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Bill Of Wrongs

Bill Of Wrongs

The nation-state legislation and the threat to Israel’s democratic values.

Contributing Editor, The NY Jewish Week

The meltdown in Israeli politics continues, with deep divisions over the most controversial bill in recent years. And if you’re confused by the legislation, you’re not alone — in fact, it is the confusion that is making the debate so unproductive.

The lawmakers behind the legislation are calling it the Jewish nation-state bill. After all, they imply, what is controversial about reiterating in Israel’s quasi-constitutional Basic Laws the very characteristic of the State of Israel that led Zionist pioneers to establish it?

Internationally, and in the Arab World in particular, this same headline of “The Jewish State Bill,” rings alarm bells and sets of a web of assumptions about what Israeli politicians are trying to do — much of which is false.

Neither of these parties has an interest in delving into the details, which is where the significance of the bill lies, and so to a large extent the discussion gets stuck, with those who want some easy point-scoring as Zionist heroes, and those who want some easy point-scoring for attacking these self-appointed Zionist heroes.

In reality, there is too much disparate material making its way into a single bill, some of it suitable for this legislative path and some of it unsuitable. The combo deal is a disaster. What is needed is some cool-headed deconstruction.

First, the headline. There is nothing wrong with asserting Israel’s identity as the Jewish nation-state in the country’s Basic Laws. In fact, there is a school of thought that this could even be good for the prospects of peace with the Palestinians.

A fear exists among Israelis that the Palestinian refusal to recognize the Jewishness of Israel could leave Palestinians both with a state of their own via negotiations and a license to later challenge Israel’s Jewish status. Given that any Palestinian leader will struggle to retain credibility while affirming Israel’s Jewishness, goes the train of thought, the Knesset can do it for him. The idea is that by enshrining Israel’s Jewishness in a Basic Law, this is considered understood in any peace agreement — outlined in the small print, without a Palestinian leader needing to write the small print.

The second big piece of this law relates to the Israeli courts and judges’ decision-making processes. The Israeli right feels that the legal system, and in particular the Supreme Court, has become a stronghold off the left wing. It is furious that the high court strikes down laws that it deems in violation of equality or democracy — claiming that the justices push these values too hard in order to advance a leftist agenda and undermine the right’s power in Knesset by undermining its laws in court. The most recent example is the court’s nullification of the law allowing Israel to detain illegal immigrants for long periods.

The current bill tries to weaken the legal basis for so-called leftist judgments by bolstering the basis for the kind of judgments that the right wants to see. And it does this by trying to increase the significance that the Jewish character of Israel should take in legal decisions.

There are ways of discussing and deciding what role Israel’s courts should take and how they should make decisions without purloining the Jewish state idea and making it a tool for one side of the argument to get what it wants.

Two years ago, there was an attempt among some right-leaning lawmakers to pass a law to reign in the Supreme Court. The idea was that 65 of the Knesset’s 120 lawmakers would be able to revive any law that the Supreme Court throws out as illegal. I don’t think it was a good idea — but at least it was a respectable move to bring about a change without doing so under cover of Israel’s Jewish identity.                                             

Politicians should feel free to try to change Israel’s legal system. And yes, the Jewish character of the state can play a part in the courts and provide inspiration to judges. But efforts to change the way that Supreme Court decisions are made under the banner of a Jewish nation-state bill, and use Jewish as a byword for less liberal, are disingenuous.

There is a lot of focus on what this bill would mean for Israel’s Arab minority, but I also ask: What does it do to us? What does it do to the image of Jewish values to hijack them and use them to play off against democratic values? The harm being done here is not just to minorities, but to the reputation of Jewish values. Ironically, this is being done by those who profess to want to boost Jewish values in the state — but by exploiting them in this way and barricading them in their own political mindset, they will only alienate people from them.

The third major component of the bill is to immediately give license to certain practices that courts have rejected or clearly would reject if confronted with them. They include placing Jewish locales in strategic locations, and permitting Jewish-only neighborhoods and villages.

The right is upping the stakes on these issues by mixing them in with a bill that deals with the broad character of Israel. The claim by people behind the bill is that these planning issues are integral to Israel’s Jewish identity because settling Jews — together and in strategic locations — was the very basis of Zionism. They say that the fact that the Supreme Court won’t still allow this to happen today, along the lines that became established during the pre-state period, is an insult to Zionism.

Zionists are no longer battling to establish a state — the state is six-and-a-half decades old. But, the argument of the nation-state bill lobby demands that, as Israel struggles to convince people internationally that the concept of a Jewish state isn’t discriminatory, it should reinstitute practices that Israel’s own Supreme Court rejects as discriminatory, and define them as an integral part of what it means for the state to be Jewish.

If Chelm did hasbarah it would sound like this.

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