Israeli Restoration

On July 9, Israel’s legislature passed “Basic Law: Israel as the Nation State of the Jewish People.” This act was greeted with widespread and ferocious attacks, exemplified by the publication of four caustically critical articles in the New York Times alone. These articles insinuated that Israel had abandoned democratic values and become an apartheid state or ethnocracy.

This criticism has no relevance to the facts on the ground. First and foremost, because the new law, far from changing the nature of the Israeli state, merely reiterates founding principles from the 1948 Declaration of Independence. These principles were felt by the majority of the Knesset to have been watered down during the last decades, by several Supreme Court rulings that tended toward ultra-liberal values.

To summarize: The Knesset passed a law with special constitutional status, stating that Israel is the National State of the Jews, that its resting and holy days are the traditional Jewish ones (provisions are made for non-Jews), that existing remembrance and independence days as well as the national flag will be formally established, that the Hebrew language is the official language (though Arabic is accorded special status), that Israel views Jewish settlement as a national value, and that the Jewish state regards itself as responsible for the material and spiritual welfare of Jews around the world. Each and every section of this law was already extant either in Israel’s Declaration of Independence or in long-established Israeli laws and practices.

Why the outcry, not only in Israel but across the world? At one level, the new law is regarded by liberal opinion as an annoying lapse into old ways, which civilized states are supposed to be abandoning. To accord special status to a language or religion is not at all unusual among even the most progressive states, from Sweden to Canada. But by and large, most political, academic, and media establishments view these privileges as curious relics of a previous era, amusing irrelevancies in states that increasingly are local versions of a universal social contract. Even the very idea of the nation-state, though not usually denied in principle, is gradually being diluted and subordinated to supra-national institutions such as the European Union. In the U.S., too, an emerging conception of rights is tending against particularism. Not surprisingly, then, every case where a nation seems to assert particularism and national character—be it a U.K. referendum, a U.S. election, or the new Israeli law—is furiously labeled by the liberal media as a dangerous relapse into barbarism, fascism, and racism.

But in the case of the Jewish state, there is an additional reason for the stridency and vehemence of the protests. It is a cultural anti-Semitism with its roots in the Enlightenment, which has long poisoned progressive opinion. Jewish particularism is viewed as a—even the—chief obstacle to universalism. Figures such as Voltaire and Kant, and many lesser lights, could accept that unenlightened individuals and groups clung to their particular ways, for they trusted that it was only a matter of time until such relics of the past would be swept away. The Jews were a different case. With a coherent view stubbornly committed to particularism, they were not misguided errants but unrepentant sinners against enlightenment, and so deserving of special odium. Jews willing to jettison all their traditions were to be welcomed into the fold of the enlightened, but those who refused to do so were regarded as willing servants of darkness. These Jews added insult to injury when they not only retained their traditions in the diaspora, but actually returned to their land—obdurately marching against the purported arrow of progressive history. If the Jewish national project succeeds, the whole dogma of an inevitable, enlightened, universal order is put into doubt.

To those unfamiliar with the Israeli constitutional system, the passing of the new Basic Law seems very different from the constitutional practices and debates that we witness in America. Constitutional dynamics in Israel are more akin to British constitutional practices than to American ones. Instead of a single constitutional document, enacted at a particular time, the British and Israeli constitutions consist of an accretion of Fundamental (in Britain) or Basic (in Israel) Laws, gradually making up the constitutional framework that regulates positive legislation and judicial review.

In the U.K. (and earlier in England), this has ever been the practice. In Israel in 1950 (two years after independence), the young state resolved that instead of setting up immediately a full constitution, the Knesset would legislate separate Basic Laws, each intended to be a constitutional chapter. Eventually, “all the chapters together will constitute the constitution of the state.”

But it is crucial to bear in mind that, in both the U.K. and Israel, this process is not regarded as an inventing of new laws, but rather as a reiteration of existing, fundamental principles of the state. All of the great English (and later British) constitutional documents, such as Magna Carta, the Petition of Right, and the Bill of Rights, explicitly state that they are mere restatements of traditional laws and liberties. In Israel, all Basic Laws are regarded as expansions and reformulations of the founding principles appearing in the Declaration of Independence, which itself appealed explicitly to the principles of Jewish history and the Zionist movement.

Such an outlook is not universally embraced. More radically inclined nations see no problem with repeatedly jettisoning their constitutional heritage in favor of some novel (and allegedly perfect) one. The French seem to revel in it, and as a result they have run through at least three monarchical, two imperial, two authoritarian, and five republican constitutions in a little more than two centuries. More traditionally inclined nations, such as Britain and Israel, prefer to stick with their old constitutions, altering a paragraph or sentence as necessary. In such countries, when a drive for reform becomes too radical, there will be a traditionalist pushback, which corrects the constitutional course in accordance with the old principles. The most famous instance of this in British history is known as the Restoration, which after an eleven-year hiatus caused by civil wars and a regicidal military dictatorship, reinstated in 1660 the traditional constitution.

And despite the differences, America’s constitutional history has more in common with Britain’s than with France’s. The American rebellion against the British crown started as a movement to restore the traditional rights of Englishmen enjoyed by the colonists. The dynamics of the war resulted in the Declaration of Independence and a first constitution (the Articles of Confederation), both of which departed sharply from the British constitutional tradition. But eleven years after independence, as the revolutionary drive had revealed its full destructive potential, a constitutional convention by and large restored the British constitutional principles upon which the colonies had been founded. (There were, however, some significant changes, and not for the better—instituting slavery and separating church from state.) Even the American Civil War should be regarded as the fight led by Lincoln to restore the Constitution and its founding principles, against the Southern states that had risen against it.

In Israel, the last twenty-five years have witnessed some rulings of the Supreme Court eroding the founding national principles enunciated in the Declaration of Independence. After the passage of two Basic Laws in 1992, on “Human Dignity and Freedom” and “Freedom of Occupation,” Justice Aharon Barak proclaimed a “constitutional revolution.” Starting in 1995, the Court headed by Barak as Chief Justice, started to strike down laws deemed unconstitutional (though nowhere in any Basic Law does it say that the Court is entitled to do this). The tendency of these strikedowns soon became evident, as they neutralized the ability of the state to further Jewish national causes, while allowing collective affirmative action for minorities. Thus, for example, the Court ruled that an Arab can purchase land in villages that were established by the Jewish Agency with the express goal of preventing areas from remaining populated only by Arabs (and thus potentially encouraging irredentism). Yet the Court ruled that a Jew cannot purchase land in a Bedouin Arab village. The Court effectively indicated that though the state was allowed to establish new villages and towns intended for particular minority groups (like Bedouins), it was not allowed to do so when furthering Jewish national goals. Most Israelis see such views as tending toward radical theories of the state, rather than traditional Zionist values.

The Israeli Declaration of Independence enshrines the collective national rights of the Jews in the Jewish state—but as for individual rights, political or civil, those are equal for Jew and non-Jew alike. Indeed, a fundamental feature of the Israeli state and constitution is its intensely democratic character. Since 1948, even during times of war, the civil and political rights of all, as well as access to courts (including the Supreme Court), have ever been upheld. Moreover, the Basic Laws may be overturned by a simple majority of Knesset members. Nothing in Israel resembles the various regulations in the U.S. formerly restricting voting rights, or the laborious process necessary to amend the Constitution. The Jewish state was created with the express goal of furthering the national aspirations and goals of the Jewish people (much of it still residing outside of the state), while at the same time carefully defending the individual rights of its non-Jewish citizens.

Thus, the new Basic Law is regarded by the majority of the Knesset as a formal restoration of several principles that are explicitly stated in the Declaration of Independence, and have been part of Israeli law and practice since 1948. The new Basic Law would have drawn fire in any formulation, due to its national and traditional values, which liberals resent in principle. But for many of the latter it is especially galling that—yet again—it is that most stiff-necked Jewish nation that forestalls the long-awaited new age of truth and peace.

Ofir Haivry is vice president of the Herzl Institute in Jerusalem and author of John Selden and The Western Political Tradition.

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