely over many generations.

The Zionist ultimate end was cultural, but the means to achieve it were political

Zionism believed that without Jewish sovereignty no Jewish culture could flourish over time. Reality in Europe showed that even in places where Jews had achieved emancipation and equality, it would be impossible to ensure the long-term existence of Jewish culture and its resistance to depletion and assimilation. It was even less possible to ensure the future of Jewish existence, both physical and cultural, in places in which Jews had been persecuted. Therefore, from its inception, the Zionist movement focused all its energies and resources on the creation of a Jewish state and refused to take part in the cultural debate regarding modern Jewish identity (such as the one promoted by Ahad Ha‘am, or the “Democratic Fraction” at the turn of the 20^th century). In particular, it declined the formal attempts to define Judaism, the “Jewish people,” or “Jewish culture” (and subsequently Israeli culture).

Already at the end of the 19th century the Zionist majority had rejected in its entirety Cultural (or “spiritual”) Zionism, which attracted many intellectuals and continues to do so to this day. The Lovers of Zion (Hovevei Zion) rejected it, as did later Herzl and his supporters, the leaders of the labor movement, and even the Mizrahi religious party and the Revisionist right-wing Zionists. Cultural Zionism remained marginal throughout the 20^th century — both before and after the establishment of the State of Israel.

The Zionist movement regarded the attempts to fight over the contours of Jewish culture and the definition of Jewish identity as hopeless and even dangerous. Many considered them hopeless because cultural renaissance alone could not rescue Judaism from its predicament, and certainly not the Jews from theirs. What was the point of bickering endlessly over the questions of Jewish culture when there was no institutional, social, and political guarantee that would ensure its existence? Furthermore, Zionist orthodoxy always regarded cultural approaches such as Ahad Ha‘am’s as dangerous to Zionism. According to most Zionists, the cultural lure of the belief that they could preserve Jewish heritage and at the same time shape a modern and enlightened Judaism to bestow upon the Jewish masses concealed a rocky road with an unclear route and destination that would lead to a Kulturkampf, and even jeopardize the unity of the Zionist movement and its ability to cope with the monumental challenges it faced.

Therefore, in the course of Zionist history, the potentially dangerous cultural debate was always rejected in favor of the effort to establish an independent state. The dominant Zionist position was that the character of the Jewish state would be Jewish by definition, as most of its citizens would be Jewish and because the national framework would express and support the culture of the Jewish majority. Thus, for example, when Vladimir (Ze‘ev) Jabotinsky was asked by the Royal Committee in 1937 what would be the special Jewish characteristics in the constitution of the future Jewish state, he replied:

I do not believe that the constitution of any state should include special paragraphs explicitly guaranteeing its “national” character. Rather, I believe that it would be better for a constitution if there were fewer paragraphs of this kind. The best and most natural way to guarantee the “national” character of a state is by the fact that it has a certain majority. If the majority is English than the state is English, and there is no need in special guarantees.

Ben-Gurion and most of the Israeli elite shared the same opinion. A major reason Israel refused to adopt a single constitutional document was to refrain from a bitter Kulturkampf on the exact legal definition of Israel’s identity. For that reason, the nascent state adopted a series of basic laws instead of a comprehensive document with a fancy (and precarious) preamble. For one hundred years the Zionists and Israelis successfully rejected the temptation to define Jewish culture or anchor Jewish identity in their laws and formal documents.

Alas, since the 1980s, the Knesset has chosen to pursue another path: formal (yet vague) legal declarations now assert that Israel is a “Jewish and democratic state,” whose judges must rule according to ethical and political principals taken from “Jewish heritage.” Apparently, the members of Knesset who coined these nebulous legal formulas hoped that such declarations would both express Israel’s Jewish character and enable Israelis to avoid the perilous culture war involved in the attempts to delineate Jewish and Israeli culture.

These relatively new ventures are superfluous and perilous, as are the proposed nation-state laws. Clearly, identity and culture are not dependent on formal legal declarations. The Jews in Israel were sure of their Jewish and Zionist identity even before 1992, the year in which Israeli law first declared Israel a “Jewish and democratic state,” and it can be assumed that they would continue to adhere to their Jewish identity were their laws silent about the state’s Jewishness or obligate judges to refer to principles of “Jewish heritage” in certain cases.

Israel’s Jewish character would not be damaged even without a basic law declaring and explaining its Jewish identity. Israel would still be the country of more than six million Jews living full, vibrant, and diverse Jewish lives, with or without a nation-state law. It is also evident that enshrining the state’s Jewish character in law neither reinforces Jewish identity nor reinvigorates Jewish culture nor protects it from the (imaginary) dangers of diminution and destruction. Jewish culture in Israel is not at all in danger, and history shows that codifying the expressions “Jewish heritage” or “Jewish and democratic state” have not strengthened Israel’s Jewish character in the least.

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The attempts to enshrine Jewish identity in legal documents have the potential to inflame a dangerous Kulturkampf among Israeli Jews, as well as between Israeli Jews and non-Jews, and between Jews in and outside Israel. In order to appreciate the danger of such endeavors let’s look at the grim history of the supposedly innocent declaration of Israel as a “Jewish and democratic state” included in the 1992 basic laws. Similar to the proposed nation-state laws, the drafters of the 1992 legal declaration sought to express the idea of Israel as the nation-state of the Jewish people. But in fact they coined an unfortunate phrase that seems to place Judaism and democracy as two confronting “values.”

The fact is that close to one hundred percent of Israeli Jews define themselves as Jewish

The phrase “Jewish and democratic state” ignites societal tensions, rivalries, and schisms because it creates the mistaken impression that Jewish society in Israel is composed of two sectors: Jews versus democrats, religious versus secular, proponents of Jewish culture versus modern-day “Hellenists” who prefer “universal” (or “Western”) values such as citizenship and democracy over Judaism. This, of course, is a sad mistake. Never were there two such camps in Israel. All Jewish Israelis — religious and secular — enjoy Jewish identity and conceive of Judaism as their national culture. True, they have varying conceptions of Judaism but the fact is that close to one hundred percent of Israeli Jews define themselves as Jewish.

Similarly, the overwhelming majority of Israelis are devoted to democracy, the rule of law, human rights, and the idea of universal citizenship. This well-established “democratic identity” explains Israeli society’s success in establishing a law abiding democracy despite the harsh circumstances in which the state was established. Jews never saw a contradiction between their Jewish religion or culture and being citizens of a democratic state. This destructive “tension” was contrived only during the 1990s, and the proposed bill threatens to intensify it.

The futility and dangers of enterprises such as the proposed Basic Law: Israel is the Nation-State of the Jewish People must be stressed. Anthony Smith warned: “the most perplexing feature of investigation into ethnic and national phenomena [is] the curiously simultaneous solidity and insubstantiality of ethnic communities and nations,” and that “it is easier to ‘grasp’ nationalism … than nations.” The purpose of strengthening an identity or a “national character” is in itself an ill-defined and suspicious target, but more importantly the very existence of a cultural debate over the legal definition of a Jewish state endangers Israeli society as it exacerbates divisiveness and creates a distorted picture of cultural opposition between a “Jewish” camp and a supposedly “non-Jewish” (or “less Jewish”) “democratic” or “universal” faction.

It should also be admitted that in spite of its innocent appearance the proposed law in its current form is promoted mainly by specific nationalist and religious groups who believe that Israel has become “too democratic” at the expense of its Jewish identity. According to some politicians and intellectuals who favor the bill, the proposed law is not only a reply to the unjust anti-Semitic attacks on Zionism’s legitimacy, but also a wake-up call to those Israelis who “abandoned Zionism” and forgot “what it means to live in a Jewish state.” Not only do these groups draw a distorted picture of “Judaism” vs. “democracy,” but they do so from a worldview that in practice gives priority to their unsophisticated nationalistic Zionism and narrow conception of Judaism over a richer and more pluralistic, open, and democratic Jewish culture. This is a narrow post-Zionist  worldview, which clearly deviates from the democratic-civic heritage shared by the Zionist movement and Israeli society, and from their longstanding refusal to join the futile and dangerous Jewish cultural dispute.

The desire to strengthen Israel’s Jewish identity stems from an unfounded fear that Jewish culture is in danger. But in fact the opposite is the case: more than six million Jewish Israelis maintain a free, diverse and thriving Jewish culture. They speak, read, and write in Hebrew and conduct rich lives of Jewish-Hebrew art, literature, theater, music, cinema, and popular culture. Roughly 100 Hebrew books are published weekly in Israel: works of reference, prose and poetry, sacred and profane. Never in the history of Jews has there been a Jewish cultural blossoming of such impressive scope and diversity as there is today in Israel. This is true of both secular and religious Jewish cultures. Under these circumstances, the fear for the fate of Jewish-Israeli culture is groundless. Israel is better off without a nation-state law.

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