Defining Israel as the Jewish State

By: Yitzhak Klein

Published: May 5th, 2014

Israeli flag flying in Zichron Yaakov, Israel
Photo Credit: Lori Lowenthal Marcus

On Thursday, May 1st, Prime Minister Netanyahu announced his intention to press for the adoption of a “basic law” that would define Israel as a Jewish state.

Even though Israel was founded as a Jewish state—the 1947 UN resolution on the partition of the British mandate describes it as such—Israel has yet to adopt the definition in its own legal code. Tzipi Livni, Netanyahu’s Justice Minister and erstwhile negotiator with the Palestinians, announced she would oppose the law.

The proposed law goes to the heart of the basic issue that divides Israeli society: Is Israel a Jewish state, meant to protect the interests of the Jewish people, or is it a generic-brand democracy in which a lot of Jews happen to live—perhaps like Florida?

The great majority of Israel’s Jews want to live in a Jewish state. For them, Israel is their state, meant to protect what is dear to them. At the same time the great majority of Israel’s Jews want to live in a free country, where every individual’s rights are respected and leaders are elected or dismissed at the ballot box.

As against the majority, a vocal minority insists that to define Israel as a Jewish state, charged with protecting the Jewish people’s interests, is undemocratic by definition.

This week Ha’aretz, Israel’s hard-left daily newspaper, published an editorial arguing that the main purpose of the proposed law was to eliminate Israeli democracy and legitimize “the occupation, the settlement enterprise and the apartheid regime [sic] imposed on the Palestinian population.”

A lot of symbolism is thus involved in the “Jewish State” law’s passage, or defeat. But the law is not just about symbols; it’s about power.

Political power in Israel is divided between two poles. At one pole are the people’s representatives, elected at the polls, who form the Knesset and the government. At the other, are a range of unelected elites who dominate academia, the press, and most significantly the judiciary and the Ministry of Justice.

Unlike the United States, in Israel, judges are appointed by other judges. The people’s elected representatives have little to say about who sits on the bench. For the last 30 years the judiciary and Justice Ministry have been dominated by Israel’s wealthy, secular, liberal left-wing elite. They are a bastion of those who believe that Jewish identity is, at best, a private matter for individual citizens. The believe the state of the Jews should not be defined as either Zionist or Jewish. As a rule of thumb, Israel’s secular left-wing elites lose at the polls but win in the courts, which usually have the last word.

In 1992, the Knesset passed a civil rights law, the “Basic Law on Human Dignity and Freedom.” The courts have interpreted “human dignity and freedom” to mean “liberalism,” usually in the sense of “not Zionism.” The courts have stymied policies approved by the Knesset and government that do not fit the judiciary’s liberal agenda. Right wing politicians such as MK Yariv Levin, chairman of Netanyahu’s Knesset coalition, accuse the judiciary of working consistently to weaken Zionism in Israel.

The proposed new law is meant to even the balance a little. By formally defining Israel as the Jewish state, and defining the Land of Israel as the Jewish homeland, supporters of the law hope to make it hard for the courts to rule against policies rooted in the Zionist idea—from using public land to create communities for Jews to upholding the Law of Return. Furthermore, while the judiciary has traditionally been dominated by Israel’s secular left-wing elite, this dominion has been weakened of late.

Israel’s Supreme Court now has a few junior judges of a conservative bent—conservative not only in their philosophy, but in their view of how the courts should respect elected representatives’ authority to decide public policy. Proponents of the law hope that eventually judges such as Neal Hendel and Noam Solberg will use the “Jewish State” law as a tool to reverse some of the Supreme Court decisions of the past generation.

Proponents of the law thus view it not as a threat to democracy but essential to Israeli democracy: The great majority of Israel’s citizens want to live in a Jewish state that defends Zionism and Jewish national interests. The proposed law will help ensure that what the people believe and vote for at the polls is what their government actually does, and is not stymied by a judicial elite that exercises power without accountability.

Prime Minister Binyamin Netanyahu has been noted for his unwillingness to challenge the power and prerogatives of Israel’s judicial elites. His embrace of the “Jewish State” law marks the first time in a long while that he has taken a position to which that elite must be bitterly opposed.

For the last two months, Netanyahu has been arguing that it is essential that the Palestinians recognize Israel as the Jewish state. People whose opinion he respects have been lobbying him over the law: How can Israel insist that the Palestinians recognize the country as the Jewish state while hesitating to adopt that definition itself? The logic in that argument seems to have appealed to Netanyahu. He may also have a tactical objective in mind, connected to renewing negotiations with the Palestinians: If Israel defines itself as a Jewish state, perhaps he can get away with insisting that the Palestinians simply recognize “the State of Israel,” letting them skirt the “J” word . . .

What is a “Basic Law?”

Israel has no formal, written constitution. Since 1949, no Knesset has been able to write a constitution that could command a consensus. Instead, a series of “basic” laws were passed to codify essential subjects such as the authority of the Knesset, the government, the courts, and other matters. It bears emphasizing that “basic laws” were originally passed with the intention that they not possess the authority of constitutional legislation; the Knesset could change them at any time.

In 2002, Israel’s Supreme Court decided, without a shred of authorization by the Knesset, that all existing “basic laws” were in fact constitutional legislation, and that the courts could use them to strike down other legislation by the Knesset. This was an excellent example of what the first Knesset hoped to avoid, as well as of the contempt in which the Supreme Court tends to hold Israel’s legislature.

Basic Laws must be passed by the Knesset with a majority of 61 of 120 Knesset members; a simple 55-45 majority would be insufficient. Once passed, they enjoy priority over ordinary legislation—assuming the courts deign to enforce them.