Basic Law: Israel as the Nation State of the Jewish People: Implications for Equality, Self-Determination, and Social Solidarity

Abstract

The enactment of Basic Law: Israel as the Nation State of the Jewish People (“the Law”) on July 19th, 2018, triggered an intense public debate in Israel. Opponents of the Law refer to it as racist, shameful and disgraceful, and demanded its immediate repeal. Eight petitions against the Law have been filed, as of October 1, 2018, to the High Court of Justice.

Proponents of the Law argue that it is a legitimate legal entrenchment of the right of the Jewish people to self-determination, which is, they argue, the justification for the establishment of the state of Israel. They argue that the Law does not violate the principle of equality, which in entrenched, albeit inexplicitly, in Basic Law: Human Dignity and Liberty. They further argue that it is necessary in order to balance Supreme Court’s alleged preference of “universal values” over national ones.

The questions raised by the Law can be divided into three groups. The first group of questions regards the possible effects the Law may have on individual rights, and, in particular, on the right to equality. The second group of questions regards the implications of the Law for possible future recognition of collective rights for non-Jewish minorities, or for other forms of state recognition of minority groups. The third group of questions regard the manner in which the Law shapes the national identity of Israel, constructs the terms and content of membership in the political community in Israel, and affects social solidarity.

The paper will analyse the three group of questions, examining them against the backdrop of current political discourse in Israel. The two most important issues, in this regard, are the public debate regarding the concept of “a state of all its citizens”, understood by many Israelis as incompatible with the definition of Israel as a Jewish state, and the ongoing political struggle between the Knesset and the Supreme Court regarding the limits of judicial review. The paper argues that the significance of the Law, and the intensity of the public debate it stirred, can only be understood within this context.

The paper argues that in addition to the serious equality concerns the Law raises, the Law undermines the ability to create inclusive, all-encompassing social solidarity in Israel. While violations of equality could potentially be mitigated by a willing Supreme Court, the negative effect the Law may have on social solidarity in Israel may be difficult to alleviate.

Keywords: Populism, Constitutionalism, Nationalism, Israel