Jerusalem comes under fire for its new Basic Law, which is similar to many European constitutions.
Let the hand-wringing and denunciations begin. On Thursday Israel finally expressed in constitutional law the basic achievement of Zionism: Israel is the nation-state of the Jewish people. In the seven years since the new provision was first proposed, it has attracted a barrage of criticism from the U.S. and Europe. Foreign politicians have demanded Israel not pass the law, and they have not been mollified by the removal of most of its disputed provisions. A Monday headline at Foreign Policy warned that Israel was “debating democracy itself.” Arab Knesset members ripped up copies of the bill after its passage. One called it “the official beginning of fascism and apartheid.”
In reality, Israel’s Basic Law would not be out of place among the liberal democratic constitutions of Europe—which include similar provisions that have not aroused controversy. The law does not infringe on the individual rights of any Israeli citizen, including Arabs; nor does it create individual privileges. The illiberalism here lies with the law’s critics, who would deny the Jewish state the freedom to legislate like a normal country.
The nation-state law declares that Israel is a country established to instantiate the Jewish people’s “right to national self-determination.” It constitutionalizes symbols of that objective—the national anthem, holidays and so forth. There is nothing undemocratic or even unusual about this. Among European states, seven have similar “nationhood” constitutional provisions.
Consider the Slovak Constitution, which opens with the words, “We the Slovak nation,” and lays claim to “the natural right of nations to self-determination.” Some provisions are found in places like the Baltics, which have large, alienated minority populations. The Latvian Constitution opens by invoking the “unwavering will of the Latvian nation to have its own State and its inalienable right of self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture throughout the centuries.” Latvia’s population is about 25% Russian.
The new Basic Law also establishes Hebrew, the primary language of 80% of Israel’s population, as the official language. Previously, Israel relied on a holdover British Mandate provision that gave official status to Hebrew, Arabic and English. Far from undermining democracy, the Basic Law puts Israel in line with other Western nations. Most multiethnic, multilingual European Union states give official status only to the majority language. Spain’s Constitution, for example, makes Castilian Spanish the official national language, and requires all citizens to know it, even if their mother tongue is Basque or Catalan.
Another controversial provision of the law declares “the development of Jewish settlement” to be a national value that the government should promote. It is understood to refer to encouraging population dispersion into the periphery of the country. This essentially restates policy adopted by the international community in 1922 in the League of Nations Mandate for Palestine, which sought to “encourage . . . close settlement by Jews.” Again, the provision is only declaratory of values, and does not prescribe or authorize any particular policies. By contrast, the state constitution of Hawaii authorizes land policies to promote homesteading by ethnic Hawaiians, and provides preferential land policies for them.
Moreover, the measure comes against a backdrop of land policies that discriminate against Jews. The Israeli Supreme Court has ruled controversially that Arabs have a right to create residential communities in Israel that exclude Jews. A separate case denied the corresponding right to Jews. In Jerusalem, the Palestinian Authority prescribes the death penalty for Arabs who sell land to Jews. The new Basic Law does not even negate either of those injustices; it merely creates a normative counterweight.
Nor does Israel have official religions, and nothing in the new Basic Law changes that. In this respect, Israel is more liberal than the seven European countries with constitutionally enshrined state religions.
Perhaps the best evidence that Israel needs a constitutional affirmation of its status as the sovereign Jewish nation-state is the eagerness of so many to denounce as undemocratic measures that are considered mundane anywhere else.
Mr. Kontorovich is a scholar at the Kohelet Policy Forum, a Jerusalem think tank that has supported the Nation State bill.
Appeared in the July 20, 2018, print edition.