Today, in the Israel of 2018 — with its restrictions on basic liberties as reflected in aggressive legislation against any critical public discussion of the policies of the hegemonic right-wing government — the importance of deliberating public matters, including the Nation-State Law, can no longer be taken for granted. Liberal circles are rightly suspicious that broad segments of the Jewish population consider open and free critical deliberations of government policies as a form of “unpatriotic” behavior and therefore illegitimate opposition. Today’s Israel is characterized by an atmosphere of intimidation, supported by the passage of laws whose main aim is to silence voices that oppose the ideological worldview of the rightwing coalition of conservative nationalist parties headed by the Likud. It is sufficient to mention the “NGOs Law,” the “Nakba Law,” the proposed “Cultural Loyalty Bill,” and the systematic attack on academic institutions, the “wayward” voices in the media and human rights organizations to illustrate this point.
The passage of the Basic Law “The State of Israel – Nation-State of the Jewish People,” supported by 62 MKs and opposed by 55, has created a new constitutional reality in Israel. The constitutional importance of this law is rooted in the fact that Basic Laws are intended to be building blocks in an incrementally constituted future constitution of the state, in accordance with the compromise proposed by MK Yizhar Harari and accepted by the first Knesset on June 13, 1950. The law, by its very definition and by the intention of its authors, paints the constitutional and judicial culture in Israel in new colors, as it constitutes a kind of quiet revolution against fundamental liberal principles which were expected to begin taking root in the practices of the legislative and judicial systems in the 1980s and 1990s. The Nation-State Law’s architects have led an unconstitutional constitutional mini-revolution vis-à-vis the identity and values of the state as seen by the liberal political and judicial elite, who seek a more democratic and moral Israel. To briefly substantiate these claims, it would be worthwhile to examine them in the light of the “spirit of the laws,” as discussed by major classical and modern political and constitutional philosophers.
The Essence of a Law Is to Be Found in Its Purpose
Since the days of Plato, it has been clear to us that the essence of a law is to be found in its purpose. Plato illustrated this in The Laws, which was written to affirm the importance of the status of the law in human society and to turn our attention to the purpose of the law as reflected in its discursive meaning. Hundreds of years later, Montesquieu, the 18th-century French philosopher, wrote The Spirit of the Laws, emphasizing that a law contains a number of basic assumptions that grant it meaning. Questions about the sources of the authority of the law, the telos of the law, the spirit it reflects and the moral system it gives voice to are some of the main issues he discusses in order to reveal the meaning of the law. He states:
- Law in general is human reason insofar as it governs all the peoples of the earth; and the political and the civil laws of each nation should be only the particular cases to which human reason is applied. Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another. Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws.
In this respect, it is interesting to note that Montesquieu’s diagnosis is only partially relevant when examining the motivations behind and the spirit of the Nation-State Law, since its legislation does not come to crystalize a new nation, for the citizenry already exists, but actually to reconstitute the foundations of a new demos in way that breaks with what has been developing already.
Montesquieu’s statement allows us to deduce the spirit of the entire process of a law’s legislation and reveal the political intentions embedded in it. If a law reflects a general “zeitgeist,” one must question the spirit reflected in the Nation-State Law! Likewise, if the law allows us to understand the authority made present in the law, then an analysis of the Nation-State Law and its structure provides us a deep understanding of the desired relationship between the subject of the law and the reality that this subject aspires to establish. In this context, Montesquieu emphasized the virtue that is founded in the law. By this, he meant that the law entails a value system that it aspires to give expression to. The Nation-State Law is a good case through which one can reflect on the virtues, the subject, and the sources of authority anchored in the Israeli constitutional order, as aspired to by those constituting this order in the last decade.
The Law Reflects a Theological Spirit
In phenomenological terms, it goes without saying that the language of the Nation-State Law reflects a theological spirit, which reduces Israeli sovereignty to a narrow ethno-national sovereignty rooted in religious sources and is built upon the collective consciousness of an “unrealized” nationalism, as formulated by Rogers Brubaker. The law reduces the concept of the state to the ancient theological foundations that grant it power and legitimacy. As such, it constructs the state as a theo-ethnocracy in which sovereignty is imagined as stable and fixed, based on a narrow and exclusive religious narrative. Accordingly, Israeli “sovereign” is not identical with Israeli citizenry, as is common in democratic regimes. Instead, the Israeli sovereign of the law identifies itself in ethno-religious terms, thereby including all Jews and excluding all non-Jewish Israelis. This is an indivisible sovereignty which cannot be viewed as a function of the desire of the state citizens but rather a function of theological authority granted exclusively to the chosen people with which it is identified, based on a divine contract.
Furthermore, according to the law, one source of sovereignty is the general will of the entire Jewish people, parts of which are not citizens of the state. As such, the law expresses both a romantic and organic concept of the nation, establishing a noncoherent valuational symbiosis between the sovereign nation and the state. This constitutional engineering is notable, since there is no overlap between nation and state, especially when it comes to excluding all non-Jewish citizens, turning Israel into a case that deviates from accepted civic aspirations of nation-states. Furthermore, in as much as Jewish identity is not only national but also religious, the law grants Jewish religion and its values a special place in the constitutional identity of the state, thereby alienating a large minority of the citizenry. As such, it reflects Michel Foucault’s claim that the state is “a new form of clerical power,” in this case Jewish clericalism, which is not necessarily defined in narrow religious terms.
It is difficult not to recognize in this conception an echo of the words of Georg Wilhelm Friedrich Hegel, who saw the state as the embodiment of the ethical idea, according to which the state constitutes the manifestation of the concrete freedom of a group of human beings who are its exclusive participants. The moment a state is conceived in these terms, it paves the way for the abomination known as fascism. Likewise, it is difficult not to see it as an echo of the theory of the chosen people, which, according to Karl Popper, assumes that God has chosen a single people to act as the instrument of His bidding. Overemphasizing the ethnic dimension of the chosen people is enough to turn it into a conception of the chosen race.
The Nation-State Law is accordingly a dangerous landmine not only in the heart of the true democratic potential of the state but also in the possibility of the establishment of a liberal Jewish nationality. While the latter views the sovereignty of the Jewish people as an expression of the normal human desire for self-determination, the conception anchored in the law is that of an organic nation which reflects the irreversible will of God and thus brooks no interference. From this point of view, the Nation-State Law marks a backsliding in relation to the legal and judicial spirit which the Israeli Declaration of Independence attempted, at least minimally, to outline and which Israeli judicial tradition began to dare to translate into practice beginning in the mid-1980s up until the last decade.
The Nation-State Law assumes an imagined, but ongoing, mental and normative state of exception that can be seen in the perceived need for the law, its justifications, and its formulation. It assumes that the absence of such a law constitutes an immediate existential danger to the identity of the Jewish state, as if the state has not been Jewish enough so far, and thus it grants legitimacy to policies that characterized dark periods in human history when emergency regulations dispossessed entire peoples — foremost among them the Jewish people — of their identity, rights and, as a result, their humanity. Symbolically, the law assumes a situation of existential insecurity, similar to that described by Thomas Hobbes in “The Leviathan,” in order to justify its very necessity. In other words, the law assumes in its very formulation a situation of fear and potential threat which demands an unequivocal exceptional response. Such a response does not afford a place for hermeneutic ambiguity, which normally characterizes the spirit of liberal laws, allowing room for complex and dynamic interpretation subject to concrete historical circumstances. Instead, the law enlists the concept of defensive democracy in order to justify emergency legislation that is assumed to suit the unusual conditions that must be faced.
The Nation-State Law belongs to a legal tradition that rests on the creation of an illusory safe space whose very existence implies a constant threat. Such a space is illusory, because in establishing identitarian security it creates its own antithesis, which in turn leads to perpetual fear, which totally empowers emotions, by populist means, over rationality. Simultaneously, the framework of the safe space established by the law enables the identification of enemies who become objects of fear whose presence is indispensable for the justification of the state of exception itself. In this way, it locks the subject of security and the object of fear in a vicious cycle of perpetual mutual enmity.
Undermining the Process of Liberalization
It should be noted that many Israeli constitutional scholars think that Israeli judicial theory underwent a process of liberalization in the 1980s and early 1990s. Between the polarities of formalism versus normativity, which characterize two “opposing” judicial cultures or, more accurately, which stand in the tension in the law, they argue, Israeli judicial theory tended from the 1980s until the past decade toward increasingly emphasizing liberal norms. It is believed that it went a long way from a formal, closed, unequivocal conception of the law — decisionism — to a more dynamic and fluid conception, as depicted by Zygmont Bauman. This theory strived to rest on basic liberal civic values, which subordinates its decisions to universally committing principles. The basic assumption underlying this normative judicial tradition is that the law, which ought to be interpreted based on contextual circumstances, reflects a general loyalty to central human values, which is believed to reflect the historical evolution of Jewish values. According to this tradition, it is possible and necessary to reconcile the Jewish value system with universal human values. The necessity of this reconciliation is rooted in the fact that the Jewish people have become sovereign and, therefore, there is a need to normalize its sovereignty within a new civil national culture. Despite the challenges this interpretive tradition faces, it succeeded in earning the sympathy of renowned jurists in Israel and abroad, since it managed to convince many that it is possible to bridge the gap between liberal nationalism and universal civil rights.
The Nation-State Law came to put an end to this judicial tradition. The law’s originators, and particularly Justice Minister Ayelet Shaked, view this tradition as dangerous to Jewish sovereignty and too generous toward liberal Jews and Arab citizens. This view is promoted through the need to preserve Israel’s character as a moral “villa” in an immoral “jungle.” The law is not intended to reinvigorate the formalistic judicial culture. On the contrary, it comes to maintain the normative judicial tradition but replace the liberal values with conservative nationalistic ones. Thereby, the law promotes a legal and judicial culture that are based on a theology of supremacy that echoes what Walter Benjamin depicted as divine law — a legal tradition that led Benjamin to flee his home country and ultimately commit suicide to avoid being imprisoned by the propagators of radical nationalism.
The Nation-State Law strives to preclude the possible normalization of Jewish sovereignty based on universal values, such as freedom and equality. It came to apriori determine the normative order that ought to stand at the heart of the Israeli public when it comes to deliberate the values of the state. Thereby, the law marks the state as normatively exceptional, as it is shackled to a divine order. The constitutional imaginary behind the law assumes an abstract state of emergency as a perpetual basis of sovereignty. As such, it strives to close a number of avenues that had opened, at least slightly, in the state of Israel in recent decades and had thus instilled hope in various populations for a more pluralistic, humane and tolerant future. The law strives to close future horizons by dictating the meaning and limitations of the possible interpretations of the future Israeli collective reality. In order to illustrate these points, and given that it is impossible to relate to all of the ramifications related to the law, I will make do with a short account of four major closures, each of which complements the other and make the spirit of the law clearly transparent.
Closing the Potential Civil Space in Israel
The Nation-State Law closes the potential civil space in today’s Israel. It turns the relationship between Jewish and non-Jewish citizens into one based on a strict differentiation between friend and foe, which tolerates no possible alternatives to complete loyalty or treasonous behavior. This conception, primarily identified with Karl Schmidt, deprives citizens of their individual sovereignty and subordinates them to a singular value system, which is determined a-priori of their free will. If the 1948 Declaration of Independence created an open interpretive horizon capable of constituting a future civil mechanism of inclusion (which, even if not realized until now, remained as an existent legal potential to be realized), the Nation-State Law creates a closed horizon based on a hierarchy that pushes those who are not included in its definition to a life of secondary status and constant ontological insecurity. There has always been a gap between nationality and citizenship in Israel. Nevertheless, “Israeliness” reflected a potential bridging ethos that would enable Jews and non-Jews to share at least a minimum of common life. The Nation-State law obliterates any such overlap and thus closes the horizon of any form of Israeliness to non-Jewish citizens.
The law empties Israeli citizenship of any substantial meaning, since it is not necessary for Jews in view of their complete identification with the state and not useful for non-Jews, since it does not guarantee them the basic principle of equality in the state. It encloses various citizens into sealed and necessarily opposing identities destined to battle one another since only one of them can survive over time. This legal culture reflects evolutionary political engineering, which aims to prove the theory of natural selection that guarantees the survival of the fittest. Non-Jewish citizens are sentenced to one of three possibilities: emigration, assimilation or war.
In the language of Hannah Arendt, the law imposes a complete overlap between the existential and the political planes in the lives of part of the citizenry — in this case the Jews — and creates a complete break between them in the case of the Palestinian citizens of the state. The latter exist, but with no relationship between their factual existence and their ability to determine the forms of their existence. The break between the two planes creates a situation where they are citizens in terms of obligations but not in terms of rights. Arendt referred to this status as half-statelessness. There can be no doubt that the passage of the Nation-State Law proves that she was right in her evaluation of the practical significance and future development of Israel as a Jewish state. From the vantage point of her experience as a Jewish refugee who was forced to flee her home country, she understood clearly that when organic conceptions of nationality join together with total conceptions of the state, a situation is created that Isaac Bashevis Singer perceptively described as a kind of Frankenstein golem.
Closing the Opportunity for Reconciliation with the Palestinians
The law closes the opportunity for reconciliation with the Palestinians, who view the territory it defines as the sovereign Jewish Land of Israel as their homeland. In their eyes, the Palestinian connection to their homeland is no less in terms of moral weight and historical justification than that of the Jews. Therefore, they are ready to fight over it. Instead of compromise, the law establishes a constitutional conception and, subsequently, a political and cultural one that views the Palestinian connection to this same territory as inherently delegitimizing Jewish existence on it. This is an absolutist position, which sees no room for mutual legitimacy and recognition regarding the sentiments and historical consciousness of both peoples to the same land. It reflects an obtuse exclusivity projecting a lack of selfconfidence in the justice of one’s path, which is repressed and translated into a discourse that contradicts the spirit of laws, as characterized in the liberal tradition. The exclusivity of ownership over the land, which is translated into exclusive sovereignty, creates a constant state of exception, which voluntarily perpetuates the slogan of eternal warfare. This sovereignty of ownership, as formulated in the writings of Chaim Gans, rests on a faithbased transcendental belief which is not open to refutation or negotiation because any compromise would be heresy or treason. This thinking is fundamentally theological and, therefore, racist in a pluralistic Jewish and a complex Jewish-Palestinian reality. When it is joined with the Basic Law: Referendum, which passed a few years ago, it is possible to understand the cumulative effect of the spirit of the laws passed in the last decade, which leave no room for doubt as to the future intentions of the laws’ authors.
Religion Becoming the Source of Legitimacy
Nation-State Law has enormous consequences for the Jewish way of life, irrespective of relations with non-Jews in the country — citizens or non-citizens. Its definition of the Jewish state and the value system it advances closes the pluralistic space of Jewish life in Israel. It creates a reality of Jewish life where differences and discussion will be judged by their relation to the supremacy of the dominant conception of Judaism in the country. Citing religion as the source of legitimacy for the character of the Jewish state, alongside the omission of all reference to the democratic and egalitarian character of the state, grants greater weight to those responsible for defining Judaism and Jewish identity. These are not the liberal circles in the Jewish world. It is clear that the formulation of the law was intended to advantage the conservative stream at the expense of other streams in the Jewish world.
If we take into account the coalitional structure of Israeli politics and the ability of small groups with radical religious background to impose their will on the political system and wield strength beyond their proportion in the population, and if we take into account the process of increasing religious dominance in Jewish society, we can conclude that the cultural character of Jewish society will be determined by the conservative streams, while the influence of the liberal elements is fading. The significance of the law can already be seen in the policy of the Ministry of Education, which is striving to deepen Jewish identity in the non-religious state schools and thereby control the historical consciousness and cultural identity of Israeli society. The significance of the Jewish state is being translated into an educational policy that is promoting the supremacy and exclusivity of the orthodox streams of Jewish thought. Those responsible for this spirit of the law are investing huge efforts in closing off possibilities for an open discussion of the meanings of Jewish sovereignty and culture, and they brand as traitors, heretics and enemies those who do not fall in line with their worldview. The ever increasing domination of religious conceptions over various areas of Israeli life points toward a future where the limits of discussion and diversity are very restricted. The law not only reflects this trend, it strongly reinforces it.
Closing the Normative Space for Maneuver
Insofar as the law comprises a system of norms which guides actions toward a desired future, it closes the normative space for maneuver of all governmental systems, especially the judicial. In its role of balancing the Jewish dimensions and the liberal-democratic dimensions of Israeli reality, the Nation-State Law obliges the judicial system to grant automatic preference to the value system of the former. As long as the reigning conception saw no contradiction between the Jewish and the democratic character of the state, it was possible to create balances between values standing in tension. For the Nation-State Law, the fact that the state is Jewish does not mean that it is democratic, as the Supreme Court tried to establish. According to the law, there is a contradiction between the Jewishness of the state and its democratic nature. Whoever follows the evolution of the law, whose source was the Institute of Zionist Strategies, and examines the discussions in the special Knesset committee established to advance the law, will see that the law’s promoters began with the assumption that there must be a clear hierarchy between the state’s Jewish values and its democratic values. According to this conception, the value of equality is detrimental to the Jewish nature of the state and must therefore be excluded from the formulation of the law.
Thus the final version of the law states that there is no overlap between the Jewish and democratic values of the state, and when there is tension between them, preference goes to Jewish values and identity. Thus the law closes the avenue for open interpretation in Israeli legal and judicial theory, which was derived from the Declaration of Independence. It imprisons the courts in the jailhouse of its discourse. The limits of interpretation are to be determined by the living sovereign power — the legislators, who legislate in the name of the people — and not by those responsible for the interpretation of the law: the judges. This establishes a master-slave relationship between the ruling majority and the judicial system. The whipping of the “slaves” has become legitimate in the language of the law, and it is a reflection of the political culture of decisionism as characterized by Schmidt. The attacks on the court and its continuous delegitimization are an expression of the spirit of the law, as celebrated by its custodians.
Closing the Gap between Reality and Ideology
I must admit that despite what I have said so far, I am glad that the law passed because it closes the gap between practical reality and ideology. It removes the veil that the judicial system had put on the real policies of the state. It also demonstrates that the common belief of reconciling the Jewish and the democratic characteristics of the state, without engraving it in the tradition of civility and respect for individual and collective equal rights of all citizens, is not and has never been realistic.
In summary, the constitution of the Nation-State Law in the Jewish state reflects a painful historical irony. The judicial theory of Karl Schmidt, the man considered the leading jurist in one of the darkest regimes in history and one which expressed enmity to Jews as such, has become, in the language of the Nation-State Law, the progenitor of the judicial theory of the jurists and legislators of the hegemonic Jewish majority in present-day Israel.