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Editor’s Note: Read two perspectives on Israel’s recently passed nation-state law. The JN welcomes
your thoughts as well. Please send letters, no more than 300 words, to letters@renmedia.us.
point
counterpoint
Why A Former IDF Intelligence Chief
Stands With The Druze Over New Law
Critics Of Nation-State Law Misunderstand
Israel’s Quasi-Constitutional System
I
I
adversaries, who are already predis-
srael’s new “nation-state” law, which
posed to single out Israel in the interna-
is widely viewed here as clumsy,
tional arena.
unnecessary and unwise, must be
The law must be amended in
amended. That’s why I was proud to join
ways that align it fully with Israel’s
tens of thousands of Israelis recently in
Declaration of Independence,
a peaceful, unifying protest led
which states that the country
by the Druze community.
“will ensure complete equality of
I came to this city’s Rabin
social and political rights to all
Square to stand with the
its inhabitants irrespective of reli-
Druze, with whom I fought
gion, race or sex; it will guarantee
to protect the State of Israel.
freedom of religion, conscience,
But I also came to celebrate
language, education and culture.”
Israeli democracy; the pub-
Article 4 must be amended to
lic’s commitment to equality
Amos Yadlin
restore the standing of Arabic
and democratic values; our
as one of the state’s official lan-
independent media; and our
guages.
country’s bedrock guarantees
Although the focus of less
for free speech and the right to
protest.
attention, Article 6, which deals
It was a quiet, dignified rally, with rep- with ties between Israel and world
resentation from across our diverse soci- Jewry, should also be amended to under-
line the strategic value of these relations
ety. In contrast to the ill-advised vote
and to enshrine the principles of part-
in the parliament, the rally displayed
nership, peoplehood
“Israeliness” at its best. Israeli flags flut-
and unity.
tered in the square and everyone sang
An amended law
“Hatikvah,” our national anthem, at the
should be passed
end of the rally.
by a larger majority
As the initial storm over the new law
in the Knesset and should be written in
subsides, any level-headed assessment
flexible and broad terms that reflect the
reveals that its principal damage has
been to stir up negative public discourse dynamic nature of Israeli society.
But the sky is not falling. Israel’s
— in Israel and abroad. But make no
democratic character is safeguarded
mistake: The Jewish state’s democratic
through myriad, overlapping mecha-
foundations remain vigorous, deeply
rooted and incredibly resilient.
nisms, including a wide body of quasi-
constitutional legislation, an indepen-
The law touches on sensitive issues
that David Ben-Gurion and the founders dent judiciary, a vibrant civil society and
one of the world’s most free-wheeling
preferred not to decide. These matters
media sectors.
require time, sensitivity and the broad-
Moreover, Israeli democracy is resil-
est possible consensus. They cannot be
ient and has flourished despite our
decided haphazardly, especially hours
country’s long and intense struggle
before a parliamentary recess, and they
most certainly should not be decided by for security and peace. Far lesser secu-
rity and political challenges have seri-
the barest of majorities (in this case, 62
ously damaged democratic life in other
Knesset members voted in favor and 55
countries, Turkey being just the latest
opposed).
example.
The new law does not go far enough
Democracy has many models. The
in protecting minority rights and
United Kingdom, a well-established
upholding the principle of “equality” of
all citizens, although this is enshrined in democracy, lacks a written constitution.
The U.S. has just two political parties
other legal tenets.
and winner-take-all elections. Israel,
Due to these flaws, the new law does
unique among democracies, has a low
not command legitimacy. It stirs nega-
electoral threshold and rules that allow
tive emotions and polarizes the public
even the narrowest of constituencies to
debate. It alienates parts of the Arab
gain representation in national politics.
sector and has strained the special
Over many decades, Israel built up
bond with the Druze community, which
a body of quasi-constitutional law that
serves in the Israeli military. Moreover,
judiciously reinforced and routinized
the law has damaged ties with the
Jewish diaspora, especially in the United the country’s democratic institutions.
The supporters of the new law argued
States, which Israel can ill afford.
that it was time to further enshrine the
In a world increasingly defined by
state’s Jewish character, and this set
images, the new law creates bad optics
off an unfortunate competition among
and plays into the hands of Israel’s
srael’s new nation-state law has elicit- dignity,” as well as specific protections
ed a storm of criticism since it passed for liberty, property and privacy. Though
the law doesn’t mention “equality” or
on July 19. Some of this criticism is
“minority rights,” the courts have consis-
justified; a law that manages to unite
tently interpreted it as barring discrimi-
virtually the entire Druze community
nation on the eminently reason-
against it, despite this com-
able grounds that discrimination
munity’s longstanding support
fundamentally violates a person’s
for Israel as a Jewish state in
dignity (the one exception, which
principle, clearly wasn’t drafted
all legal systems make, is if dis-
with sufficient care, as even
crimination has pertinent cause,
the heads of two parties that
like barring pedophiles from
backed the law (Jewish Home’s
teaching).
Naftali Bennett and Kulanu’s
Granted, there are things this
Moshe Kahlon) now admit.
law can’t do, such as breaking
Nevertheless, much of the criti- Evelyn Gordon
the rabbinate’s monopoly on
cism stems from a fundamen- JNS.org
marriage and divorce, because
tal misunderstanding of Israel’s
it explicitly grandfathers all pre-
constitutional system.
existing legislation. But it applies
Israel doesn’t have a con-
to all legislation passed after 1992.
stitution. What it has is a series of Basic
Thus, to argue that the nation-state
Laws to which the Supreme Court uni-
law is undemocratic because it doesn’t
laterally accorded constitutional status.
mention equality or minority rights is
Many people, myself included, disagree
like arguing that the U.S. Constitution
with that decision,
is undemocratic because Articles I and
inter alia because
II confer broad powers on the legisla-
constitutional
ture and executive without mentioning
legislation should
the protections enshrined in the Bill of
reflect a broad
Rights. Everyone understands that the
consensus, whereas many Basic Laws
Constitution’s provisions on governmen-
were approved by only narrow majori-
tal power aren’t supposed to be read in
ties or even minorities of the Knesset.
isolation, but in concert with the first 10
Nevertheless, both sides in this dispute
amendments, so there’s no need to reit-
agree on one thing: Each Basic Law is
erate those rights in every other article.
merely one article in Israel’s constitu-
Similarly, the nation-state law isn’t
tion or constitution-to-be. They cannot
meant to be read in isolation, but only in
be read in isolation, but only as part of a
concert with other Basic Laws enshrin-
greater whole.
ing Israel’s democratic system and basic
human rights. Thus, there’s no reason for
BOTTOM OF FORM
it to reiterate protections already found
Consequently, it’s ridiculous to claim
in those other laws.
that the nation-state law undermines
Nor are any of the law’s specific pro-
democracy, equality or minority rights
merely because those terms don’t appear visions undemocratic. For instance,
the provision stating that “The right to
in it, given that several other Basic Laws
exercise national self-determination
already address these issues. The new
in the State of Israel is unique to the
law doesn’t supersede the earlier ones;
Jewish people” doesn’t deprive Arabs of
it’s meant to be read in concert with
individual rights within Israel, nor does
them.
it bar the possibility of Palestinian self-
Several Basic Laws, including those
determination in the West Bank and
on the Knesset, the government and
Gaza, which aren’t part of the State of
the judiciary, detail the mechanisms of
Israel. The only thing it prohibits is an
Israeli democracy and enshrine funda-
Arab state within Israel’s borders, which
mental democratic principles like free
is problematic only if you favor replacing
elections and judicial independence.
There are also two Basic Laws on human Israel with another Arab state.
As for the provision making Hebrew
rights, both of which explicitly define
Israel as a “Jewish and democratic state.” the state’s only official language, many
other democracies also have a single offi-
Of these human rights laws, the more
important is the 1992 Basic Law: Human cial language despite having large minor-
ities with different mother tongues.
Dignity and Liberty. It includes general
For instance, 17 percent of America’s
protections like “There shall be no viola-
tion of the life, body or dignity of any per- population is Hispanic, only slightly less
son as such” and “All persons are entitled than the 21 percent of Israel’s population
that’s Arab, yet Spanish isn’t an official
to protection of their life, body and
Point | Counterpoint
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August 23 • 2018
jn
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