The Nationality Law: Can Jewish and Democratic Forever be Equal?

The proposed “Jewish State Law” has a major conceptual flaw. It simply assumes that Israel can be both Jewish and democratic.  As Prime Minister Netanyahu phrased it, “There are those who want democracy to take precedence over Judaism, and those who want Judaism to take precedence over democracy. In the draft law that I am bringing, both principles are equal and must be given equal consideration.”

Sounds lovely, but can they really be equal forever?

The “peace camp,” as they call themselves, urges the two-state “solution,” contending that Israel cannot be both Jewish and democratic when 1/3 of the population is Arab (even if we assume, as they do, that the Arabs do not want us either dead or even out of the land). They argue that, in order to be both Jewish and democratic, it is necessary for Israel to divest itself of the main Arab population by giving them a state of their own, living side by side at peace with Israel.

The supporters of the proposed law, which has no name, but I will call them the “nationalist camp” says that the Arabs have more than amply proven that such a state will not exist side by side at peace with Israel, that if there is a “Palestinian” state at the “Green Line,” Israel will not be able to remain a state at all. Israel will be indefensible and will be overwhelmed by the Arabs, who will then slaughter the Jewish population of the country as we see being done to non-Muslim and non-Arab peoples throughout the Arab world.

What if both are right? What if the choice is between a democracy for the Jews alone and inferior rights for the Arabs, on the one hand, which the “peace camp calls “Apartheid,” and, on the other, subjecting ourselves to the very real possibility of annihilation by the Arabs?

What if both are right? What if we have a choice, not between “peace or apartheid,” as Jimmy Carter has so glibly and deceptively characterized it, but rather, between “apartheid” and annihilation? Either Jewish or democratic will have to prevail. They cannot be given equal consideration.

For twenty years, the two sides to this dilemma have assumed the other side away. The time to choose has arrived and each side must address the argument of the other.

The “peace camp” must explain why it is so certain that an Arab state at the Green Line would live at peace with Israel that we can safely put our necks and our children’s necks on the block with the Arabs holding the ax. If the “peace camp” cannot, then they will have to explain how Israel can defend itself if their goal of a two state solution is realized and their opponents turn out to be right, as they have been for the last twenty years.

The “nationalist camp” must explain how Israel can avoid becoming a binational state but can remain both Jewish and democratic when a third of its population consists of Arabs, who consistently vote for parties that want the Jews dead, out of the land or at least reduced to the status of dhimmi. If the “nationalist camp” cannot answer that, then it will have to justify unequal rights based on religion or ethnicity.

As the law is written, the decision will end up being made by the judges, over whom the people have no democratic control nor even the ability to influence them. Is that the intent of the proponents of the law?

Ladies and Gentlemen, Members of the Knesset, you can no longer hide behind platitudes and bromides. This is decision time.

About the Author
Ya'akov has practiced law in New York, California and Israel for a multi-national clientele including Israeli NGO's. He was a professor of law in the US and has contributed numerous opinion pieces to various media outlets.