The Israeli “Jewish Nation State” Bill: Is The Controversy Justified?

Flag of IsraelI want to veer off-topic to discuss the recent proposal in Israel to declare the state to be the nation-state of the Jewish people. The “Jewish Nation State” proposal has gotten a lot of attention from lawyers and others. It may be a good idea and it may be a bad idea (Israeli citizens are fiercely debating it in the press and in the Knesset), but what I am trying to understand is why it is a controversial idea in principle in light of the self-definition of most states in the region as Arab nation-states (except maybe Iraq, which has a Kurdish region and whose constitution shows American influence, and Iran, which of course is not an Arab state).

  • Palestine. “Palestine is part of the larger Arab world, and the Palestinian people are part of the Arab nation. Arab unity is an objective that the Palestinian people shall work to achieve.” (Palestine 2003 Amended Basic Law art. 1).
  • Egypt. “The Arab Republic of Egypt is a sovereign, united, indivisible State, where no part may be given up, having a democratic republican system that is based on citizenship and rule of law. The Egyptian people are part of the Arab nation seeking to enhance its integration and unity. Egypt is part of the Islamic world, belongs to the African continent, cherishes its Asian dimension, and contributes to building human civilization. Islam is the religion of the State and Arabic is its official language. The principles of Islamic Sharia are the main source of legislation.” (Egypt Const. art. 1-2).
  • Lebanon. “Lebanon is a sovereign, free, and independent country. It is a final homeland for all its citizens. It is unified in its territory, people, and institutions within the boundaries defined in this constitution and recognized internationally. Lebanon is Arab in its identity and in its affiliation. It is a founding and active member of the League of Arab States and abides by its pacts and covenants.” (Lebanon Const., preamble).
  • Syria. “The Syrian Arab Republic is a democratic, popular, socialist and sovereign state. No part of its territory can be ceded. Syria is a member of the Union of the Arab Republics. The Syrian Arab region is a part of the Arab homeland. The people in the Syrian Arab region are a part of the Arab nation. They work and struggle to achieve the Arab nation’s comprehensive unity.” (Syria Const. art. 1).
  • Jordan. “The Hashemite Kingdom of Jordan is an independent sovereign Arab State. It is indivisible and inalienable and no part of it may be ceded. The people of Jordan form a part of the Arab nation, and its system of government is parliamentary with a hereditary monarchy. Islam is the religion of the State and Arabic is its official language.” (Jordan Const. art. 1-2).
  • Saudi Arabia. “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital.” (Saudi Arabia Const. art. 1).
  • Kuwait. “Kuwait is an Arab State, independent and fully sovereign. Neither its sovereignty nor any part of its territory may be relinquished. The people of Kuwait is a part of the Arab Nation.” (Kuwait Const. art. 1).
  • United Arab Emirates. “The Union is a part of the Great Arab Nation, to which it is bound by the ties of religion, language, history and common destiny. The people of the Union are one people, and one part of the Arab Nation.” (UAE Const. art. 6).
  • Yemen. “The Republic of Yemen is an Arab, Islamic and independent sovereign state whose integrity is inviolable, and no part of which may be ceded. The people of Yemen are part of the Arab and Islamic Nation”. (Yemen Const. art. 1).
  • Oman. “The Sultanate of Oman is an Arab, Islamic, Independent State with full sovereignty and Muscat is its Capital.” (Oman Const. art. 1).
  • Qatar. “Qatar is an independent sovereign Arab State. Its religion is Islam and Shari’a law shall be a main source of its legislations. Its political system is democratic. The Arabic Language shall be its official language. The people of Qatar are a part of the Arab nation.” (Qatar Const. art. 1).

Now, of course the borders within which the Jewish state should exist are disputed, and the treatment of ethnic and religious minorities in Israel is a pressing issue, as is the treatment of minorities in many Arab states (and one may ask, of course, about the absence of Jewish communities in many of those states and ask why the Jewish communities there are absent). But why is the idea of a Jewish nation-state remotely controversial, in a region dominated by self-defined Arab nation-states? Is the real objection to it fear about the reaction it will spark, rightly or wrongly, among Israel’s neighbors rather than any more principled objection? That is how it appears to me, anyway.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

9 thoughts on “The Israeli “Jewish Nation State” Bill: Is The Controversy Justified?

  1. The answer to this question, I think, quite simply lies in the fact that “Arab” refers to an ethnicity (originating from the Arabian Peninsula), while “Jewish” refers to Judaism, a religion. Your argument would be better posed if you were referring to the word “Islamic”—but then, of course, it wouldn’t hold water because “Islamic States” are few and far between (e.g. Iran).

    1. Antonio, thank you for the comment. I think that “Jewish” is a more complicated concept than you assume—it is a both a religion and a nationality. But in any event if you look at the constitutions of most of the states I’ve cited, you’ll see that in addition to defining themselves as Arab states they also define themselves as Islamic states in some sense (e.g., Palestine Amended Basic Law art. 4; Egypt Const. art. 2; Syria Const. art. 3; Jordan Const. art. 2; Saudi Arabia Const. art. 1; Kuwait Const. art. 2; UAE Const. art. 7; Yemen Const. art. 2-3; Oman Const. art. 1-2; Qatar Const. art. 1). Lebanon seems to be an exception. For these reasons, I think your point is incorrect.

  2. Ted: I frankly have no truck in this debate, but I’m puzzled why you think the self-definition of countries with questionable human rights records is of any relevance to Israel’s own self-definition. Is it due to their geographic proximity? Should the United States care more about Canada or Mexico’s constitutional self-definition than, say, France’s?

    1. JWB, thanks for the comment. The reason the Arab states are relevant here, in my mind at least, is that the issue of Israel’s self-definition has gotten caught up in Palestinian-Israeli conflict. So anyone who in principle thinks it wrong for Israel to identify itself as a Jewish state should presumably say the same thing about Palestine (or any of the other Arab states), yet we don’t see that kind of criticism. Why? There seem to me to be two possible explanations. First, some critics may object to Israel as a state rather than just to Israel as a Jewish state and their criticism of the bill may just be a proxy for their more extreme views. Second, some critics (and I think this is true of many Israeli critics of the bill) may be mostly worried about the Arab reaction to passage of the bill. This is a rational concern, but it begs the question: why do the citizens of the Arab states have any grounds to complain about Israel’s self-definition in light of their own?

      1. I see your point, but I’m not sure it’s either antipathy towards the Israeli project in general or uneasiness about the way Palestinians react. Could it just be a reflection of the wider debate about what the United States and the West signed up for when it helped establish the Israeli state in 1948?

        1. Well, I don’t think there was any question in 1948 that Israel was to be the Jewish state and Palestine (had the Palestinian Arabs and the surrounding Arab states accepted the partition plan) was to be an Arab state. Check out, for example, the text of the UN resolution, which makes this perfectly clear. So I’m not sure I understand your point.

          1. Ted: I try not to express an opinion about things I am not informed about, so don’t take my comment as aspiring to anything more than speculation. That being said, a common refrain among Israel partisans (and really, that is the best way to describe supporters of both sides, given how much discourse over Israel/Palestine, if it can be called that, has deteriorated) has been that Israel is an inclusive democracy, and that even Arabs are given most or all of the rights that Jews enjoy. It follows, according to Palestinian partisans, that Israel is no different from Palestine, and deserves no more deference than, say, Saudi Arabia.

            I reiterate, I have no truck in this debate; it puzzles me why it exerts such a pull given the magnitude of ethnic violence occurring in Burma or TAR. I am only offering a speculative defense of those who would criticize the law in light of your suggestion that these criticisms are motivated by double standards and/or antisemitism.

            1. I’m afraid I mistakenly deleted a sentence in the first paragraph. I meant to include a statement that Palestinian partisans will say this law belies the argument that all are equal in the eyes of the Israeli state.

            2. JWB, I agree with much of this. It is strange that this issue attracts so much of the world’s attention in light of troubles elsewhere. I think the status quo is probably okay and as a matter of practical politics the bill is probably needlessly provocative. But I think there is no good answer to the question I posed, unless one thinks that there should simply be no State of Israel or unless one thinks that the practicalities of the Arab world’s or the wider world’s reaction to the bill means that the bill is wrong in principle, which seems impossible to me.

Leave a Reply

Your email address will not be published. Required fields are marked *