Jewish or Democratic? A New Twist on Israel’s Founding Principles

While on the surface, the current Israeli political drama may seem like much ado about very little, those who care about Israel cannot afford to shrug it off.  The Knesset recently dissolved itself and set a general election for March 17, 2015 – two years ahead of schedule – as a result of the Cabinet’s endorsement of a proposed basic law declaring Israel to be the nation-state of the Jewish people.  I certainly sympathize with the aspiration to place Israel’s identity as a Jewish State beyond credible challenge, but this proposed basic law would not advance that goal.

Since Israel has no written constitution, the “basic laws”, of which there are currently eleven in effect, collectively serve that function. The proposed additional basic law, its proponents have claimed, is necessary to assure the State’s Jewish character.  Those opposing it argue that most of the proposal would merely enshrine on a constitutional level elements that are already part of current Israeli law and practice while the few non-redundant provisions would undermine Israel’s status as a democracy.

The proposed basic law, would confirm the flag, official seal and national anthem of the State, the celebration of Yom Ha’atzmaut as Israel’s independence day and the observance of Yom Hazikaron and Yom Hashoah as memorial days (for fallen soldiers and Holocaust victims respectively).  It would reaffirm the Sabbath and Jewish holidays as the established days of rest under the Hebrew calendar.  Most important, it would give constitutional status to the Law of Return, thus guaranteeing that the State would always be a haven for persecuted Jews.

The bill’s supporters see it as a way of protecting the constitutional status quo while its opponents see it as a dangerous turn in an anti-democratic direction.  The debate seems to be a stand-in for one of the foundational questions of modern Zionism.  Israel is – and was intended to be – both a Jewish State and a democracy.  But in the event of a conflict between the Jewish and democratic characters of the State, which should take precedence?

This not a new question, of course.  It’s one that’s been hanging around since the beginning of Zionism; it hasn’t been solved because it’s inherently insoluble. There is an inherent tension between Israel’s Jewishness and its democracy and a need to keep both principles in balance.  Israel’s Declaration of Independence asserts its commitment to both without attempting to reconcile the two.  Many of the bill’s supporters believe that Israel’s Supreme Court (which has a strong activist character) has skewed the balance heavily on the democratic side and see the proposed basic law as a way of prodding the Court to balance the two founding principles more evenly.

About twenty percent (20%) of Israel’s citizens are Arab, and their right to be treated as equal citizens is protected by law. Their equality may be less than absolute in practice, but Israel is hardly the only nation whose reality falls short of its ideals in the treatment of minorities.  Israel’s efforts to enhance the equality of its Arab citizens are imperfect, but fairly impressive when you consider that Israel has been in a technical state of war with one or more of its Arab neighbors throughout its entire history. Countries at war are not usually the best exemplars of civil liberties. Does the internment of Japanese Americans during World War II sound familiar?  Can you imagine what the international outcry would sound like if Israel acted that way?

There’s no self-evident way of eliminating the tension between Israel’s Jewishness and its democracy, since Israel cannot afford to abandon either principle.  Under the circumstances, the best approach may be the one Israel has been following, albeit unintentionally, throughout its history.  When a problem does not admit of any viable solution, the best approach may be to just muddle through day by day.  It’s not an elegant approach, but it’s often serviceable, and Israel, by necessity, has turned it into something of an art form.

So why has the Jewish vs. democratic issue taken on such importance now, at a time when Israel has no dearth of concrete problems to address?  Underlying this clash, I suspect, is the stalemate in the peace negotiations with the Palestinian Authority.  I doubt that many Israeli leaders, on any part of the political spectrum, really believed that the negotiations were likely to succeed; it had long been clear that Palestinian President Abbas had neither the stature nor the will to make meaningful concessions.  As long as talks aiming at a two-state solution were continuing, however, it was easy to avoid considering the alternatives, most of which would undoubtedly be worse for Israel than the status quo.

When the talks collapsed and the Palestinians began to seek other means of attaining statehood, creating other alternatives became more urgent. If Israel is to control the West Bank for the foreseeable future, how should it deal with those who live there, who are far more numerous than the Arab citizens of Israel? If Israel  annexes the territory and offers Israeli citizenship to its residents, then Israel’s status as a Jewish state would be undermined.  If it maintains control of the territory permanently without offering citizenship to the residents, then its standing as a democracy would be compromised.  At that point, muddling through might cease to be a realistic option.

Israel’s day-to-day commitment to both its Jewishness and its democracy is easy to defend, but adopting a law of constitutional standing that expresses a clear preference for Jewishness over democracy would be another matter entirely.   To be clear, if push comes to shove — if Israel is forced to choose between being a Jewish State and being a democracy – I believe that it must give priority to its Jewishness.  The world, after all, has many democracies but only one Jewish State.   We should not delude ourselves, however, into denying that such a choice would carry substantial costs and significant risks.  No purpose would be served by making that choice prematurely, which is precisely what the proposed basic law is designed to do.

Many Israelis and Diaspora Zionists have become so frustrated by the incessant drumbeat of one-sided criticism that they have come to believe – or at least claim to believe – that they need not take the views of foreign governments into account in their decision making.  That is a dangerous delusion.  Yes, much of the international criticism of Israel is hypocritical at best, but you can’t just wish it away.  When its national security is threatened, Israel must do whatever is necessary to protect its citizens no matter what the rest of the world thinks.  But Israel does not have such a surplus of friends in the world that it should squander the few it does have on empty symbolism.

On November 26, as the events that would lead to the dissolution of the Knesset were unfolding, in London Sir Gerald Kaufman, a Labor MP who is Israel’s worst enemy in the British Parliament, rose to put a question to Prime Minister David Cameron. He mentioned a few of the provisions that were thought to be in the proposed basic law and invited the Prime Minister not only to condemn them but to warn Israel that if it adopted them it would be acting as an “apartheid state”.

Prime Minister Cameron, who is one of Israel’s best friends in Europe, has had a great deal of practice evading Kaufman’s anti-Israel barbs.  He demonstrated that experience in his response: “One of the reasons I am such a strong supporter of Israel is that it is a country that has given rights and democracy to its people, and it is very important that that continues.  When we look across the region and at the indexes of freedom, we see that Israel is one of the few countries that tick the boxes for freedom, and it is very important that it continues to do so.”

The Gerald Kaufmans of this world will hate Israel no matter what it does but there are more David Camerons among the leaders of the West than many realize.  There may well come a time when the safety of Israel’s people will compel Israel to handle some issue in a manner that risks alienating some of its remaining foreign friends.  But this is not the time, and the proposed new basic law is not the issue.