Israel’s New Law: A Tale of Two Nation-States

The Palestine Basic Law (2003) defines Palestine as part of the Arab world and Arab unity as a singular goal of the Palestinian people. The law also defines Arabic as Palestine’s official language, Jerusalem as its official capital, and Islam as its official religion. This basic law serves as a temporary constitution for the Palestinian Authority until a sovereign State of Palestine is established. In the meantime, the law governs daily life inside the West Bank and to some extent Gaza.

On July 19 the Israeli Knesset passed a similar basic law. After hours of heated debate, a majority of the 120 members of Israel’s chief governing body passed the Nation-State Law that “establishes Israel as the historic home of the Jewish people” with a “complete and undivided” Jerusalem as its capital and Hebrew as its official language. Basic laws in Israel are special laws that have constitutional status until such time as Israel incorporates all of them into a final constitution.

Reaction to the bill was swift and mostly negative, not least of all because twenty percent of Israel’s population is not Jewish. A bevy of Jewish and Arab members of parliament condemned the law as racist. The Israeli Druze population, a unique minority known for its fealty to the state, directed rare but unmistakable outrage at Prime Minister Netanyahu’s government. The Latin Patriarch of Jerusalem issued a statement of special concern saying, “The law might not have practical effects, yet it sends an unequivocal signal to the Palestinian citizens of Israel, to the effect that in this country they are not at home.” The Organization of Islamic Cooperation and the Muslim World League condemned the law in similar terms.

The two basic laws cut to the heart of what the Israeli-Palestinian conflict is all about. They deserve careful attention because, whether Israeli or Palestinian, they serve to guide two societies living alongside each other as neighbors in the Holy Land.

Very little of Israel’s new Nation-State Law is actually new. The mere statement that Israel is the nation-state of the Jewish people is hardly novel; it’s what Israelis have been saying since 1948. In fact, the best critique of the law may be that it doesn’t really do anything besides stir up unnecessary trouble.

The one section that could be considered an innovation is “Section 4: Language” which declares Hebrew as the sole official language of Israel, relegating Arabic to the status of “special.” The provision seems to contravene seventy years of Arabic’s place as an “official” language of the state. As the country’s single biggest minority, Arabs are naturally displeased.

It is unclear whether the semantic shift from “official” and “special” will lead to any meaningful change in practice. The law explicitly states that it shall “in no way derogate from the status given in fact to the Arabic language before the application of this Basic Law.” Only time will tell if Netanyahu’s government, or any subsequent government, will take steps to curtail the rights of Arab citizens. For now it seems unlikely that anything will change on the ground or that Arabic will lose its favored place in Israeli public life.

Most criticism of the law is focused on Israel’s coupling of ethnic (Jewish) and national (Israeli) identity. For anyone raised in a liberal democracy like the United States, the idea that a state could be labeled as the unique home of particular people who hold a special right to self-determination is unthinkable. Nothing in the American, Canadian, or French experience has prepared us for such parochial thinking.

But identifying a state as the home of one ethnic or national group isn’t all that novel either. I recently spent some time in Croatia, a state whose constitution was drafted to serve the ethnic, linguistic, and cultural needs of the Croatian people. Other constitutions ensure that Ireland is for the Irish, Poland for the Poles, Slovakia for the Slovaks, Spain for the Spanish. Asia and Africa are filled with similar examples. It seems that most states prefer some kind of ethnic distinction; liberal democracies like ours are actually the exception.

Many critics will dispute the claim that Jewishness is an ethnic identity, arguing that it’s a religious identity and therefore improper as the constitutional basis for a state. But even if Jewishness is not a true ethnic identity (and I would dispute that vigorously), there is nothing unique about a religiously-defined state either. Most Middle Eastern countries affirm Islam as their official religion. Malta and Costa Rica are Roman Catholic. Bulgaria is Orthodox. Norway is Lutheran. England is Anglican. It’s all pretty standard stuff.

Whether defined as ethnic or religious, the Jewish identity of Israel finds parity in the Arab and Muslim identity of Palestine. And if Palestine can be Arab in every way, why can’t Israel be Jewish? Citizens of liberal democracies who know that they are in the world’s minority will not be bothered by states that maintain religious or ethnic preferences even if they find those preferences hard to understand. Their eyebrows will raise only when those states start to curtail the rights of minority citizens who don’t identify with the majority.

Israelis and Palestinians don’t need to apologize for affirming the ethnic and religious character of their states. But it’s important to point out that the Palestine Basic Law and Israel Nation-State law only make sense in the context of a two-state paradigm. The Jewish state of Israel cannot swallow the Palestinians; the Arab state of Palestine cannot destroy the Israelis. Both are too numerous, too nationally-minded, and too tenacious to disappear. Efforts to reinforce the identity of one should be paired with similar efforts to recognize the identity of the other.

The real question here is whether the basic laws of Israel and Palestine will harm the ability of Arabs and Jews to live as minorities in the other’s state. Will Arabs continue to live as equal Arabic-speaking citizens in Israel? Will Jews be allowed to live as equal Hebrew-speaking citizens in the future State of Palestine? These are the questions we should be asking now and in the future. Beyond the rhetoric, they are the only questions that really matter.

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