DEFINING ISRAEL: THE JEWISH STATE, DEMOCRACY, AND THE LAW: Reviewed

Defining Israel: The Jewish State, Democracy, and the LawIn July 2019, Israel’s legislature, the Knesset, passed a Basic Law called “Israel— The Nation-State Law of the Jewish People.” For some, the law was the most consequential piece of legislation in recent memory. For others, it was an insignificant confirmation of the status quo. Some saw it as an intensification of discrimination against Israel’s non-Jewish citizens, particularly Palestinians of Israeli citizenship, while others saw it as a long-overdue affirmation of Israel’s Jewish character. The debates surrounding the legislation are a window into some of the most complex aspects of contemporary Israel. In accordance with UN Resolution 181, Israel’s Declaration of Independence of May 1948 mandated that Israel enact a constitution by October of that year. The reason that a constitution was never written is contested by scholars, but most agree that a key factor was the difficulty of finding consensus among Israel’s fractious population. In 1950, the Knesset passed the so-called Harari compromise, according to which the constitution would be “compiled one section at a time”. For decades, piecemeal snippets of constitutional legislation passed into law with little controversy or fanfare. Things changed in the 1990s, however, with the “Basic Law: Human Dignity and Liberty (1992),” which incorporated a series of human rights into Israeli legislation and introduced a new term into Israeli legal discourse by determining that the state should be “a Jewish and democratic state.” The law took on particular significance because Aharon Barak, then the Chief Justice of Israel’s Supreme Court, used the law and others like it to inaugurate what he called a “constitutional revolution,” introducing American-style judicial review to the Israeli legal system. The meaning of the terms “Jewish” and “democratic”, and the relationship between them, has been the focus of persistent debate in Israel for close to three decades. Barak’s court focused heavily on the “democratic” side of the equation, using the basic laws to protect the human rights of both Israeli citizens and Palestinians in the Occupied Territories (though some have argued that the court did not go far enough in defending the latter). Barak’s court tended to understand “Jewish” as a legal value as a synonym for “freedom, justice and peace as envisaged by the prophets of Israel,” a phrase from Israel’s Declaration of Independence, rather than a call either to incorporate Jewish religious law into Israeli legislation or to bolster the state’s ethno-national identity. Since the early 2000s, some elements in Israeli politics and society have pushed for Israel’s “Jewishness” to have a more substantive role in the life of the state. (Indeed, some right wing candidates in recent Knesset elections have stood on a platform of reining in the “liberal activism” of Israel’s judges, even though the approach of the court has changed significantly since Barak’s day). Others have resisted this trend. As a result, Israeli legislators, intellectuals and NGOs have produced a ream of constitutional proposals, position papers and vision statements, which set out diverse positions on the relationship between Israel, Judaism, and between its citizens of different ethnicities and religions. Defining Israel is the story of this complex debate and its wide-ranging consequences. There are really three books here, each of which will appeal to a different kind of reader. An extensive introduction by the editor, Simon Rabinovitch, offers a fine overview of the history of the Nation-State law from various angles. It deals in detail with the role of Israel’s tangled partisan politics in the production of the law. It also situates the law in Israel’s longer-term civic debates. Crucially, it includes a section comparing constitutional developments in Israel with those in other countries, including Eastern Europe and various Islamic countries, in which ethnicity and religion pose analogous, though obviously not identical, challenges to questions of civic identity. The editor has included a well-organized selective bibliography of further reading on the topic. It is not, and does not claim to be, exhaustive, and will be particularly useful for scholars embarking on the topic, or those looking for convenient English language teaching resources. About a quarter of the book comprises legal documents. These include the Nation-State law itself and nine previous legislative proposals that were rejected or amended to produce the final product. These legal documents will be especially helpful for scholars of religion, law, political science, or history, who want to analyze these primary documents in depth but do not have facility with high-level Hebrew. Comparing the documents would also be an interesting exercise for undergraduate or graduate students in the relevant fields. Also included is a report by Ruth Gavison, one of the state’s most respected legal academics. Gavison was commissioned by the Israeli government to investigate the question of whether and how to establish Israel’s constitutional identity in law. She recommended against doing so on the basis that, whereas “debate and discussions concerning interpretations of the shared vision [of the state] are inevitable, desirable, and contribute to the freedom and openness of society,” (p 42) nevertheless, “questions of vision are not legal questions, and should not be decided by law or in courts” (p 43). (Clearly, this recommendation was ultimately ignored). The bulk of the book comprises a diverse series of fifteen reflections on the law. It concludes with two interviews with Israeli politicians, Tzipi Livni and Ruth Calderon, each of whom proposed their own drafts for this piece of legislation and who opposed the version that was ultimately passed. The contributions are primarily from Israeli scholars, politicians and public figures, with the addition of some American voices. Only a brief overview is possible here. A minority of the writers condone the law. Among other things, they think of the law as a way to balance Israel’s commitment to equality with a commitment to Jewish values (Moshe Koppel) and as a tool to defend Israel against its detractors, including “the Palestinian national war against Israel” (Amnon Lord), and point to the consistency of the Nation-State law with widely accepted strands in western political thought and the thought of the Zionist founders (Yoram Hazony). Most of the reflections, however, criticize the law. They consider it “anti-Zionist” because of its departure from the values of the Zionist founders (Israel Bartal), a misguided response to the “psychological difficulties” of Israelis facing “the reality of decolonization” (Nahum Karlinsky), and a betrayal of Jewish values of social justice (Michael Marmor). David N. Myers disagrees with the argument that the law mirrors similar constitutional arrangements in other countries and concludes that it “places Israel beyond the pale of countries with similar or less robust democratic cultures” (p 191). Ze’ev B. Begin, who himself proposed an earlier draft of the law, nonetheless objects to its final version for, among other things, omitting any mention of equality. Two of the writers are Arab citizens of Israel. One (Amal Jamal) sees the law as the outcome of a new ultra-nationalist “Neo-Zionist hegemony” that undermines Israel’s democratic principles. The other (Yousef T. Jabreen) writes that the law enshrines the exclusion and segregation of Israel’s Arab minority and “moves Israel one step closer to an apartheid system” (p 263). Some of the writers place the law in wider contexts of different kinds, including the historical difficulty of finding constitutional consensus among Israel’s Jewish majority (Nir Kedar), Israel’s diverse religious Jewish communities (Kalman Neuman), Israeli legal discourse (Gideon Sapir) and the search for meaning against a global decline of liberalism (Yehudah Mirsky). Tanya Zion-Waldoks, a scholar who is a self-described Orthodox Jewish feminist, concentrates on the question of gender. She challenges those, like Gavison, who would prefer the Jewishness of the state to remain undefined in law so that it can be deliberated in a bottom-up fashion in civil society. This perspective, she asserts, overlooks the fact that Israel already enforces a certain version of Jewishness through the significant power of its official Orthodox rabbinate, thereby “enabling a coercive extremist gendered regime” (p 200). The book has certain quirks. Its composition belies its origins as a forum in The Marginalia Review of Books. Reasonably contending that there was no way to divide the contributions into clear categories, the editor has thrown them together in what he calls a “tossed-salad approach” (p xvii). This makes them enjoyable to peruse, but presents a challenge for readers who want quickly to identify particular perspectives. The reflections have disparate styles. Some are scholarly, others polemical, still others journalistic. Most of the scholarly voices come, unsurprisingly, from a handful of disciplines (mainly history, political science and law). Despite the editor’s obvious efforts to achieve a measure of balance in this supremely contentious terrain, the center of gravity of the book lies with more or less moderate liberal voices and the significant majority of the contributors are Jews (though Jews who, to be sure, have very different views). Notwithstanding these features, this book is the best (and, I believe, the first) English-language treatment of a pivotal moment in Israel’s legal history. It is vital reading for scholars interested in recent developments in Israeli society, politics, or law, and offers indispensable context of a key dynamic in the relationship between Palestinians and the State of Israel. It is also instructive for scholars of comparative constitutional law and scholars of religion, particularly those working on the various understandings of Jewish identity in the modern world. Finally, anyone trying to make sense of the recent global resurgence of ethno-nationalism would benefit from this work.