By Luca Doll
Israel can be considered as deeply divided. The vast majority of scholars engaged in understanding this country will presumably agree on this condition. Various interrelated factors have contributed to this fact, including ethnicity, religion, language, means of political participation, available economic possibilities, disputing historical narratives, access to state welfare as well as a number of other issues. One factor which might be crucially contributing to the latter described circumstances is the Nation-State Law which was passed last July.
With regard to Yoav Peled’s conception of liberal and republican citizenship, I seek to elucidate its potential effects on the judiciary, Israeli society and the upcoming general election. The essay is structured in three parts:
(1) a brief introduction into Peled’s concept and how it is applicable to the case of Israel,
(2) an overview concerning Israel’s new Nation-State-Law, in view of the distinction of liberal and republican citizenships and
(3) its political implications.
Peled’s Conception of Citizenship
In order to assess the conceptual divide in Israel, one can discern republican and liberal citizenships, starting with the latter. The general apprehension of liberal citizenships comes down to three main factors: Individualism, Universalism and Equality. This implies that differences in ethnicity, religion or similar attributes are to be considered irrelevant. One can thus understand liberal citizenship as a passive good, therefore obtainable without actively promoting it.
In contrast, republican citizenship is constituted by a community-based moral notion, a purpose which constructs a shared civic virtue. It further consolidates itself towards the concept of common goods, distributed among its members. Following that, Peled distinguishes between weak and strong communities, whereby the latter one can be attributed to the Jewish community in Israel. Noting this, I won’t attach value to the notion of weak communities, as it won’t contribute explanatory benefit to the essay. The civic virtue of strong communities can be understood as a moral obligation of its members to push and ensure the further existence of their community. It is thus mandatory to fulfil the demands of the idea of one’s community in order to obtain its citizenship. However, this notion is not only to be seen as vague guideline on how to behave, rather it is to carry on “enduring attachments”. An example for such an attribute is to be born a member of a republican community, whose membership is otherwise not obtainable and implies exclusivity. Applied to the case of Israel, if one is not born Jewish, albeit Israeli one is not member of a republican community but rather a liberal one and is thus excluded from accessing certain (statehood) features. Obviously, Israel isn’t funding Israeli-Palestinians to settle the West Bank.
Summing up, one can assess that:
“[T]he confluence of republicanism and ethnonationalism with liberalism, as principles of legitimation, has resulted in two types of citizenship: Republican for Jews and liberal for Arabs. Thus Arab citizens enjoy civil and political rights but are barred from attending the common good”.
The Nation-State Law
In order to connect the above sketched endeavor to approach Israel’s society and the highly discussed Nation-State Law, the following part will concern the judicial aspects.
Israel has no written constitution, yet it passed 14 basic laws since its independence 1948, which can be seen as tantamount to an array of constitutional amendments. The latest one was passed in July 2018 and codifies the Jewishness of Israel: “Israel as the Nation-State of the Jewish People”. The law is hence allocated at one of the main questions Israeli statehood has to answer: Is it possible to conciliate “[t]he exercise of the right to national self-determination in the State of Israel is unique to the Jewish People” (1(c) Nation-State Law) with approximately 1,8 million non-Jewish citizens and an increasingly majoritarian functioning democratic state?
An implication of that is a further division of the Arab-Israeli livelihood since the Israeli citizenship, at least in terms of what it grants, is not linked to nationality but to ethnicity. Following that, Arab politicians were calling for a state that represents and serves all its citizens since the Nation-State Law does not include a basic democratic precondition, which is equality. An inclusion of the term widens the space of judicial maneuvering of the Supreme Court to the detriment of the Knesset. The mentioning of an equality principle failed finally due to the renitency of Likud and Jewish Home MKs. This can be understood by observing the activities of the Supreme Court since the Basic Law was passed in 1992, guaranteeing human dignity and freedom. The Supreme Court has frequently been overturning bills passed by the Knesset, for instance:
“[R]uling on maintaining family reunification of Palestinians in the West Bank and Israel; the ban on detaining refugees; the evacuation of ‘outposts’ of Jewish settlers in the West Bank; as well as the priority given to freedom of expression and art in relation to public outrage over, for example, the film “Jenin, Jenin” and prohibiting the prioritisation of expanding and maintaining exclusively Jewish over non-Jewish settlements”.
The concerns against the implementation of ‘equality’ into the amendment were that the term could be interpreted as favoring collective and not individual equality, therefore granting community equality and dismissing Jewish priority within the state. In other words, it was omitted as it would advance the Supreme Court’s power. The justice minister Ayelet Shaked stated that one has to “protect the Jewish character of the state even if that means sacrificing human rights.” which can be seen as the very definition of what is a strong republican community:
„[To] family or community or nation or people . . . I owe more than justice requires or even permits, not by reason of agreements I have made but instead in virtue of those more or less enduring attachments and commitments which taken together partly define the person I am“.
Following that, the Nation-State Law can be seen as a counter-reaction to the Basic-Law of 1992. The implementation of the latter, also known as the ‘constitutional revolution’ of Israel, enabled the supreme court to challenge legislative matters and decisions in a more critical and autonomous manner. Since the Supreme Court follows certain values, it is highly relevant to carve these out.
Also, since Aharon Barak, former president of the Supreme Court, stipulated a liberal notion upon the court, it obtained the reputation to be generally orientated as such. The statement of deriving values from the Jewish enlightenment and not from religious interpretations marks the differences between the recent value construction of the Supreme Court and the Knesset. Following the liberal interpretation of law, the court tends to emphasize minority rights and supervises the governing process stronger than pre-1992, which finds heavy criticism among rightwing parties. Regarding the latter, the implementation of a Nation-State Law seems to be following the Israeli administration’s political agenda of the last decade: As it is countering the 1992 Basic Law, it is thus indirectly empowering the Knesset by weakening the Supreme Court, which leads to the consolidation of executive power.
Whether the strategy proves to be successful remains to be seen and is dependent on two factors: Firstly, the composition of judges in the Supreme Court has to be changed in order to stress the new ideological alignment, whereby four seats got awarded in the current legislature. Interestingly, justice minister Ayelet Shaked and the current president of Israel, Reuven Rivlin (in office until 2021), are countering each other in the process of appointing the judges.
In conflict with the judicial committee currently chaired by Shaked, possible candidates get selected and proposed to the President who is ultimately (dis)approving them. As quoted above, Shaked can be considered as a rightwing conservative and is highly disputed since she was publicly diminishing the relevance of human rights. In contrast to that, Rivlin is contesting the newly imposed law, stating he will sign it in Arabic as a gesture of protest and rebuked Prime Minister Benjamin Netanyahu’s assertion that “Israel is the nation-state of Jews alone” with “there are no first-class citizens [in this country]”. This act of balancing might become clear regarding two appointments of judges in 2018: Ofer Grosskopf and Alex Stein, whose cleavage is presumably comparable to the one of the two persons who were primarily in charge of appointing them: Rivlin and Shaked.
Secondly, the situation of a newly imposed constitutional law, which might be contested by the Supreme Court, is unprecedented. Meaning there is no leading case that could be consulted. Thus, it can’t be resolved how the sketched dynamic is going to turn out, while incentives seem to be clear.
As this is not happening under public exclusion, it is a highly disputed topic. If one continues the thought of political strategy one could come to the following pursued aim: the depiction of a democracy that seeks to serve everybody as undemocratic. Accordingly, Netanyahu reframes the common sense of democracy, as rule of the majority and not the rule of all.
As he succeeds in this, two things might be reached: first and foremost, the further polarization of society, which is just a trivial output of the conducted agenda of an undisputedly exclusive Nation-State Law. The polarization is hence consolidating his electorate as he is redrawing his political opposition. Secondly, by situating himself in a more patriotic way, followed by a legislative restructuring of the judiciary, it takes less effort to depict the domestic adversary, Gantz, the opposition, as unpatriotic.
With regard to the upcoming elections on April 9, Benjamin Gantz, former Chief General of Staff of the IDF, stated that he ought to modify the Nation-State Law. The presumably pursued agenda is to fall into favor of the druses, the only Non-Jewish-Israeli collective which is incorporated in the military corpus. Since it remains open who is going to dominate the election, swing voters like the druses continue to be of high relevance to the outcome. Drawing back to Peled, citizenship becomes a campaigning object.
Compared to European countries, one will find a crucial difference in terms of the understanding of nationalism, patriotism and Zionism as a notion of being ‘patriotic’ in Israel and is rather a set equivalent with collective existence. However, ironically the pursued tendency of a slight dismantling of the judiciary finds its equivalents in Europe: “Israel’s current government is joining political currents similar to those in Hungary, Poland, Slovakia and elsewhere, where illiberal and ethno-national politics are practiced on behalf of the majority.”
At this point it has to be stated: a political current is not a political status, meaning it is essential to uphold a vivid international and domestic dialogue in order to ensure that Israel is not sliding into a less democratic condition as it retrieves itself at the moment.
About the Author
Luca Doll is currently working on his bachelor’s degree in political science at the University of Innsbruck. He completed his first bachelor’s degree in geography with a focus on political geography in 2018 and recently spent a semester abroad at the Tel Aviv University. His interests range from EU foreign relations and bordering processes to the regional political dynamics of the Middle East, concentrating on Israel and Palestine. (Twitter: @_lucadl)
Peled, Yoav (1992), Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State, The American Political Science Review, 86 (2), 432-442.
Sandel, Michael J. (1982), Liberalism and the Limits of Justice, Cambridge: Cambridge University Press, 172
SWP (2018), Israel’s Nation-State Law: Netanyahu Government Lays the Foundations for a Majoritarian System, SWP-Aktuell, 41, 1-7