The Nation-State Law: Jewish, democratic and revolutionary
Many say the NationState Law is an unnecessary law because all its clauses are expressed in the Declaration of Independence and are realized, in any case, by the government of Israel: the official language is Hebrew, the official calendar is the Hebrew calendar, accompanied by the Gregorian calendar, Independence Day is an official holiday, Shabbat is the official day of rest, in addition to other sections of the law that exist both in legislation and in case law.
But the Nation-State Law is not superfluous if we change our focus from the text of the law and look at Israeli reality. The president divided Israel into four tribes, spoke of mutual Israeli hope for all sectors, and it sounded great, almost utopian. But the implication is that in today’s reality, the Jewish Nation, for whose sake the state was established, is no longer protected. This lack of protection was what the law came to correct.
Individual and Nation There is great confusion among the public between national rights and the political-civil rights of the individual. Every person, irrespective of religion, ethnic origin or gender, has the right to live with dignity and security, and this is enshrined in the Basic Law: Human Dignity and Liberty. The Jewish people, as a collective, has another right, the right to self-determination as a people in the State of Israel. The rights granted to the people are not the same as the rights granted to the individual, and the rights of the individual are not the same as the rights granted to the people. Therefore, two separate laws must be enacted, and we should add that since the State of Israel is a Jewish state in addition to being a democratic state, these two laws are equal and there is no single value that overrides the other.
Jewish and Democratic
The past president of the Supreme Court, Justice Aharon Barak, described the two values of a Jewish and democratic state in his book, Proportionality Constitutional Rights and their Limitations,
and stated that the two values – Jewish and democratic - go hand in hand. He devoted an extensive chapter to defining the state as a Jewish and democratic state. He examined the concept “democracy” and wrote: “Democracy is not only the rule of the majority; democracy is also the rule of the fundamental values and human rights as established in the constitution. Democracy is a delicate balance between majority rule and the basic values of society that control the majority.”
Then he defined the concept of a “Jewish” state, and basically formulated the Nation-State Law in one paragraph: “The Jewish state is a state to which all Jews have the right to immigrate, and the ingathering of exiles is one of its basic values... whose main language is Hebrew, and whose main holidays reflect its national revival... that Jewish settlement in its fields, cities and settlements is a major priority... that commemorates the memory of the Jews who were slaughtered in the Holocaust... A Jewish state is a country that nurtures Jewish culture, Jewish education and the love of the Jewish people... A Jewish state is a country whose values, the values of the Jewish heritage, are the values of liberty, justice, integrity and peace... A Jewish state is a state where the Sabbath is the day of rest for the Jews living there”.
Barak gave, as an example, the subject of the Law of Return, which has been criticized in the debates on the Nation-State Law: “Is equality, on which democracy is based, compatible with the Law of Return? My answer is in the positive. One aspect of the question is, what is the nature of the state and why was it established? The answer to this question stems from the combination of the state’s Zionist values, the values of its heritage and its democratic values... Therefore, the special key to enter the country is given to the person whose country is his/her national home. This concept is well known and accepted in international law and in relations between democratic states... Another issue relates to how the state acts toward its citizens. Referring to this question, the Zionist, traditional and democratic answer is that the state practices equality among its citizens.”
In other words, the right to immigrate to Israel is under the Law of Return (and it should be noted that the status of those entitled to immigrate to Israel according to the law is not determined by Jewish law). Whoever immigrated to Israel – is entitled to all the same rights and is bound by all the same obligations as the rest of the state’s citizens, without distinction.
Barak then combined the two values – Jewish and democratic – and gave direction to the presiding judge: “The judge as a commentator should seek a combination and accommodation of Jewish values and democratic values... A Jewish state and a democratic state are not opposites, and they can coexist.”
Judicial and Legislative
Revolution
In the Declaration of Independence, the coexistence of the two values was very clear; the very existence of the state was based on a delicate but natural balance between a nation-state and a democratic state. But in hindsight, it seems that it was precisely the same Aharon Barak who sowed the seeds that led the legislator to enact the NationState Law as a Basic Law, precisely now. For the judicial revolution attributed to Barak was not limited to judicial activism, that is, the writing of judgments on issues that until then the High Court of Justice had not intervened in, but also legislative activism. The results of these rulings was what led to the NationState Law. One can find the Knesset’s response to almost every intervention by the Supreme Court in the new law.
It’s true that until today we did not need the Nation-State Law because the core principles of the Declaration of Independence accompanied us as a people and as a state, and its democratic side led us hand in hand with its Jewish side. But the judicial revolution created a deliberate policy of unprecedented involvement in government policy and Knesset legislation such as security issues and rules of engagement, the removal of infiltrators to a third country, family reunification, and the deterrence of terrorist families. These and other examples are issues that do not belong in the Supreme Court (judiciary), but in the realm of political decisions (the executive) based on majority rule (the legislature).
The Supreme Court justices, on their own, strengthened the democratic side of our core values and let go of the Jewish side, and on the democratic side held strongly to the value of human rights but left the principle of majority rule behind. A terrible distortion was created in which individual rights override the rights of the community, including the rights of the Jewish nation. The democratic side became the dominant side, and all the values of the nation remained behind, both in rulings and in legislation.
This was the situation until the Basic Law “Israel - the Nation-State of the Jewish People” set things straight. Israel is the state of the Jewish people, period. It is also a democratic state, for the individual has basic rights and the regime is a democratic one. Minorities that do not belong to the Jewish people are entitled to the same civil-political rights as other citizens, but the values of the Jewish side – Jewish tradition, the ingathering of the exiles, Jerusalem, the Sabbath, the national holidays, the Hebrew language, must not be left behind. The Nation-State Law reconnects both sides – the Jewish side and the democratic side, integrating the various elements, because, [as Barak once said:] “a Jewish state and a democratic state are not opposites, and they can coexist.”
The writer is associate director of The Legal Forum for a Democratic Zionist Israel.