No way to build a constitution

In saying nothing about minority groups, Israel's Nation-State law is out of step with most countries' constitutions
Copy of the cover of the US Constitution (via iStock)
Copy of the cover of the US Constitution (via iStock)

Imagine that the recently passed Nation-State Law, which defines Israel as the nation-state of the Jewish People, had opened with the following declaration: “The State of Israel is the nation-state of the Jewish people and the state of the members of its national minorities.” Make no mistake: this text is not taken from a new proposal to amend the law being advanced by some left-wing fringe organization, but is rather a translation and application to the Israeli reality of the first section to the constitution of a nation-state par excellence — Croatia.

The fierce public debate over the Nation-State Law has focused, and rightly so, on the law’s reference – or lack thereof – to the principle of equality of all civilians before the law celebrated in the Declaration of Independence, and on its disruption of the delicate equilibrium between the country’s Jewish attributes and its democratic character.

Israel is indeed the only Jewish state in the world, but not the only nation-state. A comparison with the constitutions of other nation-states – countries that see themselves as expressing the right to self-determination of one particular population group – underscores the extent to which the Nation-State Law is unusual in its failure to acknowledge minorities in Israel, and their collective rights and interests. Along with affirming the dominant status of the majority in the definition of the nation-state, the constitutions of other nation-states  emphasize, the fact that other ethnic groups residing within them constitute part of the state, and that the state has a responsibility to provide for their needs as individuals, and no less so– for their needs as collectives.

Beside Croatia, we can cite other nation-states, such as Hungary, whose constitution affirms that “the nationalities living with us form part of the Hungarian political community and are constituent parts of the State”; and alongside the recognition of Hungarian culture– stipulates that the “nationalities living in Hungary shall have the right to use their native languages and to the individual and collective use of names in their own languages, to promote their own cultures, [to] be educated in their native languages, [and to] have the right to establish local and national self-governments”. In the Ukraine as well, the state is obligated to foster the identity of the Ukrainian nation, but also that of minority groups.  And then there are the constitutions of other democracies that are not ethnic nation-states, such as France, with its commitment to “Liberty, Equality, Fraternity,” and the United States, which guarantees “equal protection of the laws”, and rejects the notion of preferential legal treatment to any one religion. In fact, the concept of equal rights for all citizens and the legal irrelevance of their ethnic origin are so strong in the latter countries, that they encounter legal difficulties in developing special programs designed to assist members of underprivileged ethnic or religious groups, such as affirmative action programs, since the latter are viewed by some as incompatible with the principle of full equality for all.

The Nation-State Law is an outlier among constitutions the world over in that it says nothing about the relations between minority groups and the state and makes absolutely no attempt to balance the state’s undisputed obligation to promote the interests of the majority with its obligation to promote the interests of its minorities. Article 1 of the new law defines Israel only as the nation-state of the Jewish people and— unlike the constitutions of other nation-states—makes no attempt to find a way that would enable members of minorities to feel that they are part of the state and that the state belongs to them as well. Articles 5–7 commit the state to promoting the interests of the majority with regard to Jewish immigration (aliya), the ties to Diaspora Jewry, and the establishment of Jewish communities throughout the country. But—again in contrast to what is standard in other democratic countries—no parallel obligations are laid on the state to promote the interests of its minorities. In fact, the only place in the law that relates to these interests—the use of the Arabic language—actually downgrades its status from official to ‘special status’ language.

Laws do not merely stipulate what is permitted and what is forbidden. They also create a narrative—an account of the life of a society. Israel’s Basic Laws, and all the more so a largely declarative statute such as the Nation-State Law, are intended to lay down the foundational principles on which the state is based and to serve as its constitutional identity card.  How sad it is that what the founders of Israel understood in 1948 when, in the midst of a desperate war and at a time of deep existential anxiety, they composed a balanced document such as the Declaration of Independence, and that what was clear to the authors of the constitutions of Eastern Europe who had just emerged from non-democratic systems of governance, was beyond the ken of those who drafted Israel’s Nation-State Law: It is impossible to base a just society governed by the rule of law on a foundation which  excludes a significant portion of the population from having a fair share in the country’s identity. In its present form, the Nation-State law poses a severe threat to Israel’s future and to the survival of the Zionist enterprise as a just and democratic platform for realizing the Jewish right to self-determination.

About the Author
Professor Yuval Shany is a senior fellow in the Israel Democracy Institute’s Center for Security and Democracy and a member of the Faculty of Law of the Hebrew University of Jerusalem.
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