Who Needs the Nation-State Law? The State of the Jews, Fears, and Fear Mongering – By Israel Bartal

Israel Bartal February 23, 2015 0

Israel Bartal in Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character

[This essay is part of Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character. The forum’s home page can be found here.]

Who Needs the Nation-State Law? The State of the Jews, Fears, and Fear Mongering

BartalI am a proud Israeli patriot. I was born in a Tel-Aviv suburb less than two years before David Ben-Gurion announced the establishment of the State of Israel in the city’s museum building. My earliest childhood memory is from the day after the Declaration of Independence was proclaimed, the day the Egyptian air force bombed the city. I remember looking at the big fire that erupted at the factory just a few hundred meters west of my parents’ house. Every time I recall sentences from Israel’s Declaration of Independence, the discordant din of airplane engines mixed with the sound of explosions and the screaming of air-raid sirens echoes in my ears.

I was born in Mandatory Palestine to parents that escaped pre-Holocaust Eastern Europe in the nick of time, and I grew up in the tumult of wars, in the democratic State of Israel. Perhaps due to this foundational experience, I viewed the Declaration of Independence as an appropriate response — as did many of my peers — to the violent resistance of the neighboring regimes to the establishment of a state in which the children of the ethnic-religious group to which we were born would realize their right to self-determination. And indeed, the Declaration of Independence explicitly refers to the battle for the home that the small Jewish community found itself in at the time of its formulation, while simultaneously and explicitly declaring a universalistic political-social vision in which “Judaism” and “democracy” are one and the same:

We appeal — in the very midst of the onslaught launched against us now for months — to the Arab inhabitants of the State of Israel to preserve peace and participate in the up building of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.

We extend our hand to all neighboring states and their peoples in an offer of peace and good neighborliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.

For many of my generation, the first native-born generation, this text was a source of pride due to its wonderful blending of the best universal concepts of equality, liberty, and progress with the explicit, unequivocal stance regarding the right of our ethnic-religious group to live its own life, and sustain its cultures, in a state of its own. As the years went by, I became a historian, researching the annals of Jewish nationalism. I learned to identify the multifaceted nature of this foundational text, and I was exposed to the gap between its promise and the political, social, and cultural reality created in the State of Israel. Yet, I never would have thought that one day someone would come and try to violate – using arguments of bolstering national resilience, no less — the brilliant balance between “nationalism” and “democracy” bequeathed to us for all generations, by the founding fathers of the State of Israel.

The Nation-State Law as a Political Means to Undermine the Supreme Court’s Standing

In the past decade, radical nationalist trends in Israeli society have grown stronger, trends that testify to the insecurity of their bearers and disclose an increasing disconnection (to the point of outright denial) of the historic Zionist discourse. Worst of all, these trends demonstrate a historical misunderstanding of the heterogeneous character of Israeli society. One of the prominent manifestations of this radicalism is expressed in the struggle of a group of politicians against the authority of the Israeli legal system. In the stormy parliamentary politics of Israel’s capital, Jerusalem, the nation-state law, in its various forms, is a tool in the hands of its proponents against the Supreme Court. The member of Knesset officially at the head of the ruling coalition, Yariv Levin, stated this explicitly:

The State of Israel is a Jewish country in which there is a democratic regime, not a country that belongs to all its citizens and infiltrators [meaning immigrants from Africa] and in which there exists, at its margins, Jewish life. This fundamental principle upon which the State of Israel was established is being eroded at an ever-swifter pace by the rulings of the Supreme Court, and therefore it is necessary to halt this post-Zionist process and anchor the state’s basic identity and values in a basic law.

Here, a prominent political leader presents the Supreme Court as the enemy of the State of Israel’s Jewish character leading a “post-Zionist process” (in the political discourse of the radical Israeli right, “post-Zionist” is the accepted code for “anti-Israel”). According to Levin, a respected member of Knesset, “Judaism” and “democracy” are not two concepts that function as one, as intended in the formulation agreed upon by those who signed Israel’s Declaration of Independence, but two separate and distinct systems, whereby the rise of one necessarily comes at the expense of the other. Consequently, whoever wishes to protect Judaism must engage its great enemy: the Supreme Court that supports the democratic system. This approach on the part of Levin also ignores another fundamental issue characterizing the Declaration of Independence: the historicization of the Jewish people. The Declaration says,

The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious, and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.

Accordingly, this is an in-gathering of people with a historical connection to the land due to its history and not due to any religious beliefs, patterns of behavior, or symbols. The Jewish nation, according to the signers of the Declaration, created cultural assets in a historical process, and was hence shaped by history. The text does not define what “Judaism” is, but rather talks about what Jews share! But Levin, like his partners subverting the Declaration of Independence, in contrast speaks of the state’s “Jewish identity” and of “Jewish values”; abstractions that have nothing to do with the secular, manifestly Zionist discourse, which was accepted by Orthodox and atheists alike.

these trends demonstrate a historical misunderstanding of the heterogeneous character of Israeli society

Note that the Declaration speaks of a “Hebrew Community” in Israel, not a “Jewish community.” That same “Hebrew Community” was created, according to the text of the Declaration of Independence, through the connection of a “nation” without a state to the land with which it has an historic affiliation, and in which it created something totally new, revolutionary, and unprecedented:

In the Second World War, the Hebrew Community [in the Hebrew original: Ha‘Yishuv Ha‘Ivri] community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort.

In recent decades they returned in their masses. Pioneers, defiant returnees, and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood.

Studying the various versions of the nation-state law proposed over the past two years demonstrates the continued centrality of the balanced, harmonious text produced by the signers of the Declaration. In the more moderate versions, such as that put forward by Ruth Calderon and others (see P/19/1539), suggestions were made to anchor in special legislation what has already been written and agreed upon in the Declaration of Independence on May 14, 1948, as if there is an imminent threat to the validity of the Declaration of Independence.

The most radical of the new versions of the basic law proposals titled, “Israel is the Nation Sate of the Jewish People,” include a position that actually expresses reservations regarding several assertions in the foundational text of the State of Israel. Some of these have already been set in the basic laws  promulgated by the Israeli parliament (such as Basic Law: Human Dignity and Government [1992] and Basic Law: Freedom of Occupation [1992, amended 1994]), and interpreted by the Supreme Court as having legal significance.

From a historical perspective, the recent, obsessive engagement of Knesset members with drafting a nation-state law seems like another obvious manifestation of the anti-Zionist character of the Israeli extreme-nationalist camp, which managed to create the current government with a slim majority.

Fears and Fear Mongering in the Service of the Nation-State Bill        

The elites in the Israel that I grew up in did not project fear, weakness, and discombobulation. On the contrary, the political leaders of the slightly more than half a million Israelis, who confronted a simultaneous attack of multiple invading armies that threatened their very existence, did not wail or cry out of fear, even when the Egyptian Army bombed Tel-Aviv, or when the isolated Jewish villages in Gush-Etzion in the Judean Mountains fell to the enemy.

They also did not search for internal enemies to blame for the external dangers. The first Israelis did not require daily scare-mongering operations on the part of their prime minister in order to remind them that they face an existential threat. I do not recall David Ben-Gurion ever speaking in the whining tones of Benjamin Netanyahu, even in the most difficult and bitter times. The complaining style reveals, to anyone with eyes in her head, that something important has been lost in the Israeli political camp that calls itself “national”: the simple confidence in our actual presence as Jewish-Israelis in the land.

The insecurity and the use of grievance and fear for political purposes — when Israel currently has the largest Jewish population in the world, numbering over six million Jews, economically thriving and militarily strong — are what stand behind the legislative attempts made against imagined threats from internal enemies that do not exist.

something important has been lost in the Israeli political camp that calls itself “national”: the simple confidence in our actual presence as Jewish-Israelis in the land

Let’s go back, for instance, to the words of Yariv Levin, who speaks of the threat of African immigrants marginalizing Jewish life in Israel. Instead of solving an administrative problem (affecting Tel-Aviv in particular), the lawmaker suggests anchoring in a basic law the superiority of the state’s “Jewish character” over its “democratic character.”

Paradoxically, the nationalistic, radical right striving to base the Zionist vision currently being realized on fears and fear mongering, (and familiarly, since radical right-wing political movements historically have depended mostly on fear to ensure their existence), is undermining everything that Zionism represents for us as a country.

Why Must the Declaration of Independence Suffice as a Constitutive Basic Principle?

The foundational document read by David Ben-Gurion in the declaration ceremony on May 14, 1948 was a consensual text signed by the representatives of various political factions in the Yishuv (the pre-state Jewish community in Palestine), Zionist and non-Zionist alike (the signers even included the anti-Zionist communist, Meir Vilner, and the representatives of the non-Zionist ultra-Orthodox).

For many years, no one questioned the status of this foundational document, suggested changing it, or demanded revoking in some way the legitimacy of even one sentence in the Declaration. Furthermore, the Declaration of Independence was granted legal standing when the Israeli legal system was still in its infancy. In the well-known Supreme Court ruling from 1953, Supreme Court Justice Shimon Agranat wrote the following:

The system of rules according to which the political institutions in Israel have been established and operate demonstrate that this is indeed a state based on democratic foundations. Additionally, the statements made in the Declaration of Independence — and especially regarding the State being based on “the principles of freedom” and the guarantee of freedom of conscience — mean that Israel is a state that advocates freedom. Indeed, the Declaration is not a constitutional law that effectively rules for the enactment of various orders and laws or their annulment, but to the extent that it expresses the “vision of the nation and its credo’ […] it is our duty to pay attention to the statements declared within it, when we attempt to interpret and give meaning to the laws of the state […] after all it is a well-known axiom that a nation’s law must be studied from the point of view of its system of national life.

In the following forty years, the Supreme Court repeatedly reaffirmed this ruling, which accepted the Declaration of Independence as a tool for legal interpretation. This foundational text was also granted actual constitutive standing in the 1990s following the promulgation of the two basic laws on Human Dignity and Liberty, and Freedom of Occupation. Thus, Supreme Court Justice Dov Levin wrote in a ruling from 1994:

The Declaration of Independence has become a basic, binding constitutional principle. The purpose of the basic Laws has also been clearly defined and are legally-constitutionally in force to “anchor in a basic law the values of the State of Israel as a Jewish and democratic state” […] this court has seen fit from its first days to be guided by the principles and values of the Declaration of Independence as an interpretive source for the law, as a stave to which basic protected rights can be attached. These basic laws came and created a dramatic change in the status of the Declaration of Independence, in that it is no longer an interpretative source, but rather constitutes itself an independent source of human rights, since the Israeli legislature in promulgating the basic law […] aimed to provide the Israeli citizen with a civil rights charter at the constitutional supra-constitutional level.

The power of the State of Israel’s founding text — which demonstrates the wonderful political talent of its formulators — lay in its ability to bring representatives of the entire range of opinions in the Jewish Yishuv to affirm it. This was no small feat, considering that the manuscript bears the names of people from the radical non-Zionist Left and socialist-Zionists, alongside activists from the right-wing Revisionists and the representatives of the non-Zionist and anti-Zionist ultra-Orthodox parties.

The opinions of the signers (all male, except for Golda Meirson [later Meir]) were at various extremes from each other, and many of their visions regarding the form and character of the State of the Jews were at odds. Indeed, those who had reservations about this or that deficiency in the Declaration took care to submit their opinions in writing.

Reading their documented reservations we must wonder: if they had insisted that the Declaration’s final wording represent their various political views, would we have had the privilege of witnessing the declaration of the state at all? The great compromise put together by the representatives of the various factions was a great and unique historical achievement. It is difficult to imagine the nationalist-messianic right who support the nation-state law fully understanding the achievement and its significance.

This compromise succeeded in presenting harmony between “Jewish values” and democratic ones. Furthermore, the values of democracy are derived from, according to the wording of the Declaration, Jewish tradition. They rely on the vision of the prophets of Israel. And, as mentioned above, the Declaration presents, in straightforward language and without any reservations whatsoever, a commitment to universal and egalitarian values. This, written and declared while in the midst of a war between the various religious-ethnic groups that would later constitute the civil society in the State of Israel.

The classic Zionist texts should be inserted into the public discussion regarding the nation-state laws. Studying the essential material from the beginning of the “Hibbat Zion” movement in the Russian Empire, to the Declaration of the State of Israel on May 14, 1948, would demonstrate just how far many of the politicians, who for some reason are called “nationalists,” have strayed from the vision of the founding fathers and their precursors. This would not be an easy task, if only because Israeli politicians do not frequently cite the writings of Herzl and Jabotinsky.

Finally, the turbulent struggle between the supporters of the right-wing versions of the nation-state law and their opponents is by no means a confrontation between Zionists and anti-Zionists (which is how the spokespersons for the Israeli nationalist right seek to portray it). Rather, this is a confrontation between the supporters of classic Zionism at its best — those who view the Declaration of Independence as an exemplary Jewish-Zionist achievement and a milestone in the annals of world democracy (even if the word “democracy” isn’t mentioned in the Declaration’s text!) — and those who have forgotten, or perhaps never knew, what Zionism is.

[Go to the next essay in the forum by Nahum Karlinsky, “Double Decolonization and the Loss of Hegemony”]

[Go to the previous essay in the forum by Alexander Yakobson, “A Manual on How Not to Write a Constitution”]