Nation-State Law Explainer
Fact Sheet: The Basic Law: The Nation-State
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The Basic Law: Israel - the Nation-State of the Jewish People (hereafter: “the Nation-State Law”), anchors the country’s status as such at the constitutional level. It passed the Knesset in June 2018 by a vote of 62 in favor and 55 opposed. Among other things, it states the Jewish people’s right to self-determination, which it restricts to the Jewish people in Israel. It also covers the Jewish right of return, the status of Jerusalem, the national flag and symbols, the Jewish calendar, Independence Day and memorial days, and the status of the Hebrew language. Its passage was the first time that the country’s character was stipulated in a constitutional document—something that other countries tend to do in the preamble to their constitutions.
Most of the Basic Law’s provisions are important and appropriate for inclusion in the preamble of Israel’s evolving constitution. The problem is what it leaves out: it excludes minorities, omits equality, ignores democracy and the Declaration of Independence, and undermines the fragile balance of Israel as a Jewish and democratic state.
(1) There’s no reference to equality
Israel is one of the few democracies with no formal mention of the principle of equality. It is not inscribed in any Basic Law, which is the set of laws in Israel with quasi-constitutional status. What is more, every democratic country, even in those that are undoubted nation-states, guarantees equal rights for minorities. Israel's Basic Law: Human Dignity and Liberty, does not explicitly safeguard the right to equality. This means that the only constitutional defense of minorities in Israel and their right to equality derives from the court’s interpretation of that law. For this reason, a Basic Law intended to define the character of the state but that does not anchor the principle of equality among its citizens is problematic from a democratic perspective. Precisely because the country defines itself as Jewish in a Basic Law, it should explicitly reference the principle of equality for the minorities who live in it. It is important to note that Justice Minister Yariv Levin’s proposals for a “judicial overhaul” included the clause that the Supreme Court would be empowered to strike down laws only if they contradict an explicit provision of the Basic Laws. Because equality is not explicit but rather an interpretation of the court, the intention is to eliminate the right to equality as a fundamental constitutional principle of Israeli law.
(2) There’s no mention of a “Jewish and Democratic State”
Israel isn’t just a Jewish state. It is a Jewish and democratic state. Despite its title, the Basic Law covers more than just the nation-state matter. It deals with the essential character of the State of Israel, its fundamental values, its identity card and attributes. Yet it omits any reference to the country’s democratic character and deals with only one side of the equation—and thereby calls into question the familiar and accepted formula of “Jewish and democratic.” Since independence the country has always maintained an equilibrium between these two principles.
(3) There’s nothing about the Declaration of Independence
The Declaration of Independence is the seminal document of the Israeli state. Recently, Supreme Court Justice Alex Stein wrote that “the Declaration of Independence … defined the character of the State of Israel for all time.” The Nation-State Law should have mentioned it, referred to sections of it, or at least included a clause parallel to the formula employed in the Basic Laws about human rights, namely, that “fundamental rights will be respected in the spirit of the Declaration of Independence.” The balance carefully stated in that document between Israel as a Jewish state, along with recognition of rights and equality, is missing from the Nation-State Law. We should recall what the founders proclaimed: “The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; … it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”
The Nation-State Law is essentially declarative in nature—but this does not diminish its importance. Constitutions all over the world (in Israel, Basic Laws) include fundamental values and declarations of principles. These may be significant in formal legal terms, both as interpretive tools for the courts and public officials and on the symbolic level, illuminating the nation’s value for the public.
The declaration that the country is a Jewish state and the nation-state of the Jewish people reflects the current situation and the way Israel has conducted itself since independence. The state is Jewish is many senses, but especially because it is the nation-state of the Jewish people and only Jews may immigrate freely. Nevertheless, this declaration undermines the principle of equality and announces to all citizens who are not Jews that Israel is not “their country.” Even if their rights are not actually abridged, their sense of exclusion is unavoidable. A constitution serves an important educational role: The Nation-State Law teaches the Israeli public, the children in particular, that the state belongs exclusively to the Jews and does not recognize minorities who are not Jewish.
Despite its largely declarative nature, there have been several instances in which lower courts relied on it in their verdicts, before the Supreme Court had addressed it, in a manner that would have assigned the law operational implications; but these were rejected on appeal.[1]
A problematic article of the Nation-State Law[2] stipulates that the state will act to promote and consolidate Jewish settlement, or establishment of Jewish communities (not to be confused with settlements beyond the green line). Here too, the text does not say that settlements should be built and developed for the benefit of non-Jews, thus it can be interpreted as permitting discrimination between citizens when it comes to the allocation of resources and encouragement of settlement. The Supreme Court, responding to a petition challenging the law’s constitutionality,[3] interpreted the law in accordance with the State’s position and found that it is compatible with the Basic Law: Human Dignity and Liberty—a declaration that does not contradict the state’s obligation to treat all citizens equally in the allocation of resources and land.
A change introduced to the text before the Nation-State law was passed stipulates that the state will only act “in the Diaspora” to foster the bond with Diaspora Jewry.[4] The implication is that it is not obligated to do so in Israel itself. The change was made because many institutions in Israel, such as that of marriage and religious conversion, fall under the authority of Israel's Chief Rabbinate, and the ultra-Orthodox parties feared that the law might be interpreted as obligating the State to recognize the non-Orthodox streams (given that most Jews abroad are Reform or Conservative). There is no good reason, however, why a Basic Law that defines Israel as the Jewish nation-state should include a section that announces its estrangement from Jews abroad.
The State’s Obligation to Secure the Welfare of Jews and Citizens Who Are in Straits and Captivity
Article 6(a) of the Nation-State Law defines the state’s obligation “to secure the welfare of members of the Jewish People and of its citizens, who are in straits and in captivity, due to their Jewishness or due to their citizenship.” In contradistinction to the rest of the law, this section stipulates that the state is obligated to help all its citizens, not only those who are Jewish, and to help Jews who are not citizens but are persecuted because they are Jews. It expressed the special principle of social solidarity in Israel and the country’s obligation to the entire Jewish people, including those in the Diaspora.
Some fifteen petitions were filed against the Nation-State Law, including one by Druze Knesset members of various parties Akram Hasson, Hamad Amar, and Salah Sa’ad.[5] The petitioners’ main arguments centered on the law’s severe infringement of the right to equality and on the balance between the principles of Jewish and democratic. They contended that, in this situation, the concept of an “unconstitutional constitutional amendment,” which would allow the Court to strike down a Basic Law that seriously contravenes the country’s fundamental values, should be applied for this first time.
Ten Justices of the Supreme Court rejected the petition, with only one dissent The majority, led by then-Chief Justice Esther Hayut, did not explicitly adopt the court’s authority to strike down a Basic Law as an “unconstitutional constitutional amendment” and left this question for future resolution. Hayut did, however, lay down a basis for this and wrote that the constitutional power in Israel is limited when the Knesset, enacting a Basic Law, denies the core principles of Israel as a Jewish and democratic state.
The court was not forced to decide about the question of authority, because it held that in any case the Nation-State Law does not require its intervention. In its interpretation, the law does not contradict the Basic Law: Human Dignity and Freedom and so does not infringe equality in any way. It ruled that the Nation-State Law was intended to insert real content in the phrase “Jewish state” and as such innovated nothing. The justices based their decision that the law was not intended to detract from equality both on statements for the record made by Knesset members during the deliberations on the bill and on the State’s position during the hearing. For every section of the law the Court found an interpretation that does not infringe equality. It preferred a harmonizing interpretation, even of the problematic clauses, as declarative statements that are not incompatible with the right to equality, as stated in the Basic Law: Human Dignity and Liberty.
Justice George Kara, in his dissent, would have annulled several sections of the law (those about Jews’ exclusive right to self-determination, about the status of the Hebrew language, and about Jewish settlement) because of their severe violation of the right to equality, which cannot be cured by means of a harmonizing interpretation.
It is not its content that makes the Nation-State Law problematic. Most of its provisions are important and should be part of Israel’s constitution. Israel truly is the nation-state of the Jewish people. The entrenchment of this principle in a Basic Law makes perfect sense.
But this Basic Law, which formalizes the Jewish character of the state, should also give expression to its democratic side—and needs to be amended to achieve this. Democratic values, and notably equality, that are not explicitly mentioned by the other Basic Laws should find their place here. The Basic Laws of the nation-state of the Jewish people, who were a persecuted minority for millennia, should evince extreme sensitivity to its own minorities. This holds with even greater force for this law, which is an important part of the state’s “ethical identity card.”
As stated, the problem with the Nation-State law is not what it says, but what it omits: equality, democracy the Declaration of Independence.
Consequently, it should be amended to include the explicit statement that Israel is also the home of the minorities who live in it, along with explicit reference to all citizens’ right of equality, as promised by the Declaration of Independence. Had the Knesset simply added what is missing from the law, Israel’s essence as the nation-state of the Jewish people would not have been curtailed in the slightest. On the contrary. Two additional amendments that would be appropriate would be add Arabic as a second official language and clarify the state’s commitment to the development and encouragement of settlement to benefit all its residents.
[1] For example, a case heard by the Carmiel Magistrate’s Court in which children sued to receive funding to be transported to a school for Arabic speakers, rejected with prejudice by the registrar, on the grounds that Carmiel is a Jewish town, and referring to Article 7 about the promotion of Jewish settlement (RCC 12092-06-18, John Doe v. the Carmiel Municipality, Nov. 24, 2020). On appeal, the District Court rejected the reliance on the Nation-State Law as mistaken (CA 49111-12-20, John Doe v. the Carmiel Municipality, pp. 6–7 [Feb. 3, 2021]).
[2] Nation-State Law, Article 7.
[3] HCJ 5555/18, MK Akram Hasson et alii v. the Knesset of Israel (July 8, 2021).
[4] Nation-State Law, Article 6.
[5] HCJ 5555/18, MK Akram Hasson et alii v. the Knesset of Israel (July 8, 2021).