November 28, 2014


Israel Can't Be an Unequal Democracy (Noah Feldman, 11/28/14, Bloomberg View)

The draft law as endorsed by Prime Minister Benjamin Netanyahu's government is titled "Israel as the Nation State of the Jewish People." The problem with the proposed law isn't that it calls Israel a Jewish state. Tunisia's democratic constitution makes Islam the official religion, and refers to the "Arab-Islamic identity" of the Tunisian people. It might not be very liberal or cosmopolitan, but a genuine democracy can permissibly enshrine its particular religious or ethnic identity in its constitutional framework -- provided that it remains committed to equal rights and equal status for all citizens.   

Insisting on equality of treatment and participation is what keeps democracy from devolving into the dictatorship of the majority. Guarantees of equality, alongside guarantees of liberty and the rule of law, are what make constitutional democracy special. Without them, democracy would mean nothing more than majority rule -- and could include any regime where the government came to power by a vote.

In the past, Israel's basic laws, like its declaration of independence, have reconciled the Jewish nature of the state with fundamental equality values by referring to Israel as a "Jewish and democratic" state. Although the exact meaning has always been contested, Israel's courts as well as its legal scholars -- and frequently, its politicians -- have generally agreed that Jewishness and democracy were being placed upon an equal footing. Palestinian citizens of Israel have therefore always been legally entitled to equality despite not being Jewish.

The state's holidays and symbols are and have been since statehood distinctively Jewish. "Hatikva," the national anthem, expresses "the hope" of Jewish return to Israel from 2,000 years of exile -- hardly the hope of Palestinians. And in practice, aspects of Israeli law and social custom have fallen short of treating Palestinian Israelis with complete equality, much as ethnic and religious minorities in other democracies face discrimination.

Yet the constitution-level commitment to democracy has been broadly taken to include a fundamental right of all Israelis to equal dignity and equal treatment before the law, regardless of religion or ethnicity. That commitment is absolutely fundamental to Israel's credibility when it describes itself as a democracy and refutes allegations that it is guilty of discrimination or even apartheid.

The draft basic law breaks the equation of "Jewish and democratic" by putting Israel's Jewish identity at the forefront and relegating democracy to a secondary description of the form of government.

Posted by at November 28, 2014 5:39 PM