Moshe Arens, meet Aharon Barak

There are few people in Israeli public life that I respect more than Moshe Arens, former Minister of Defense (three terms), Minister of Foreign Affairs and Ambassador to the US.

But I think he was wrong recently, when he wrote this:

Just when I thought that the Nation-State bill had been shelved, shoved in the deepest recesses of the Knesset archives, it has resurfaced, and seems to have received the government’s support.

This bill is useless and harmful. Ignore the self-righteous explanations that it is no more than a statement, and that it does not discriminate against Israel’s Arab citizens.

Who needs this statement, anyway? The Israeli flag is the Zionist flag; and the Israeli anthem is Hatikvah; Hebrew is the predominant language spoken in Israel; and the Law of Return, passed by the Knesset many years ago, is being implemented on a daily basis. There is no need for a declaration to affirm that in Israel the Jewish people are exercising their right to national self-determination, and that Israel remains committed to providing a haven for all Jews seeking such a haven. All of Israel’s citizens, Jews and Arabs, as well as the rest of the world, are fully aware of that. Any “statement” on this matter is superfluous.

But the problem is worse than that. Enacting this bill into law smacks of a total absence of sensitivity and empathy for our fellow Arab citizens.

Israeli Arabs constitute a fifth of Israel’s citizens, a minority entitled to full equality of rights and of opportunities. Although great progress has been made in Israel’s 69 years, we still have a long way to go to achieve this goal, which is part of integrating Israel’s Arab citizens into Israeli society and into the Israeli economy. That is of ultimate importance not only for Israel’s Arabs but for Israel’s Jewish citizens as well. In other words, it is of ultimate importance for the State of Israel, and should be first priority in the government’s economic and social agenda. Failure to attain this goal could leave many of Israel’s Arab citizens with a feeling of alienation, possibly even hostility, toward Israel. From this perspective, the Nation-State bill is a move in the wrong direction.

I think the nation-state law (full text in English and in Hebrew), which passed its first reading in the Knesset this week, is absolutely essential. It is a weakened version of a bill that was proposed several times in the past, and will probably be weakened even further (perhaps the paragraph about the national language that Arens particularly objects to will be changed) before it is ultimately enacted. But I think some version must become law. Here is why:

Israel does not have a constitution. In its place it has several Basic Laws, which partially define the basic principles of the state: the Knesset and the electoral system, the army, Jerusalem as the capital of the state, the judiciary, and – very importantly – the basic rights of Israeli citizens in the Basic Law: Human Dignity and Liberty.

It’s important to understand that these laws are not comprehensive. Due to the contentious nature of Israeli society and politics, the constitution that was called for in Israel’s Declaration of Independence to be ready in 6 months was never written; and the Basic Laws cover only part of the ground.

One of the biggest missing pieces is an explication of “Jewish State,” even though the Declaration of Independence explicitly declares “a Jewish state in Eretz-Israel.” But what is it? Arens says that since everyone knows, there is no need to explain further.

But does everyone know? I think not. Consider the Basic Law: Human Dignity and Liberty, whose stated purpose is “to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” The law goes on to specify certain basic rights of citizens in a democratic state, which can be understood as a partial definition of “democratic.” But nothing is said of “Jewish.”

Since the phrase “Jewish state” does not appear anywhere else in the Basic Laws, the author of this law – and the man responsible for the so-called “constitutional revolution” that gave Israel’s Supreme Court what many consider excessive power – former President of the Court Aharon Barak was asked to explain what he thought it meant. His answer illuminated his view, which is shared by an important segment of Israel’s intellectual, cultural, legal and media elites :

The content of the phrase “Jewish state” will be determined by the level of abstraction which shall be given it. In my opinion, one should give this phrase meaning on a high level of abstraction, which will unite all members of society and find the common among them. The level of abstraction should be so high, until it becomes identical to the democratic nature of the state. The state is Jewish not in a halachic-religious sense, but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state (this is expressed, inter alia, in the language and the holidays). [my emphasis]

While all secular Israelis and many religious ones agree that the state should not be “Jewish” in a halachic (according to Jewish law) sense, Barak’s idea that “Jewish” simply means “democratic” has the effect of factoring out Jewishness from the definition of the state. It is highly doubtful that the signers of the Declaration of Independence, or even a majority of secular Israelis would agree to this. Certainly Moshe Arens would not!

Although Aharon Barak sees himself as a Zionist, the implications of his view are anti-Zionist. It is consistent with the position of those Israeli Arab intellectuals and a minority of left-leaning Jews that Israel should not in fact be a Jewish state, but rather a “state of its citizens” in which the Jewish people has no special status (other than the accidental and possibly temporary condition of being a majority). They see the various symbolic and practical expressions of the state’s Jewishness – the flag, anthem, national symbol, and of course the Law of Return – as infringements of democratic principles.

I and others who favor the nation-state law draw a distinction between civil rights which must be guaranteed to all citizens of the state, and national rights, which are reserved to the Jewish people as a fundamental condition of the founding of the state.

It’s important to understand that there are practical consequences to vitiating the idea of a Jewish state in our foundational laws. What will protect the Law of Return and the national symbols if the concrete idea of the Jewishness of the state is not anchored in a basic law the way “democratic” is? What about our educational system? Does democracy require that our schools teach Arab students about “the nakba” or make nakba day a holiday for Arabs in Israel? The Supreme Court has already taken decisions that prioritize “democratic” over “Jewish.” What is to stop it from going farther?

Arens objects to the nation-state bill on pragmatic grounds: he believes that it will deepen the alienation of Arab citizens of Israel (many of whom call themselves Palestinian citizens of Israel). He correctly states that the integration of the 20% of our population who are Arabs into Israeli society and economy is a matter of “ultimate importance.”

I don’t disagree about the importance of integrating Arab citizens. But I think that we are making a serious mistake if we think that we advance that objective by in essence promising Arab citizens a binational state. What we can promise them, and should try to create, is a state in which there is equality under the law, equality of opportunity for economic and cultural development, and in which they are not discriminated against for receiving government benefits or services because they are not Jews.

We can’t promise them that someday Israel (which would have to be called something like the Judeao-Palestinian Republic) will make no distinction between the Jewish people, for whom the state was established and who are the owners of it, and anyone else. They wouldn’t believe us anyway.

Non-Jewish states represent more than 99% of the earth’s inhabitable surface. There are upsides and downsides to life in every country. If you live in the US, you worry about health insurance; in Syria, about staying alive. And if you live in Israel and insist on being a Palestinian nationalist, there is a downside to that too. We welcome our Arab citizens to participate in the life of this country. But they will have to do so on our terms, that is, as citizens of a Jewish state.