The Challenges of Defining Israel as a Jewish and Democratic State from a Constitutional Law Perspective

Question 1

What does it mean for Israel to be a democratic state?

Answer 1

Open and honest elections, popular sovereignty; separation of powers; independent judiciary and judicial review; civil liberties; and transparency and free media.

Question 2

What is the Jewish character of the State of Israel?

Answer 2

Israel is a nation-state; it is the state whereby the Jewish people exercises its collective right to self-determination. Law of Return. Special ties with Jewish communities in the Diaspora. Public sphere is shaped by Jewish collective identity and memory: Hebrew language; calendar; days of rest and public holidays; Israeli flag (Star of David); Menorah.

Question 3

Why is the Jewish character of the State of Israel problematic?

Answer 3

Arab minority — no identification with Jewish collective history and memory; economic discrimination in many realms; limited access to effective political participation; treated with suspicion by Jewish majority.

Question 4

What are some areas where religion and state overlap in Israel?

Answer 4

Rabbinical monopoly on matters of personal status; Kashrut certification; holy sites (Western Wall); gender-based segregation in public sphere; public transportation and business activity on Shabbat; conversion; refusal of Ultra-Orthodox Jews to serve in military and adopt national education curriculum; refusal of national-religious Jews to accept the democratic vote in the event of withdrawal from West Bank and dismantling of settlements.

Question 5

Basic Law: Israel as the Nation-State of the Jewish People.

Answer 5

Israel is the historic homeland of the Jewish people, Jerusalem is the capital, Hebrew is the official language with Arabic having special status, ingathering of exiles, Jewish settlement, Jewish holidays, and Independence Day.

Question 6

Why did some members oppose the proposal of Basic Law: Israel as the Nation-State of the Jewish People?

Answer 6

The idea of enacting such a Basic Law first emerged as a counter-reaction to proposals made by some Arab-Israeli activists and ministers demanding an end to the Jewish state in favour of a purely civic democracy — a “state of all its citizens” — based on an American or Canadian model.

Question 7

Why did Prime Minister Benjamin Netanyahu insist that the Basic Law: Israel as the Nation-State of the Jewish People was necessary?

Answer 7

Because mounting worldwide challenges deny that Israel is the national homeland of the Jewish people.

Question 8

Who was tasked with dealing solely with the Basic Law: Israel as the Nation-State of the Jewish People to put together a draft that was deemed acceptable to all members of the coalition?

Answer 8

Amir Ohana of the Likud.

Question 9

What was the response to Basic Law: Israel as the Nation-State of the Jewish People?

Answer 9

Fierce opposition and mass demonstrations. The Supreme Court is scheduled to hear petitions against it with a panel of 11 judges.

Question 10

True or false? The final version of the Basic Law: Israel as the Nation-State of the Jewish People includes provisions that constitutionalizes the status of Jewish law in the Israeli legal system, and making specific mention of the chief rabbinate.

Answer 10

False.

Question 11

True or false? The Basic Law: Israel as the Nation-State of the Jewish People provides the State of Israel will work to preserve the cultural and historical heritage of the Jewish Nation and foster it in Israel.

Answer 11

False.

Question 12

How does the Constitutional Revolution support the creation of the Basic Law: Israel as the Nation-State of the Jewish People?

Answer 12

Since the High Court of Justice subordinates national Jewish interests to universalist ones, the Basic Law is needed to constitutionally anchor the Jewish collective right to a nation-state and compel the High Court of Justice to take the state’s Jewish character into greater consideration when making legal decisions and so cease downplaying the collective right of the Jews to a nation-state that reflects Jewish preferences.

Question 13

How do the fundamental principles of Zionism support the Basic Law: Israel as the Nation-State of the Jewish People?

Answer 13

The Basic Law: Israel as the Nation-State of the Jewish People provides the minimal framework in which the majority of citizens already committed to a form of Jewish identity are able to manifest that collective identity in the public sphere — gives constitutional force to the fundamental principles of Zionism.

Question 14

How would proponents argue that the Basic Law: Israel as the Nation-State of the Jewish People does not diminish minority rights?

Answer 14

All citizens would continue to be entitled to equal treatment under law with full civil rights, but these are political and, in part, social in nature, not collective. Israel is the one and only state actualizing the collective rights of the Jewish people to self-determination.

Question 15

How does Basic Law: Israel as the Nation-State of the Jewish People diminish minority rights?

Answer 15

One who does not identify with the Jewish people feels less connected. As a citizen in a democratic nation state, the minority member receives equal political and social rights; however, as a non-member of the nation he does not bask in the same feeling of fellowship and belonging that accompanies the self-determination of the overwhelming majority.

Question 16

Does the phenomenon of promoting the collective interests of predominant national groups while affording equal political rights to all citizens exist elsewhere?

Answer 16

A majority of European countries are nation states, each, in its own way, promoting the collective interests of the predominant national groups while affording equal political rights to all citizens. From this standpoint, the nation is more than a collection of rights-bearing individuals who happen to live in a particular territory.

Question 17

How would an opponent to the Basic Law: Israel as the Nation-State of the Jewish People use the principle of equality to oppose the legislation?

Answer 17

There is no explicit reference to the principle of equality, and therefore by tying Israel’s identity to one people, it gives Jews constitutional privileges no other nation can have access to.

Question 18

How would an opponent to the Basic Law: Israel as the Nation-State of the Jewish People use contextualization to oppose the legislation?

Answer 18

It is important to situate the initiative to enact the Basic Law within the broader political context whereby in recent years there has been a wave of nationalist legislation which alienates the Arab minority which makes up 20% of the population.

Question 19

How is the Druze population affected by the Basic Law: Israel as the Nation-State of the Jewish People?

Answer 19

Expresses disrespect to the Druze population who loyally serve the state, including by performing military service.

Question 20

How is Israel different than France or Germany in terms of incorporating Judaism as a nation-state?

Answer 20

Immigrants to France or Germany may assimilate and identify themselves as French and German. On the other hand, it is not open to a non-Jew, even if he possesses Israeli citizenship to embrace the values of Judaism and Zionism and identify with the history of the Jewish people, particularly if he belongs to the Arab minority.

Question 21

What effect might the Basic Law: Israel as the Nation-State of the Jewish People have on disputed territories such as the West Bank?

Answer 21

Will provide fodder to critics, emboldening those who wish to deny the legitimacy of the Jewish state and cast it as an ‘apartheid’ state.

Question 22

Many defenders of the Basic Law: Israel as the Nation-State of the Jewish People do not support Palestinian self-determination through the establishment of a Palestinian State in the West Bank and the Gaza Strip. Why is this problematic?

Answer 22

Their argument hinges on the fact that in the State of Israel, the Jewish people are entitled to exercise its right of self-determination.

Question 23

What effect will the Basic Law: Israel as the Nation-State of the Jewish People have in practice?

Answer 23

Will make little difference, as it simply codifies principles and values that are already recognized and put in practice.

Question 24

How might the Basic Law: Israel as the Nation-State of the Jewish People further empower the courts?

Answer 24

The Supreme Court will be able to apply its interpretation of the principles and values contained in the Basic Law and ‘harmonize’ or balance them as they see fit with the ‘democratic’ principles in other Basic Laws, such as Basic Law: Human Dignity and Liberty.

Question 25

How might provisions within the Basic Law: Israel as the Nation-State of the Jewish People be in tension with the rights of individual Jewish citizens?

Answer 25

For example, giving substance to Shabbat as a day of rest could infringe upon the right to engage freely in commerce and, more broadly, allow municipal authorities to prohibit opening, for example, movie theatres and shopping centres.

Question 26

What was Ruth Gavison’s conclusion regarding the Basic Law: Israel as the Nation-State of the Jewish People?

Answer 26

Affirmed that it would be preferable to abstain from drafting any kind of document of a constitutional nature with respect to these fundamental issues that have to do with the identity of the State of Israel. In dealing with such vision questions (the identity of the State of Israel), it is preferable to adopt a thin, minimalistic definition, and allow the political process to unfold.

Question 27

What are the three pillars in the Declaration of Independence that Ruth Gavison pointed to that should be the starting point when it comes to the core of the vision of the state?

Answer 27

Israel is a democratic state; Israel is a state that protects the human rights of all its residents; Israel is a Jewish state in the sense that it serves as the vehicle for the realization of the right to self-determination.