Israel’s Nation-State Law

Key contentious issues

Although some stipulations in the law are new, many of the regulations can already be found in existing laws. However, these regulations now have constitutional status. Many aspects have a purely declarative char­acter. For example, the law regulates state symbols (flag, national anthem, coats of arms), calendars (Hebrew and Gregorian) as well as public holidays and rest days. In ad­di­tion, it confirms current practice, such as immigration opportunities for all Jews and the state’s strong connection to the Jew­ish diaspora in general. It also affirms the status of the whole of Jerusalem as the state’s capi­tal, although this was already enshrined in a separate Basic Law in 1980. That the law continues to court fierce con­troversy, is essentially due to four contentious issues.

The political intention behind the law

Beyond the specific passages discussed, the law has a deeper thrust that goes further than the wording of the text. In essence, it is about whether the state should be characterised by a civil nationalism that em­phasises universal principles, such as equali­ty or individual values and freedoms, or by a nationalism that emphasises par­ticu­lar collective rights that are ethnically, nationalistically or religiously justified. Proponents of the law adhere to the latter. In their eyes, the law is a tool to move the state in that direction.

In doing so, the nation-state law is di­rected, in particular, against the “Basic Law: Human Dignity and Liberty” from 1992. It codified, for the first time, individual basic rights, human rights and freedoms into basic law and also stipulated that the state of Israel was Jewish and democratic. This had far-reaching consequences because this law allowed judicial review complaints against legislative decisions made by the Knesset to be put before the Supreme Court. This is why this unprecedented amendment is commonly referred to as the ‘constitu­tional revolution’ in Israel.

However, these far-reaching developments on the part of the judiciary are controversial for various reasons. Firstly, the possibility of a judicial review was only brought about by a ruling from the Su­preme Court, similar to what happened historically in the US. However, since this was not intended by the Knesset legislation, opponents see this as an illegitimate infil­tration of popular sovereignty by the judi­ciary. Secondly, President of the Supreme Court, Aharon Barak, argued that the word “Jewish” in the phrase ‘Jewish and demo­cratic’ by no means refers to religious tra­dition. Rather, it merely emphasises the uni­versal values of the Jewish Enlightenment. Barak had, therefore, at a stroke defined the Jewish character of the state without any social consensus. Thirdly, Barak is accused of having established judicial actionism in the wake of the constitutional revolution, under the premise that everything is justi­ciable, which interferes too much with the interests of the executive and legislative branches. In so doing, the Court is alleged to have established case law that is too liberal and too targeted at individual rights. As a result, minority interests would be given preference over majority interests.

The real intention of proponents of the nation-state law is probably to reverse these developments. The main protagonists here are the Likud and Jewish Home parties who have managed to assert themselves against critics of the law within their own govern­ment – in particular, the ultra-Orthodox parties and Kulanu. As Ayelet Shaked ex­plained, “the constitutional revolution has emptied the idea of a Jewish state of its content” and “radically sanctioned individ­ual rights”. The Minister of Justice called for a moral and political revolution to reverse the problematic trend that had destroyed the achievements of Zionism. Similarly, Likud politician Yariv Levin argued that the law would reverse the consequences of the constitutional revolution and establish new legal foundations and a new state identity.

Specifically, this is directed against Supreme Court rulings over the last two decades which have given precedence to individual rights and freedoms over major­ity rights. These include repeatedly over­turning Knesset-imposed disqualifications of Arab parties calling for a “state for all citizens”; the ruling on maintaining family reunification of Palestinians in the West Bank and Israel; the ban on detaining refu­gees; the evacuation of ‘outposts’ of Jewish settlers in the West Bank; as well as the priority given to freedom of expression and art in relation to public outrage over, for example, the film “Jenin, Jenin” and pro­hibiting the prioritisation of expanding and maintaining exclusively Jewish over non-Jewish settlements (as in the Kaadan case). According to right-wing politicians, all these – and other – judgments were based on an incorrect evaluation of norms; in their view, the Supreme Court should have ruled in an opposite manner in all these cases.

It is clear to the initiators of the nation-state law that this can only be a first step towards fully implementing desired changes in the state – which are already evident in education, the military and cultural policy, because how the law is interpreted depends on the respective judges at the Supreme Court. Yariv Levin said, “Its major test will be in its application”; a change in the legal system will only ultimately be possible if the composition of the court is also changed. The government has already reformed the election of judges and awarded four of the six judicial posts to be filled in this legis­lative period to decidedly conservative can­didates. This is flanked by political initia­tives, such as the adoption of an “Override Clause” (Piskat HaHitgabrut), through which the Knesset can overturn judgments made by the Supreme Court. A similar clause was included in a previous draft of the nation-state law, but was ultimately removed due to lack of majority support: It would have meant that any jurisprudence in Israel – including other Basic Laws – would have to be inter­preted through the prism of the nation-state law and therefore be subordinate to the Jewish character.

However, the right-wing conservative thinkers in Likud and the Jewish Home are not just concerned with the end of ‘liberal supremacy’ in the legal system. In the long term, they are aiming to develop a new under­standing of the state, according to which the common good is determined in favour of the collective (albeit with liberal economic influences). The protagonists see themselves as having the responsibility to define the constitutional foundations of the common good according to national, ethnic and/or religious principles. This vision ex­plicitly contradicts both secular-socialist Worker Zionism from the first decades of the state as well as the liberal-universalist legal interpretation from the 1990s and even the national-liberal principles of the ideological founding fathers of Likud, such as Zeev Jabotinsky and Menachem Begin.

Adopting the nation-state law is clearly an attempt to lead the political system of Israel in a majoritarian direction. Individual minority rights, protected by constitutional paragraphs and separation of powers, are to be restricted by Jewish majorities in the Knesset. Israel’s current government is join­ing political currents similar to those in Hungary, Poland, Slovakia and elsewhere, where illiberal and ethno-national politics are practiced on behalf of the majority. This policy is justified as being a fight against an elitist liberal minority that is imposing its universalist view of the world on the major­ity. Netanyahu’s recent statement that “the majority have rights too, and the majority rules” is typical of such a populist approach. According to this logic, these advances by the political right are also passed off as a commitment to more democracy.

Initiatives aimed at weakening the legal status of minorities are accompanied by a rhetoric that increasingly portrays the Arab-Palestinian community, as well as leftist Israelis, as an unwanted part of society. Netan­yahu has insinuated that the coun­try’s Arab population is a fifth column, an internal enemy. This is again emphasized in the campaigns for the municipal elec­tions of October 2018, where the Likud ad­vertises it is either “us or them”; insinuat­ing voting for left or Arab parties will lead to Islamic terrorism. In a similar mind set, Minister of Culture, Miri Regev, has called for loyalty tests and Israel Beitenu for oaths of allegiance from members of non-Jewish minorities. Simultaneously, there are ef­forts to limit the visibility of Arab-Palestin­ian culture. Minister of Education, Naftali Bennet, removed a short story called Bor­der­life from the education syllabus because it contains a Jewish-Arab romance. Defense Minister, Avigdor Lieberman, demanded that poems by award-winning Palestinian national poet, Mahmoud Darwish, be banned from Army Radio. Several members of the government have introduced bills to restrict or prohibit the use of loudspeakers for Muslim calls to prayer.

At the same time, the nation-state law has not only been adopted for ideological reasons, but also as an election tactic. Prime Minister Netanyahu is clearly benefiting from the increased social polarisation this law is causing. Firstly, he can portray his own opponents as unpatriotic, highlighting the contrast between right and left. Secondly, the law has weakened the opposition be­cause it has accentuated the differences between its Jewish and Arab critics. In this respect, launching the law was also a po­litical move by Netanyahu along the lines of divide and rule.

Outlook

To what extent the law will be upheld by the Supreme Court remains to be seen. In Israel, the question as to whether there can be a so-called “unconstitutional constitution­al amendment” i.e. whether the Supreme Court can also rule on a constitutional amend­ment, remains unresolved. A judg­ment on this issue would create a precedent. The Supreme Court has already filed lawsuits against the nation-state law. In this context, Ayelet Shaked has said that repeal­ing the law would amount to an “earth­quake” and would lead to a “war” between the institutions. The Supreme Court has yet to comment on this case. However, in pre­vious judgments, president Esther Hayut has suggested that a constitutional review could also be carried out on a basic law where it un­­dermines Israel’s democratic identity and the foundations of its consti­tutional struc­ture.

From a German and European point of view, it is important to note that, despite all the national and international criticism, the law does not mean the end of Israeli democ­racy. However, the current government’s efforts to transform Israel from a liberal democracy (which was limited anyway) to a majoritarian democracy are clearly visible.

The decisive factor will be how the law is implemented in legal practice. Three re­quire­ments are particularly important here: maintaining the separation of powers, en­title­ment of all citizens to equality before the law and protecting minorities against discrimination. Should – as critics of the law fear – minorities become second-class citizens in legal practice, the “Jewish and democratic state” project threatens to run into even greater difficulties. It is, therefore, more important than ever to maintain a per­manent dialogue with Israel, referencing the various agreements the country has with the EU, on the basis of which the observance of human rights and democratic standards were established. Indeed, by adopting this law, Israel is joining the ranks of states that are increasingly turning away from the prin­ciples of liberal democracy established in the post-war West. However, supporters of the law – including Netan­yahu – often argue that the law lies within the framework of the principles of ‘Western democra­cies’. In this respect, it is also important to them that Israel is internationally perceived as a democratic state belonging to the West.