Now that the dust has settled, it may be a good time to take stock. Depending upon which account one read, it was either an outrage or a non-event: At the retirement ceremony for Chief Justice Dorit Beinisch in February, Justice Salim Joubran, the only Arab on the Supreme Court, stood respectfully for the national anthem, “Hatikvah” (“The Hope”), but did not sing. A television camera focused on his motionless lips, and a scandal was born.

‘Spitting in the face of the state’

The judge himself made no comment, but the universal assumption was that he did not feel comfortable or find it appropriate to sing of the 2,000-year longing of a Jewish soul for the return to its homeland.

Among the outraged: MK David Rotem, who demanded the removal of the judge for “spit[ting] in the face of the state” and said those unwilling to sing “can find a state with an appropriate anthem, and move there.” MK Michael Ben Ari proposed a “Joubran Law” that would restrict Supreme Court membership to military veterans, in effect excluding most Arabs.

At the other extreme, Gideon Levy of Haaretz, who plays unsolicited physician to Israel’s body politic and loses no opportunity to pronounce it moribund, predictably leaped upon the story with the perverse glee of an oncologist discovering a massive tumor. But in case that was too subtle, Yossi Gurvitz seized upon the episode as proof that a Jewish state is a Nazi “Herrenvolk state” whose proponents are motivated by fear of “loss of blood purity.” And the Angry Arab News Service crowed, “I relish the humiliation of this judge in the racist high court of the racist state.”

Justice Salim Joubran (photo credit: Kobi Gideon/Flash90)

Justice Salim Joubran (photo credit: Kobi Gideon/Flash90)

None of these reactions were news except in the sense that they happened: neither unexpected nor notable. Someone should just design an algorithm to generate the responses; it would save us all a lot of time.

But the story does not end there, and that’s what made it newsworthy. Just imagine: defending the judge we find not only other members of the court, the editors of Haaretz, and the left-wing parties, but also Likud’s Knesset Speaker Rivlin, Deputy Prime Minister Ya’alon, and Prime Minister Netanyahu — as well as Zeev Jaobtinsky (grandson and namesake of the Revisionist Zionist ideologue). Something very interesting was afoot.

Normally, of course, one judges a judge not by the words that he sings, but by the words that he speaks from the bench. No one has faulted Justice Joubran in that regard.

Justice Elyakim Rubinstein defended his colleague as a loyal citizen and jurist of integrity. All Israelis, he said, must show respect for the anthem, “but one cannot demand that Arab citizens sing words that do not speak to their hearts and do not reflect their roots.” Deputy PM Ya’alon said, “The attack on Salim Joubran is inexplicable, unnecessary, and reeks of persecution due to his origin.” In a similar vein, Jabotinsky called the decision of the television station to film the judge and then broadcast the footage “disgraceful… ugly media manipulation,” and likened the harassment to the persecution of Jews “during the Spanish Inquisition.”

The wandering melody

Here’s where some history comes in handy.

We have been here before. Five years ago, Raleb Majadele — the first Arab minister in an Israeli government — likewise stood for but declined to sing the anthem. That controversy is long forgotten, but perhaps also forgotten is that Hatikvah was legally established as the national anthem only in 2004 — coincidentally, the same year that Justice Joubran assumed his seat as a full justice. Evidently the nation got along fine without one when statehood was declared, and through the existential wars of the next quarter-century.

It did so because “Hatikvah” had a much deeper history and, formally or not, was the national anthem by tradition and consensus. (We shall return to that point.)

The text by Galician poet Naphtali Herz Imber dates from circa 1878 and appeared in print in 1886. Musicologists call its accompaniment a “wandering melody,” documented in numerous compositions, from Italian Renaissance songs and dances to Sephardic and Ashkenazi liturgical settings and the Bohemian folk tune that underlies Smetana’s “Vltava” (“Moldau”). Although delegates spontaneously sang Hatikvah at the First Zionist Congress in 1897, the movement formally adopted it only in 1933.

Debate on the anthem is not new. The two most frequently voiced objections are that it is neither relevant nor representative: First, longing for Zion is passé now that the “hope” of return has been fulfilled; second, that longing was never the dream of non-Jewish citizens. Neither objection in its general form is unique to this song and country.

Modern national anthems are a product of the age of democratic revolutions. Many are what F. Gunther Eyck calls “liberation” and “resistance” anthems, born of the struggle to achieve or maintain independence. Relevance? The specific episodes — the fate of Polish troops in Bonaparte’s Italian campaign or the garrison at Fort McHenry in 1814 — are less pertinent today than the sentiments of national peril and aspiration that they evoke and invoke. And representativeness? One doubts that a republican atheist feels inclined to seek the blessing of a supernatural being for a hereditary monarch who heads the Church of England. And the proud new Muslim citizen of Pakistani or Moroccan descent may fail to be moved by Norway’s homage to the “saga night” and “Norse man in house and cabin,” or a Dutch anthem in the voice of a sixteenth-century Christian ruler.

To say that the problem is not unique, of course, is not to say it is unimportant. And it is distinctive to this extent: As Mark Lilla has observed, the foundings of all nation-states are “morally ambiguous enterprises,” but that of Israel has the misfortune of being “still fresh within living memory.” Above all, the original conflict remains unresolved.

History’s lessons

Proposals to change Hatikvah are also nothing new. In fact, the closing, “To be a free people in our land, the land of Zion and Jerusalem,” is a post-statehood revision.

Hatikvah in a Haggadah created by Holocaust Survivors in Germany, 1946: the orginal wording, “the ancient hope to return to the land of our fathers, to the city where David dwelt”

More recent suggestions, like support for Justice Joubran, have come from both right and left. They range from simply changing “Jewish soul” to “Israeli soul,” to scrapping the entire anthem, with plenty in between. Ironically, perhaps, the more one attempts to fine-tune the text, the more that larger issues about the character of the nation-state rise to the surface. In the last go-round in 2007, Nadav Shragai provocatively asked where the process of revision would end: what of the flag? or the menorah that is the emblem of the state?

Here again, history has some lessons.

In Eyck’s view, the text, which generally predates the music, “bestows the national imprint upon an anthem.” (Nonetheless, the melodies have acquired a historical power of their own; think of state and Olympic ceremonies.) Most successful alterations have involved either modest editing or abridgement to choose stanzas that are most modern and inclusive. Germany is the classic example. By contrast, Eyck notes, top-down major revisions or the creation of entire new anthems almost invariably fail. Lacking national tradition and popular support, such a “hothouse plant” is unable to survive in the real world.

For most Israelis, fulfilling the promise in the Declaration of Independence that the state will “ensure complete equality of social and political rights to all its inhabitants” does not require eliminating all reference to its Jewish character and the Jewish national destiny that is its raison d’être. That Arab-Israelis can rise to high positions in the judiciary, government, and civil service is reason for pride. That some of them feel unable to sing the national anthem of the state that they loyally serve should give pause. Still, either compelling everyone to sing the current version or peremptorily changing it would be equally unwise. Hatikvah may change sooner or later, but only a national consensus would make that step — which anyway faces a steep legal hurdle — cause for greater unity rather than division.

A respectful silence

The country can, by and large, be pleased with the way it responded to the controversy. (One need but imagine how a comparable episode in the US would have played out in this election year.) Still, self-satisfaction and complacency are every bit as misplaced as Jeremiads and Schadenfreude.

Two of the most symbolic performances of “Hatikvah” were by the Israel Philharmonic: the first, when Independence was declared; the second, after the Six-Day War, when Leonard Bernstein celebrated the reunification of Jerusalem and the return to the Hebrew University campus on Mount Scopus. The latter was a benefit for the “Jerusalem Foundation for the Development of Jewish-Arab Youth Activities.” That moment embodied the high — in retrospect, perhaps naive — hopes for a unification of peoples as well as place.

Already in 1926, the first Ze’ev Jabotinsky (whose dedication to maximalist Zionist goals no one ever questioned) spoke two difficult truths to both parties in the conflict: first, that Arabs would have to reconcile themselves to being a minority in the eventual Jewish state, and second, that the latter would rightly be judged by its treatment of the former:

If things fare badly for this group of inhabitants then things will fare badly for the entire country.

Perhaps the best legacy of the controversy on this eve of Independence Day would be for the judge’s respectful silence to stimulate a respectful conversation about the way that the “National Home” of the Jewish people has made progress toward achieving that goal.