Israel’s Nation-State Law: Just like other democratic constitutions? Not quite

Updated: Sep 9, 2018

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Israel’s Nation-State Law has set off tremendous controversy, first and foremost due to its first article giving the Jewish people the unique right to self-determination in Israel. Critics view this as either proof of, or a step towards, apartheid.

Supporters counter that Israel defining itself as a Jewish state is no different from any other democracy that defines its national identity in its constitution. Jonathan Tobin, an editor at the Jewish News Syndicate, wrote in the National Review: “Spanish nationality is given priority over that of ethnic minorities such as the Basques or the Catalans.”

Conservative Israeli law scholar Eugene Kontorovich wrote in the Wall Street Journal that similar constitutions are “mundane” in other countries. He notes that the Slovak constitution states: “natural right of nations to self-determination.”

Both essentially argue that criticizing Israel over a constitutional statement of its Jewish identity is a hypocritical double standard, driven by an underlying anti-Israel agenda.

Is the Nation State law actually significantly different from the constitutions defining the identity of other Western democratic countries?

Both authors above have chosen, perhaps carefully, to examine countries that suit their point. What about the two archetypal democracies of Europe, France and Germany? I purposely leave the US and Canada aside, since both consciously define a civic-national or multi-cultural identity.

Both France and Germany do in fact define a national identity: In its preamble, Germany’s constitution states that the German people have exercised their constituent power of self-determination. The French constitution is “solemnly proclaimed” by the French people. Article II of the latter goes on to define the symbols of the French state, just as Israel’s Nation-State law does.

But there is a deep difference: in both cases, the nation is defined as completely overlapping with citizenship. Article 116 of the German constitution defines the German people as anyone who holds German citizenship, and states special provisions for the restoration of citizenship for those who lost it during World War II. The preamble of the French constitution states that it is based on the 1789 document called the “Declaration of the Right of Man and the Citizen,” and the modern constitution is permeated with references to the citizen as the source of the law and suffrage.

Israel’s new Nation-State Law, by contrast, establishes a constitutional definition of the country based on only a sub-set of its citizens. About one-quarter of Israel’s citizens are not Jewish, and now they do not possess the right to self-determination in their own country. The equivalent of the Nation-State Law in the US would be a constitutional pronouncement that white people alone have the right to self-determination – since about the same percentage of Americans are white (nearly three-quarters). A preamble that read: “We the white people of the United States…” would justifiably cause more than an uproar; it would probably spark a war.

Moreover, the examples cited by those who defend the law are described with troubling selectivity, neglecting major differences beyond the limited statements of peoplehood.

In Slovakia’s constitution for example, the very next line following the “national right of nations to self-determination” is the following: “…Together with members of national minorities and ethnic groups living on the territory of the Slovak Republic…” The final line of the preamble states that “we, the citizens” – again showing that nationhood is conferred upon the entire citizen body.

The Spanish constitution of 1978, similarly, focuses heavily on the Spanish nation and the Spanish people as the source of self-determination. But Section 2 stipulates that Spain “recognises and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.” Section three sets Castilian as the sole official language but notes that other Spanish languages are official in the regions where those communities are self-governing. In other words, the document recognizes minorities as part of the body politic, and states solidarity with them as part of the country’s political identity.

Israel’s Nation-State Law doesn’t mention minorities at all, let alone express solidarity and unity with them as part of the nation. It recognizes a special status for Arabic language, without actually referring to people. And the language clause, infamously, demotes Arabic from its prior status as an official language.

The reality is that even those other constitutions are not always successful at creating inclusive societies. Despite the Spanish articles recognizing minorities, Catalans have not felt sufficiently included; last year they voted in a dramatic referendum to secede from Spain. Yet when that Arab citizens of Israel protested the new law by flying a different national flag – though they have never even hinted of secessionism – they were accused, in a strange circular argument, of proving their subversive intention and thus the need for the law.

But just as important is what the Nation-State Law leaves out, specifically, any reference to equality. At present there is no other Basic Law in Israel that explicitly guarantees equality of all citizens. The 1992 Basic Law on Human Dignity and Freedom contains an amendment referring to the spirit of the Declaration of Independence from 1948, which calls for social and political equality of all inhabitants, regardless of religion, race or sex. Equality in the 1992 Basic Law depends on those interpreting the law, since the word “equality” never actually appears in the text. The new Basic Law refers neither to equality, nor to democracy.

All the other constitutions here make explicit statements of equality and place them prominently. Article 3 of the German Constitution states simply: “All people shall be equal before the law.” Article 1 of the French Constitution states that France will “ensure the equality of all citizens before the law.” Slovakia too has a clear and explicit equality clause (Title II, Section 1, Article 12). Spain, with its delicate negotiation between Spanish and minority nationalities, goes further: Section 9, Article 2 mandates that the state take an active role in fostering the conditions of equality:

It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.”

It can be argued that Israel differs from those countries. Israel faces a unique challenge to its very existence and in this context, requires a more exclusive national self-definition. Here, a non-intuitive comparison is helpful – with the tiny, new state of Kosovo. Kosovo too was born out of war. Unlike Israel, its very sovereignty is still denied and it is blocked from UN membership. Albanians in what was once the province of Kosovo were a minority in the larger state of Yugoslavia, and later Serbia; they were subjected to a discriminatory military regime, then physical attack and expulsion by hostile Serb forces. In Kosovo, however, Albanians are majority and Serbs a small minority – sound familiar? Serbs are a majority in the north (consider the Triangle region in Israel), and others live scattered throughout the rest of Kosovo, in “enclaves” – think Jaffa, Lod.

With the bloody trauma of the 1999 war still fresh, how did the Albanians of Kosovo define their country, while acknowledging the Serbs and other minorities? In its constitution, ratified in 2008, the first article states that Kosovo is a state of its citizens - something that is akin to treason for Israel’s right-wing Jewish community. In Article 3, Kosovo declares itself a “multi-ethnic society consisting of Albanian and other communities.” The second section of the same article guarantees equality before the law. Like Spain, the constitution has not satisfied those minorities, some of whom continue to seek partition. Further, the constitution was the product of great international intervention into Kosovo’s emerging statehood, in which European figures insisted on recognition of minorities – belying Israel’s claims of unique “singling out.”

Far from proving the hypocrisy of criticizing Israel’s Nation State Law, these other examples show thoughtful and sensitive attempts to juxtapose legitimate national self-determination with an inclusive, respectful approach to national minorities. They show that options were there; for Israel’s legislators, the spirit was not.