Illiberal democracy and the Nation-State Law

Likud was a unique mix of two great ideas. The liberal idea of the rule of law, human rights, of the importance of the individual; and the national story of the Jews.

“This delicate balance was led by Menachem Begin when he headed Likud… This balance has been disturbed in favor of more nationalistic, national-religious ideas.”

Dan Meridor, 2016

“For Trump, the upside is the substitution of a liberal order with an illiberal one, based on conceits about sovereignty, nationality, religion and ethnicity. These are the same conceits that Vladimir Putin has long made his own, which helps explain Trump’s affinity for his Russian counterpart…

“It also explains his undisguised contempt for contemporary European democracy and his efforts to replace it with something more Trumpian: xenophobic, protectionist and truculent…”

Bret Stephens, 2018

Since the passing of the ‘Nation-State’ Basic Law last week, I have found myself in disagreement with two responses. One is the “this means apartheid!” claim (the exclamation mark is de rigueur) – the argument that this law single-handedly overturns Israeli democracy and other Basic Laws guaranteeing civil rights. It is too early to tell exactly how this law will be interpreted by the courts, and there is something absurd at the sight of Arab members of Knesset screaming about apartheid with no apparent sense of irony; blacks were denied the right to even vote under the apartheid system in South Africa, let alone be elected to parliament themselves.

The other response I have been arguing, with far more discomfort, is from supporters of the law, offering one variation or other of “as a Zionist, there is nothing in this law that I have a problem with”.

There are of course anti-Zionist opponents of the law, who simply object to its principal declaration: “Israel is the nation-state of the Jewish people”. Needless to say, that is not my concern. The problem for me is not what is in the law, but what is absent.

Consider this text as an alternative to the law that was ultimately passed:

“The State of Israel will be open to Jewish immigration, the ingathering of the exiles and will promote the development of the land for the benefit of all its inhabitants. It will be based on the foundations of freedom, justice and peace as envisioned by the prophets of Israel. It will maintain complete social and political equality of rights for all its citizens, irrespective of religion, race or gender. It will guarantee freedom of religion, conscience, language, education and culture. It will preserve the holy places of all religions and be faithful to the principles of the Charter of the United Nations.

The nation-state of the Jewish people is the State of Israel, a democratic state, an egalitarian state for its minorities with the blue and white as its flag, the seven- branched menorah as its symbol and ‘Hatikvah’ as its national anthem.

This was proposed by MK Benny Begin and subsequently supported and adopted by the Yesh Atid party. It is based on the wording of Israel’s Declaration of Independence, stating categorically that Israel is the nation-state of the Jewish people, reiterating the Jewish symbols of the state, but also referring to Israel’s democratic character and principle of equality for all its citizens, including those (some 20 percent) who are not Jewish.

That the law did not more closely resemble Begin’s proposal is my issue with it. This is intended to be the Basic Law determining the character of the State of Israel; essentially the de facto preamble to our de facto constitution, and a deliberate decision was made not to even mention democracy or the rights of the Arab minority.

By an unhappy coincidence, the law was debated and passed during the visit to Israel of Hungarian Prime Minister Viktor Orban. It was Orban who coined the expression “illiberal democracy” to describe his ideology, shared by the likes of France’s Le Front National, Italy’s League Party and the Freedom Party of Austria (the last two are now in government coalitions in Rome and Vienna respectively). To varying degrees, all display an ambivalence (at best) towards values such as free speech, free press and equal rights for all citizens; a blood-and-soil, anti-immigrant nationalism; and a religious conservatism, hostile to feminism and gay rights. Needless to say, antisemitism also has a place within this worldview.

Despite that last point, Orban was welcomed warmly by Benjamin Netanyahu and other prominent members of Israel’s right-wing parties. And we can see why. For many, a “Jewish and democratic state” is a Jewish state in which the government is democratically elected; democracy is of purely functional value. The Jewish national (and, for some, religious) character of the state is of surpassing importance and should always take precedence over universal human rights principles. Justice Minister Ayelet Shaked – one of the main drafters of the Nation-State Law – exemplified this well in her rebuke to the Supreme Court that “Zionism will not continue to bend its neck to a system of individual rights”. Agreeing with Shaked, Deputy Foreign Minister Tzipi Hotovely complained that “the judicial system has abandoned the values ​​of the Jewish state in favor of the values ​​of the democratic state.”

These are not the liberal democratic values that Israeli leaders routinely boast of sharing with the United States and other western powers. Neither is it the vision of a liberal and enlightened Jewish state depicted by Theodore Herzl in Altneuland or the compelling combination of the values of Jewish civilization with liberal democracy offered by Israel’s Declaration of Independence.

It is worth noting also that some of the most trenchant critics of the new law have been not leftists, but old-time Likudniks like Benny Begin and President Ruby Rivlin. They are veterans of the Likud of Menachem Begin, who along with his teacher Ze’ev Jabotinsky, the founder of Revisionist Zionism, was a classical liberal. As leader of the opposition, he was frequently the voice of liberal protest against a socialist government. He opposed the military administration of Israel’s Arab citizens, imposed by the government of David Ben-Gurion. He understood that, although in a democracy the will of the majority should prevail, in the words of Thomas Jefferson “the minority possess their equal rights, which equal law must protect, and to violate would be oppression”.

(It is worth pondering just how many members of the current Israeli government would be happy to publicly declare their identification with that sentiment.)

Begin fought for free speech; insisting on the right of journalists to publish the harshest criticisms of all Israeli governments, including his own.

(Again, how would today’s Israeli right, legislating continually against left-wing NGOs, measure up?)

Begin’s American hero was Abraham Lincoln. He astonished President Carter and his entourage when, visiting Gettysburg on a break from the Camp David peace talks, he started reciting the entire Gettysburg Address word-for-word. But just as the party of Lincoln is now led by Donald Trump, a man with neither an interest in, nor any understanding of, the values enshrined in America’s Declaration of Independence; today’s Likud have moved a considerable distance from Israel’s own Declaration of Independence, with its message of equality and social justice.

To end where I began, by refuting the most strident opponents of the Nation-State Law, this new piece of legislation does not make Israel an apartheid state, neither does it mean that Israeli democracy has vanished overnight. But it does take us further along a road that leads away from the liberal nationalism of Herzl and Begin, and closer to the narrow, intolerant chauvinism of Orban and Trump. This was not what Israel’s founders envisaged.