Simon Rabinovitch joins us to talk about Israel’s nation-state law and his volume Defining Israel: The Jewish State, Democracy and the Law—the origins, development, and ramifications of Israel’s nation-state law, how we can contextualize it, and try to understand its importance and meaning for the ongoing debates over the character of the state of Israel.
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Simon Rabinovitch is an assistant professor at Boston University. In addition to Defining Israel, his books include Jewish Rights, National Rights: Nationalism and Autonomy in Late Imperial Russia, and the anthology Jews and Diaspora Nationalism, published as part of the Brandeis Library of Modern Jewish Thought.
An edited transcript of our conversation follows.
Jason Lustig: I think that the nation state law, which is what this book is about, has really profound ramifications and it’s really significant. There’s so much to talk about. It’s really exciting to see, also, the book that came out so soon, just after the law itself was passed. I know you basically had to re-do the book from scratch, almost, in order to make it happen. I think it’s just really great that we can talk about it. I think one place for us to start is to think about the law itself, especially since I’m sure that not everybody has actually read the text of the law. We know we might have read some of the commentary, some of the news that that has surrounded it, some of the controversies as well. Do you maybe want to start us off by talking a little bit about what actually is this law, this nation-state law?
Simon Rabinowitz: Sure, the nation-state law is a law that is intended to clarify what the identity of the (Israeli) state is and give constitutional grounding for a number of existing laws that were on the books about symbols and, like I said, the identity of the state, and to introduce new stipulations or new articles that, at least for those who wrote the final version of the law, were intended to create a balance between individual rights and the collective rights of the Jews within the state of Israel and the meaning of the state itself.
JL: You’ve said a little bit about sort of the objectives of this law to create a kind of constitutional framing for a whole bunch of things that already exist. What’s the significance of this being a “basic law,” especially when we talk about the fact that Israel does not have a constitution?
SR: So that’s a great place to start, the context for the basic laws in general and this basic law in particular. Israel does not have a constitution. As a sort of compromise, there was a proposal that a constitution would be written essentially ad hoc. And in place of writing a complete constitution, there would be a constitutional committee that would suggest pieces of a constitution bit by bit, and then they would be passed by a simple majority within the Knesset, but they would have constitutional grounding. Those would be called basic laws.
Most of the basic laws for the first 30, 40 years of the state were about how the state should function. And it wasn’t really until the 1990s when two basic laws were passed that were part of, I suppose, a turn to the idea of human rights and individual rights within international law and within European law and had to do with basic liberty and dignity that were more in the genre of what the individual human rights were of citizens of the state—but crucially, they also included language in their preambles about Israel as a Jewish and democratic state. And those laws, the two laws on human dignity and on freedom of occupation, were interpreted by the Supreme Court and in particular the supreme court’s president at the time, Aharon Barak, as a constitutional revolution, putting Israel’s basic laws and its constitutional framework on par with that of other liberal democracies. And therefore, as Israel’s justices interpreted decisions and laws and their constitutionality, they had to measure the constitutionality of the laws against the democratic needs of the state and the individual liberties that were outlined in these laws. I suppose unsurprisingly, many sconservative saw this as the beginning of a period of extreme judicial activism or liberal judicial activism that required a response.
JL: You’re saying that that when you look at the political contexts, it’s kind of a response to the interpretation of these laws, which are on the books.
SR: That’s exactly right. The laws were passed with fairly little controversy, but yes, the, the really controversial element was their interpretation by the Supreme Court, in particular in a couple of key cases, one of which was called the Katzir case, or the Kaadan case (in 2000), which was about the right of an Arab family to build a home on a plot it had purchased in a moshav. And the Supreme Court reaffirmed that right, and this created a considerable backlash among people who felt that the state was prioritizing these individual rights at the cost of Jewish national interests and the Jewish character of the state and its key institutions.
JL: In that particular case, you’re talking about a community that was exclusively Jewish, and didn’t want a non-Jew to be purchasing land there. Which gets to some of the ways in which this new law is established in such a way as to not necessarily just, as you say, protect or prioritize the “Jewish” aspects of the state, but also to exclude many people from their own rights as well. So it becomes a very complicated, very quickly.
SR: Yes. It does indeed. I think similar to the basic laws of the 1990s, where their significance came to be in the interpretation by the courts rather than specifically what they said in the law—the same is true with the nation-state law, where we’ll see what its significance is, in he future, as interpreted by courts more than what it’s actually changed on the ground. But, in response to this sense of people who felt that the courts had gone too far in the direction of prioritizing the individual rights of citizens within the state at the expense of the Jewish collective, there was a new wave of impetus to actually create a constitution, to sort of finalize a constitutional document for the state,
JL: A single constitutional document, as opposed to a collection of laws.
SR: Right. And this was a wave that emerges in the 2000s, with some think tanks within Israel, and some non-government organizations. And in parallel to it, there is a wave of constitutional writing or constitution drafting by Israeli Arab non-governmental organizations that are seeking an almost mirror image of these constitutional proposals, in constitutions that highlight strictly the individual rights of the citizens within the state. But just like in the late ’40s, in the 2000s also, there’s no level of support for the kind of conflict that a real push to create a constitution would create, if the state would have to then determine the relationship between the religion and the state and all sorts of other controversial elements that would create major political crises.
JL: I think it parallels a much longer history, where you can see again and again, very complex issues of conflict are put off—whether we talk about the status quo agreement in 1947, which basically says, we’re not going to deal with this question of the relationship between state and religion, we’re just going to kind of let it be; or you talk about the Oslo accords in the entire peace process, which is built upon this foundational idea that you take the most complex issues, the final status of Jerusalem, and you push it off to the very end. Right? And here, this is exactly the same thing.
SR: Yes, exactly. Until somebody came along with an idea for how to, perhaps, deal with the issues that were bothering people the most without having a constitutional showdown, to encapsulate the essential elements of what people wanted in a constitution, or I should say what certain types of people wanted in the constitution, to propose that in the form of a basic law. That was submitted by a computer scientist, a professor at Bar Ilan University, to the Knesset’s constitution committee, and then sort of sat there for a number of years before it was taken up by a couple of champions who decided that this was a good idea and that they would write their own versions.
JL: What’s interesting is, you have people on all sides of the political spectrum getting involved in this debate about the idea of creating a constitution, ranging from the far right to the Israel Democracy Institute to, as well, as you mentioned, some of the Arab parties. What’s interesting about this is that it represents the victory of a particular set of parties, of the right wing in particular, to get this law passed. But it’s part of a much bigger conversation.
SR: That’s absolutely the case. I wouldn’t say that the question of whether to finalize a constitution ever went away in Israeli politics, but there’s no doubt that in the past eighteen to twenty years, this debate has become much more acute. The reasons for it, I think relate to the perception of judicial activism in some circles, the failure of the Oslo agreements, and the fact that the major political and military and, arguably, existential problem of the state’s boundaries and its relationship to Palestinians was not resolved. I don’t think it’s any coincidence that this really gained steam in the wake of those failures and during the second Intifada, when, yes, you had on both sides a desire for supporters of this kind of law to legitimate their claims to Jewish national statehood, and, yes, the Arab alternatives to propose something else, to produce an alternative vision.
You know, I don’t know if it’s ironic or not, but those visions, the idea of a state for all its citizens or the idea of a denationalized civic state, became much of the engine and the impetus for the final nation-state law, and that as was articulated by its supporters—that the alternative that others wanted was something that stripped Israel of its “Jewish” meaning. Sometimes this boogie man of the fear of the denationalization of the state can be slightly ridiculous. For example, when the supporters, and I’m thinking of something that Avi Dichter said after the law was passed, claim that, “now finally we have our flag, finally, we have these symbols enshrined.” And it’s not clear to me how the reality of the de facto nature of the state symbols were being challenged, how even those who prefer a denationalized state, who preferred there not be Jewish symbols as the official symbols of the state, what power they ever had to achieve those goals that it would be a real threat. Even if there were periodic proposals by the Arab parties or Arab non-governmental organizations to make these changes, I think it’s a bit far fetched to say that the symbols were ever under any serious threat.
JL: Right. When you look at this law, one of the things that you notice, and this I think has been a common critique, is that it really doesn’t accomplish much in practical terms. A lot of these things that the law does were basically de facto to begin with. When we think about, for instance, the name of the state and the design of the flag. These seem like small things to put into such a foundational law, in a certain way. It talks about the state of Israel being open to Jewish immigration. Well, they already have a law that does this. They have the law of return, which actually, when they drafted it initially, it was called the law of the ingathering of the exiles, which is exactly what they talk about in this basic law, this idea that Israel will be open to the “ingathering of the exiles.” It takes, kind of, what’s de facto, or what actually is de jure already, and it further enshrines it. So it raises this question, what does it actually do? What is the actual change that is happening by taking these things that are already the case and putting it into this law, and why the supporters of this law felt such a strong need to do these things when it was basically already done?
SR: You’re absolutely correct that much of what’s in the law does not only exist de facto, there are designated laws enshrining their status already. I guess the answer as to why they are in this particular law has to do with what the drafters of the various versions of the law envisions should be in the preamble of the constitution. Because that’s really what they’re thinking about. If you were to boil down the essence of the state into a constitutional preamble that exists in lots of other constitutions in other states, what would it look like? And that’s the reason why, among other aspects of the constitutional foundation like language, the relationship between Jews in Israel and the diaspora, why state symbols, the law of return, in various versions, the capital, why all of these are in this basic law on the nation-state, you know, what makes the state the nation state of the Jewish people? Because it’s supposed to be the essence, and to function as a preamble. So there’s a perceived value in restating these and giving them constitutional because they are seen as the pillars of a nation-state.
And I would also say that it’s of course not the symbols that are in particular the most controversial elements of the law. You know, there are certainly people who do take serious issue with the constitutional enshrinement of those symbols. I think, more controversially, are the elements of the law that relate less to symbols than the relationship between the Jews as a people and Israel as a state. Those are intentionally ambiguous within the law, but I think are more controversial, and are also much more what the purpose of the law is, to those who supported it, which is to clarify the relationship between the Jews as a people and the state itself
I would just say, some of these smaller details, some of these stipulations, if the purpose is to create balance, if the idea is, as Ayelet Shaked, the current justice minister said is the purpose of the law, to give justices a toolkit which they can use in making their decisions, actually the various stipulations or articles on the flag, Hatikvah, etc., are really much less important than the more ambiguous language in clauses about the relationship between the Jews as a people and the state of Israel.
JL: It’s interesting, because if the proponents of such a law did so in response to what they saw as judicial activism, they are creating tools for more judicial activism. It’s the same, just in a different direction.
SR: Does this sound familiar to you at all? Yeah, I mean, there’s no doubt that’s the case. That’s, of course, not how they frame it. They framed this as a matter of balance and as restoring a necessary balance after a period of imbalance. We’ll really only know what the significance of this law is after a period of time, when justices have used it to interpret other laws and other decisions.
JL: Part of what’s going on here is that the crafters of this law want to shift the way in which judges interpret other laws. If the basic law says that Israel is the nation state of the Jewish people, that will affect how they rule on many, many cases. There’s a long term implication. And when we talk about, historically, this question of what does it mean for Israel to be a “Jewish state,” there is no answer to this question. So when they say in the law that Israel is the nation-state of the Jewish people, that can have any number of different meanings.
SR: Absolutely. it can. I mean, I do think that the language in the law, and even its most controversial clauses, is intentionally ambiguous and can and will be interpreted in a lot of different ways.
JL: What would you say is the most controversial statement in the law?
SR: Well, I think that the answer is probably different in Israel and in the rest of the world. In Israel, I’d say that the most controversial clause had to do with the relationship between Hebrew and Arabic as official or non-official languages, and perhaps the clause on Jewish settlement. In the rest of the world, it might have been the article making stating that Israel is uniquely the place for the self determination of the Jewish people. That was not an article that was terribly controversial in Israel, although I suppose with the significant exception of the Druze minority. Funny enough, it is not that much of the Arab minority favored the idea that Israel was uniquely a place of Jewish national self determination, but rather it affirmed what they already knew. Whereas for the Druze minority, I think that there was a sense of betrayal. I would, again, say that I don’t think that that was a particularly controversial clause within Israel. But it certainly has caused great concern in terms of how the law has been received in the rest of the world.
JL: The question of self-determination is critical. If we try to put this law into its broad historical context, not just of the history of the state of Israel, but the history of Zionism and the history of nationalism, I think this makes a profoundly important statement in terms of the way in which non-Jewish groups can interact with the state. If you look at the history of political Zionism, going back to the nineteenth century, the goal is national self- determination in a Jewish state, however that is defined. If that is taken as a foundation of nationalism, one way that that political nationalism aims for self determination in the form of a nation state. And here, this law says self determination in Israel is, and I’ll quote, it says that it’s “uniquely that of the Jewish people.” Then what does it say, then, about the non-Jews who live in the state of Israel, whether you’re talking about the Arab population in the state of Israel or in the occupied territories, and their inability, essentially, as a result of this law, to have self determination? Does this law, in one way that it’s interpreted, make the need for a Palestinian state ever more pressing because it basically enshrines in the law a two-tiered system of citizenship?
SR: It’s funny, because this is a question that I was very interested in based on my own past research, and my future research, relating to Jewish national rights and Jewish collective rights in the diaspora. There are interesting parallels between Jewish demands and Jewish historical experience in the diaspora and how the Arab minority might interpret the meaning and the purpose of this law. In terms of the very purpose of this particular article, like I said, for many Israeli Jews, it’s not controversial because it’s simply self-evident. I would say, for the mainstream right’s response, this gets to another major purpose of the law itself, besides the judicial activism piece. But if there are those in the world and within Israel who are trying to delegitimate the unique self determination of the Jews, then there is a need to put on paper that the self determination of the Jews within the state of Israel is uniquely theirs.
This is a response to both efforts of the Arab minority within the state to attempt to denationalize the state, and the questions over the legitimacy of a Jewish national state by people in the diaspora. So, I asked Tzipi Livni in our interview about this exact question, which is why go out of one’s way to specify that the Arab minority essentially does not have collective rights, that national self determination is restricted to Jewish citizens alone? And I precisely asked this question about, what about areas such as in the West Bank where Jews and Arabs are living essentially amongst one another but one set has citizenship and the other does not? Her response is that, yes, this is part of the purpose of the law, and why it’s important to reach a two state solution is so that essentially this can be clarified and that each state serves a purpose in terms of the rights of national self determination and fulfilling each’s rights to national self determination. And then, we can consider what the rights are of the minority in the other state.
But yes, I do think that on the one hand there’s an intentional exclusionary element here, to put on paper that others do not have the right to national self determination. And again, you know, one could say that this means the Arabs can’t have autonomy, can’t have various forms of collective rights. But it’s very ambiguous. What does national self determination mean? As it stands, all sorts of minorities within the state of Israel have various different kinds of autonomy and various different kinds of collective rights, which one could characterize as national self determination. But I don’t think that anybody is going to roll back those rights because of this particular law.
JL: I think it’s very interesting, you brought up your other work on minority rights, on the diversity of Jewish nationalism, when we look at especially the first few decades of the twentieth century. Because I think that if we take this law and we transpose it, historically speaking, and we say: Okay, what if Poland in the ’20s had passed an equivalent law, that said that Polish was the national language, self determination was only for Poles—there would have been a lot of Jews, both Zionists and non-Zionists, who would have taken up opposition to it because they were a national minority within that state, or any other European and especially Eastern European state in the interwar period where this national minority question was playing itself out. It raises a lot of questions about the historical perspective, which was part of this debate or not part of this debate, as it took place over the past few years.
SR: Absolutely. And I mean, ironically, Poland did create such a law. And I think that the main interest of Jewish politics in Poland at that time was to secure both civil equality and some form of enshrined collective rights and rights to national autonomy. But yes, it’s not surprising that when Poland passed similar laws, it passed its own constitution in 1921, that Jews were very sensitive about clauses that were seen as exclusionary, but actually interpreted a number of clauses on the rights of religious minorities as creating a space for their own autonomy and for their own self determination. And I think that that’s one of the problems with the clause. On the positive side of things, like I said, the term national self determination is very ambiguous and there’s still an enormous amount of space for minorities within the state to pursue their own forms of collective autonomy, collective identity, and even national self determination. I don’t think that the door to that has been closed by this law.
Arguably, probably within Israel the most controversial clause was about the relationship between Arabic and Hebrew. The language of the law itself, in essence, makes Hebrew the official state language and states that Arabic has a special status that’s protected by the law. Of course, this was controversial among people for whom Arabic is their first language. The supporters of the way the law was actually phrased say, well, this is actually a form of collective rights for the Arab population. For the first time we have a constitutional document that has enshrined the rights of Arabic speakers, just not as the official language. And I would be the first to suggest that that matters. And you know, we haven’t gotten to the emotional impact of this law, but if we’re talking about why this law matters now, what its practical impacts are before we reached the stage of judicial interpretation, I think it’s made a significant emotional or psychological impact (for) a significant portion of the citizenship of the state of Israel.
But this was an area where much of the Jewish public saw a value in an equal status between Arabic and Hebrew within the state. And, ironically, the supporters of the law argued not only had they not lessened the status of Arabic within the state, but that they had actually enshrined constitutionally a collective right of Arabic speakers. And this is the same document that says that Jews have the sole right to national self determination.
There’s a lot of intentional ambiguity here. I will say just one thing on the, the question of the sole right to national self determination. Where there may be a more problematic underlying motivation is if the purpose is to establish a constitutional foundation for Jewish national privilege in a context in which parts or the whole of the West Bank were annexed. This is not generally stated as the purpose of that particular clause by those who support the law. However, certainly by detractors of the law, it is suspected that that is its real purpose, that in the situation in which the state of Israel annexes parts or whole of the West Bank and in essence had to absorb a large new population of non-Jewish citizens, that no demographic change could undermine the constitutional supremacy of the Jewish identity of the state.
JL: I think that you’re bringing up a very interesting point here, which is the electoral ramifications. One thing that I think about, when we look at the history of the British Mandate, for instance, is that the Mandate document (of the League of Nations) created a fundamental problem for the Palestinian Arab population. As you know, the Mandate had within it the specific mandate for the British to create a Jewish state as one of the outcomes of the British administration in Palestine. One of the practical ramifications of this was that there was a very significant part of the Arab population that did not want to engage with the Mandate administration. So this is where you have the Jewish Va’ad Leumi, the National Council, that gets established, and there is not a successful Arab equivalent because they didn’t want to give their political imprimatur for the Mandate, that had within it an outcome that they were fundamentally opposed to. And so when we talk about the implications of this law, not just the practical aspects of the language, or what is the national anthem, or the status of Shabbat or whatever—part of the question that I’ve been thinking about since the law’s passage is the extent to which this will alienate the Arab citizens of Israel. To what extent will they feel that they have no part in this state? You know, we’re recording this before the election [which took place in April 2019], and it’s going to get, I think, published afterwards. So we’ll see to what extent the Arab population gets out and votes, but it raises, I think, an interesting question of how the state is defined and how that includes or fundamentally excludes certain populations from it.
SR: Oh, I think you’ve gotten to the heart of the matter. That is why I think that sometimes the parties are speaking past one another. For the proponents of the law, they can make this claim that there’s no single item in the law that deprives any individual citizen of any privilege or right that he or she didn’t have before. And so they can claim that the opposition to this law, it either proves, if one is an Arab that you, the Arab, really will never accept the Jewish identity of the state; or for the left—you know, the other sort of slur in Israeli politics now—that you, the left, are not really Zionists, that you would question something so fundamental as the identity of the state. They can make that particular claim. But it of course does ignore, as you point out, the significance of feelings of exclusion. However it affects the particular collective or individual rights, it’s difficult to get past that, how the law is being interpreted.
Similarly, I think that when opponents of the law claim that the law is apartheid and enshrining of the superiority of Jewish citizens and the second class nature of non- Jewish citizenship within the state, they can I suppose fairly point to the fact that this law does make a distinction between the rights of the majority, who identify with this identity of the state, and those of the minority. I think that the real significance in this law is that it’s being interpreted by different groups, legitimately on the basis of their own historical experience within the state. If you already feel that you are a second-class citizen, if you already feel that your rights are lesser, a law enshrining, essentially, the superiority of a particular identity of the majority of the state is going to be interpreted as exclusionary of one’s identity and connection to that state.
If one feels that the legitimacy of the state and the legitimacy of the Zionist project is constantly under attack, then this is going to be interpreted as no big deal. And of course, if one sees oneself as a Zionist but a liberal and believes in a certain degree of multiculturalism and civil quality and everything like that, one will oppose the law on the basis of its lack of balance in that regard. If one is on the right, and believes in the stipulations of the law as the reality and the de facto elements of the identity of the state, and one personally identifies with the state itself, this will just be an affirmation—maybe it was a good idea, maybe it was a bad idea, but it will be an affirmation of that experience. But everyone is interpreting the meaning of this law based on their own history, their own experience in the state.
I think on largely an emotional register that’s actually very important and shouldn’t be neglected. And the language issue is another example where this is really clear. I had a conversation when I was in Israel with someone who said, well, you know, the way it’s written, it doesn’t change anything currently. Most of the conversation in the Knesset, even by Arabic native speakers, is conducted in Hebrew, Arabic does have a sort of special protected status in terms of people’s ability to use it. But officially, the state conducts itself in Hebrew. And I said, you know, that could absolutely be the case, but if one already feels that one’s status as a minority is under attack, any symbolic decline in the rights of one’s language is liable to be taken emotionally as a decline in one’s own rights. I give as an example Canada, which is a bilingual state officially, but in reality tends to operate as a place where English is predominant in some places and French is predominant in other places. If a law were passed downgrading the status of French outside of French Canada, it would have very little practical effect on French speakers in the rest of Canada. But symbolically, it would have an enormous significance, and would be an affirmation to French speakers of their lesser status.
JL: I think one of the big questions going forward is not just the way in which this law will affect things on the ground, but also how it affects the political rhetoric. Just recently Bibi Netanyahu posted something. I think it was on Instagram, in response to somebody else who was saying that Israel is a state of all the citizens. He said, no, actually it’s not because that’s what it says to the nation state law.
SR: This was the Gal Gadot controversy. Yes, absolutely. You brought up the electoral ramifications. The truth, is no matter what happens it’s going to be hard to determine specifically what was because of the nation state law, or what was not because of the nations state law. It looks like Arab participation may go down comparable to the previous election. And I think it would be fair to say that the nation state law played a role in that. Although, there are also so many other factors, it’s very difficult to disentangle, but there is absolutely no doubt that this is an electoral issue. Actually, it could be argued that its purpose was to be used as an electoral issue. Opponents of the law and the center and the left has used a claim of the need to revise it or to retract it as an electoral issue. The right has used that as a club to label these people as leftists who are not committed to the Jewish identity of the state. And Arab parties have used their commitment to fighting for a retraction of the law or fighting it in the court specifically as a way of trying to activate their public. I don’t think that the timing of the passage of the law was in any way coincidental, and I think it’s very reasonable to assume that its actual purpose was electoral politics
JL: Not just in this election, but long term.
SR: I mean the timing for this particular election, I think that there was a desire to create an electoral achievement that could be used as a wedge issue. And many among what are referred to as the Zionist parties, including the center and the left, would have supported many versions of this law and point to the fact that the language that was chosen was chosen specifically not to get their support. People like Yair Lapid have pointed to the fact that the language for the final version was chosen in a way that they could not support it. It reveals the true electoral intentions.
JL: What do you mean? I’m curious what you mean by that, specifically.
SR: Specifically, that language about civil equality and about the democratic nature of the state, that appeared in other versions of the law, did not appear in the final version of the law. Like I said, I think that the perspective of the opponents of the law, within the Jewish or Zionist or mainstream parties, is that this was intentional.
JL: So for instance, there are earlier drafts that specifically say Israel is a democracy, and that’s not in the final version.
SR: Correct. Certainly for many supporters of the law, who believe in the necessity of a law but are also tied to certain liberal principles, this made the law very difficult to support. I mean, one example would be Benny Begin, who also contributed to this volume, who certainly believes in the necessity of the law, but believed that part of the necessity was also to enshrine the democratic nature of the state, and so in the end abstained. And of course the justification for leaving it out was, oh, well we already have this language in earlier basic laws, why repeat it? And I think even more so, if the purpose is to act as a “balance” towards the priority of rights by justices, then to restate that would defeat the purpose of the law itself.
JL: I think it gets to the heart of the book. The title is “Defining Israel.” And so the question, is how is the state defined? Clearly, certain things have been prioritized in this law, and other things have been left out. And if the purpose of the law is to define Israel, leaving out something like Israel is a democracy—that has a very profound ramification.
SR: Well, it depends on your perspective. If you believe that the real purpose of the law is to act as a tool for judicial restraint, you can fairly make the argument that this already exists and there’s nothing in the current law that seeks to roll back the existing rights of individuals. However, if you believed in the project of creating constitutional clarity on the definition of the state, as many people within Israeli politics do, from parties from left to right, then the fact that a document that was intended to create this constitutional clarity left out this key feature, is not coincidental.
JL: I think what’s interesting about the law is that it fits into a whole bunch of different trajectories: historical trajectories, political trajectories, and so on. When we talk about the history of Israel, the history of Zionism, it seems to me that it’s kind of at the intersection of a handful of them. I think part of the claim that’s being made by the authors of this law, it’s supporters, is that this kind, of at long last, codifies this fundamental dream of the Zionist project to create a so-called Jewish state, you know, from Herzl to the present. And, of course, you know, you can say Herzl didn’t really want a “Jewish state.” He wanted a state for the Jews. This is a whole separate set of issues. But one of the ways in which this history has been interpreted, especially in terms of the broad public understanding, is the way that Der Judenstaat has been translated, “The Jewish State.” So that’s one, this idea that this represents a longer history within the aspiration of the establishment of a Jewish state that’s now codified in law.
And then the other half of it, as well, is that there’s a contemporary context, especially if we look at the kind of countries and leaders who Netanyahu has been particularly friendly with. A whole bunch of them, if you look at, Hungary, Poland, some of the other ones as well, are involved in projects of creating an ethnostate, populist exclusionary nationalism. What’s interesting here to me is the way in which these contexts intersect with each other: the global political context, the long history, the way that the history of Zionism has been interpreted or misinterpreted, depending on how you look at it, there’s a very complex set of issues in terms of thinking about the historical and political context of this whole law,
SR: This is an absolutely excellent point. It’s really interesting to me that much of the whole fight over the law came to a head around the time of Herzl day being celebrated in Israel and in the Knesset. The proponents and the opponents of the nation state law used this event to appropriate Herzl for their cause. And in the Knesset speeches, they very explicitly said, you know, it’s so appropriate that we’re dealing with this on Herzl day, because this is—exactly as you said—the embodiment of Herzlian Zionism and the successful “conclusion”—I don’t know if that’s the right word—but another success in terms of articulating a vision of the state that Herzl wanted. And so they linked the passage of this law directly to the Herzlian legacy.
And of course, the opponents of the law made the exact opposite argument, where they said, you know, Herzl would be rolling in his grave. Herzl was for civic quality. Herzl was for the separation of religion and state within the Jewish state. And it’s really interesting how very directly this law became a debate in Herzl day celebrations over the legacy of Herzl in the state and how to properly reflect that particular vision. And one of the contributors to the volume, Yoram Hazony, he has a particular view, perhaps a contrarian view, of the meaning of The Jewish Stateor The Jews’ State. Of course, I might ask why it matters in particular, you know, how Herzl would have interpreted the current state of Israel. But you are absolutely right that the state itself has not worked out the relationship between this movement of revolutionary national liberation, or whatever you might call it, and the identity of the state itself.
And in terms of its connection to other states, I think you’re absolutely right to point to eastern European states for a few reasons, not least because I don’t think it’s a coincidence that those states are also still trying to resolve what they are about as national states that are relatively new, that have been able to create their own national identity relatively recently. Often, you know, the debates over what that national identity should be are also being constructed in relation to what they aren’t. And it’s funny, talking about these other other states, it’s often that the defenders of the law, at least those who are versed in comparative constitutional law, point to other states and in particular eastern European states that have similar types of constitutions and frame the identity of the state in similar ways. Whether or not these are examples that need to be followed is one question. And I think that there are important differences that one ignores in making these comparisons as well. But I think that the similarity is that these states are still working out what their identity is, as national states within a global arena that is ambivalent about this kind of political framework.
JL: You brought up the whole Herzl connection. It highlights the power of this history as a political force, in as much as—my view, looking at it historically, I do think that Herzl would be rolling over in his grave. I think if you read Altneuland, if you read his other works, if you look at his response to the outbreaks of violence, the Kishinev pogrom in particular, the Uganda proposal, so on and so forth. It’s pretty clear, Herzl wanted to state for the Jews. He was not interested in a state with Hebrew as its language. He wanted a state for the Jews, where Jews could be safe from a persecution. It didn’t even have to be in the land of Israel. So, I think that it’s really interesting the way in which this history has played itself out in terms of popular memory and its political ramifications.
SR: I agree completely. And I would go a step further and say that the proponents of this particular law see themselves as ideological descendants of Jabotinsky, the preeminent Revisionist Zionist. And it’s not even clear how Jabotinsky would approach a law like this, seeing as he strongly supported the idea of national minority rights. And I think it would be fair to argue that he would have favored both a rearticulation of the civil rights of individuals and the rights of national minorities. Or maybe not. Who knows?
What I think is remarkable is that Israel as a state is still debating this ideological legacy. And the reality I think is that, you know, people can appropriate various ideological forebears for a variety of political causes and political positions. But the reality is that, you know, whatever this law may do or not do, it’s not going to clarify what kind of Zionist state Israel is.
I feel like we’re running out of time, but we barely even talked about the book. We’re just talking about the law. I do want to talk about the book, though, because I think it’s a really important volume for a couple of reasons. The first one is that it came out so quickly after the law was passed, which provides a really important resource for those who want to think about the law and who want to teach about it in particular, that we can engage with it in a very high level. Part of this is that you’ve included in the volume not just the voices of scholars, but also people who were actually involved in it. So you have your interview with Tzipi Livni, for instance, and a handful of articles, a couple of chapters, by Ruth Gaveson for instance, who was also not one of the supporters of the law in the end, but was very much involved in the debate. And also just that you have the drafts of the law. We can see its evolution over the course of time. So I was wondering if you maybe wanted to comment about the book and its contribution, and what we gain by having the drafts of the law in particular, or having the voices of the law’s supporters and detractors who were involved in the political process, and not just the commentators.
I mean, I guess the volume itself reflects my attempt to provide a service. And that was in the last sort of major moment when it was being debated, people have now forgotten, but it was the premise for the dissolution of the previous Knesset, when Yair Lapid and Tzipi Livni refused to back Netanyahu’s compromise version on the language of this particular law, that led to the dissolution of the coalition. Of course, nobody in Israel actually believed that it had anything to do with that particular debate or that particular law, but it was the premise for its disillusion. And at that time, I was reading in the English-language press coverage of the justification for the end of the government and its collapse and what the nation state law was all about, in those earlier drafts. And, I mean, it really seemed quite obvious that there was a basic lack of familiarity with what was actually in the laws. I happened to have a platform at my disposal at the time, I was a senior editor at Marginalia, which is a channel of the Los Angeles Review of Books. And with the consent and cooperation of the other senior editorial staff, I got the permission to run a forum that was really intended to be a resource for scholars, teachers, journalists, the public, to have first of all have access to the laws themselves as they were being debated, to explain some of the historical context, and to have a sort of variety of views represented.
And, you know, there was a lot of very positive reaction. And mostly the reason for turning it into an academic volume with an academic press was because of people wanting a resource for teaching. It became a sort of living document. As circumstances would change, and the versions of the law would be drafted and the political circumstances would be changed, I would update, I would do the translations, I would update my introduction. I would get new views to contribute, until we reached a point around March 2018, where it seemed that we were at the end and we had gotten all of the views that we needed, and that we had a sort of representative volume about the topic.
And then suddenly, it seemed like the law might pass! And we had the manuscript finished, and the latest version went through a first reading and we put things on pause and waited to see what would happen. And when the law did pass, very helpfully, everybody who contributed to the volume updated (their chapters). I wrote basically a new introduction and included the final version, etc. But the hope was always that it would be, essentially, an entry point into sophisticated consideration of the law. But most of all, that people could read the texts and they could read the evolution of this law and these ideas and make their own judgments. And since it is, you know, essentially a constitutional embodiment in relatively few short words the essence of the state and an affordable healthcare act or anything, thousands of pages, it was fairly easy to show the evolution of these drafts and to show what was changed and to consider why, so people could see the full picture of the evolution of the law. I’m very pleased by the fact that we were able to put it out so quickly and it can serve as hopefully an entry point into a conversation. I mean, one of the issues that I faced when I rewrote the introduction after the law’s passage was, previously I had given no commentary at all in terms of what my own thoughts were, because I wanted all of the contributors to feel that their voices were not overshadowed by the editors, that the deck wasn’t stacked. But after the passage of the law, I did add an ending to my introduction in which I did give a bit of my own viewpoints in terms of how to interpret its significance.
JL: So what is your opinion? Especially when we think about the future, and we think about why this law matters, it seems to me that there’s a lot going on, when we think about Israel’s history, its lack of a formal constitution, its piecemeal process of coming together over the course of many decades, and also just on a fundamental level this question of Israel’s potential future as a Jewish and democratic state—what’s your take on the law?
SR: I guess the way I would interpret the significance of the law is that it’s very important on an emotional level to many different groups, in terms of how they see their inclusion or their exclusion from the body politic. It may very well be important in terms of how it’s used to interpret various laws and judicial decisions in the future. And I think, in terms of the meaning of the law and the meaning of specific clauses within the law, different groups will interpret the ambiguity that’s left in the law about the meaning of the state depending on their own historical experiences. But I don’t think that it damages the democratic nature of the, state or that this particular law has damaged the democratic institutions of the state. And I guess the silver lining is that for those who oppose elements within the law, or the law as a whole, it can be changed. It can be retracted. Entirely new basic laws can be written that reaffirm the rights of minorities or the rights of religious groups or a variety of individual and collective rights.
I think in that regard, Israel remains a democratic state and a Jewish state that is struggling with the balance between these two factors. And perhaps, for now, the Jewish element is in the ascendance, and the Jewish element is what many people are focusing on. And specifically the majoritarian element, the Jewish element at the expense of other groups. But I don’t think the writing is on the wall, and I think the democratic institutions remain in place, and I think it’s impossible to predict the future in terms of if those elements recede, if other elements become dominant, what the political framework of the state will be in the future. And as we know, we barely even got into the question of its relevance to a future Palestinian state. So, you know, we just don’t know. But the good news is there’s still plenty of avenues within Israel’s political system to change this law, for those who have problems with it.
JL: Look, we’re both historians. We’re better at studying the past and than predicting the future. What’s interesting here, and we’ve touched upon this a little bit, is how we think about this law within the history of Israel and the history of Zionism and the history of Palestinian nationalism. It’s an open question of what this will do in the future. One of the things that is interesting about this to me is the role of the history in all of this, the role of historians. As we talked about, the history is at the center of this law, how people understand the history and purpose of the Zionist movement, how people understand the history of the Jewish people. We didn’t even talk about the opening of the law. I had mentioned to you that this was something very interesting to me. This claim that the land of Israel is the historic homeland of the Jewish people. That’s a very complicated historical statement to open with, the same way that the declaration of independence of the state of Israel also opens with a very complicated historical statement. What’s interesting is the way in which historians have a voice in this conversation. And I think part of what you’ve done here is to try to open up a platform for those voices to come through.
SR: Well, I really appreciate that. Thank you very much. And I mean, out of self interest, I hope that historians continue to have a voice in a variety of contemporary debates, both in the U.S. and in Israel. I think that if we can provide the sources for public understanding, or at least for the public to make their own judgments and to advocate for their own alternatives, that’s something