Too Jewish?
- Moshe Koppel
- Mar 31, 2015
- 6 min read
Moshe Koppel in Defining Israel: A Forum on Recent Attempts to Determine Israel's Character
In 2004 the Knesset’s Committee on Constitution and Law, under the chairmanship of Michael Eitan, held hearings regarding the drafting of a constitution for Israel. Eitan asked me to prepare drafts for a proposed chapter on Israel as a Jewish nation state. The committee members who took the keenest interest in this chapter were the late Rabbi Avraham Ravitz of the haredi (ultra-Orthodox) Yahadut Hatorah Party and Reshef Chen of the anti-haredi Shinui Party.
Despite the somewhat challenging cast of characters, it proved possible to reach a more or less agreed text without as much difficulty as might be expected. The key was to identify those issues where some consensus could be formed, while avoiding controversial ideological pronouncements. When efforts to draft a complete constitution stalled, the Institute for Zionist Strategies, of which I was a member, used the chapter that had been presented to the committee as the basis for a proposed basic law, the bill under discussion here. Member of Knesset (MK) Avi Dichter along with 39 other signatories, including most of the MKs of the centrist Kadima Party and some MKs from parties to the left of Kadima, placed this bill on the Knesset’s table in 2011.
Many people more expert in matters of constitutional law than I am contributed substantively to the draft of the law and the literature surrounding it. Nevertheless, the litany of malign intentions attributed in these pages to the drafters of the bill afford me a rare glimpse into a seamier side of my soul, wherein I suffer from, in Nahum Karlinsky’s felicitous phrase, the “psychological difficulties that colonizers encounter when they face the reality of decolonization.” One lives and learns.
But never mind the pop psychology. Let’s focus on the arguments against the legislation, some made in this forum and other outside of it, which (for tendentious rhetorical purposes) I organize into three pairs of claims.
The bill is unnecessary since its substance is uncontroversial and irrevocably woven into the very fabric of Israeli law and culture. Moreover, it is unjust, redolent of fascism, and must be derailed at all costs.
The bill is unnecessarily concrete, lacking in grand vision and soaring poetry. And, by the way, since judges are masters of creative interpretation, the drafters’ intentions are unlikely to be realized.
The whole idea of nation states is utterly passé. Also, we should be focusing on more urgent matters, such as creating a Palestinian nation state.
The internal contradictions don’t matter, because beneath the high rhetoric there is a single point: the proposed law is, as Jackie Mason would put it, “too Jewish.” Jews have been demoted in the grievance hierarchy; if they insist on claiming for themselves in their state what dozens of other nations have claimed in their states, they should at least do so discreetly and apologetically.
With that off my chest, I move on to the substance. Why do we need this law? Broadly speaking, the law serves two purposes. The first is to provide a sort of mission statement for the state and the second is to fill a specific lacuna in Israel’s legal system.
If we wish to teach our children that Israel is a Jewish nation state, we need to define concretely what that entails. If we wish to demand from others that they live peacefully alongside us however we choose to define ourselves, we ought to flesh out that definition. This definition cannot be achieved in a non-binding declaration; an operational definition must be made explicit in a law with some teeth.
As a mission statement, the proposed law is as careful about what it does not include as what it does include. It is based on the discussions described above and seeks consensus across a broad range of Zionist Jews. There is no mention of the rabbinate and no mention of religious legislation (apart from a bromide giving tradition its due respect). Nor is this bill, as some have insinuated, a foolhardy attempt to “inculcate Jewish identity.” The thought that the state ought to pro-actively inculcate any sort of identity is, in the Israeli case, mainly rooted in the secular socialist utopia for which Israel Bartal apparently hankers.
The drafters of this bill have a more modest goal: the state should serve as a framework in which the majority of citizens already committed to some form of Jewish identity are able to manifest that identity in the public sphere. Specifically, what the bill demands is that this Jewish identity be given expression in Israel’s choice of language, symbols, calendar, immigration policy, and so on. (The fact that Hebrew as Israel’s national language was omitted in one recent version of the bill is, as Alexander Yakobson notes, absurd; the clause should be restored, along with recognition of some status for Arabic.) All these are sufficiently fundamental that they should be anchored in a basic law. In fact, I suspect that most innocent observers of Israel would be surprised to hear that they aren’t already anchored in a basic law.
The second purpose of the law is a more formal matter. Just as judges must adjudicate between conflicting civil and human rights — say, my right to free speech versus your right to privacy, or your freedom of movement versus my property rights — so too they must adjudicate between the collective right of the majority to self-definition and other rights that might conflict with this collective right. This does not mean that being a Jewish nation state is incompatible with being a democracy any more than that free speech is incompatible with the right to privacy; rights and values bump up against each other and from time to time they need to be adjudicated.
Let’s be clear about the terms of the debate. This bill seeks to anchor the Jewish collective right to self-definition alongside other rights already anchored in other basic laws. It does not call for the superiority of this particular right. Israel’s legal system occasionally faces cases in which its special national character, specifically its interest in maintaining a strong Jewish majority, is in tension with other rights. This basic law would require that judges balance Jewish collective rights against the rights of individuals. (This is not the current practice. For example, in cases involving the constitutionality of laws regarding, respectively, family unification and infiltrators, Israel’s interest in maintaining a Jewish majority was neither raised by the state’s attorneys nor considered by the court.) Those who argue in favor of the status quo, in which Israel’s Jewish character is referred to only fleetingly in basic laws and has been rarely invoked in recent jurisprudence, are effectively arguing against the attempt to achieve such balance.
This bill seeks to anchor the Jewish collective right to self-definition alongside other rights already anchored in other basic laws
One note on the phrasing of the proposed law: ambiguity in a law is usually not a virtue, but an invitation. It invites judges to interpret and, often, to exceed their legitimate authority by legislating from the bench. Let us not play pretend. This law was not written in a cultural vacuum: Israel’s judges since Aharon Barak have never resisted an invitation to legislate. The kind of grandiose language that Alexander Yakobson proposes would do more than just invite judicial activism. It would lay out a broad red carpet. “Equality” is an especially irresistible term. Do we care to define it? Are we talking equality of opportunity or equality of outcomes, equality among individuals or equality among collectives? If the national culture suits the majority better than it suits some minority, has equality been achieved? If not, do we wish to give unelected and — due to the nature of the judicial nomination process — essentially self-perpetuating judges carte blanche to remedy that problem against the will of the legislature? For those who wrote this law, the answer is “no” and the language of the law reflects that.
In short, this law is necessary for restoring a lost balance between national rights and individual rights in Israeli law. It is necessary also for the purpose of clarifying to ourselves and to others what we mean — and, no less significantly, what we do not mean — when we assert our right to a Jewish nation state. I am mindful that, even if this bill is not passed any time soon, some of the discussion surrounding the proposal itself contributes to the goal of clarifying what a Jewish nation state is or might be.
