Basic Law proposal: Israel as the Nation State of the Jewish People – legal justification

By December 30, 2015Constitution, nation state

Aviad Bakshi

The goal of this position paper is to support the proposed Basic Law, Israel as the Nation State of the Jewish People, and to present the legal justifications for the enactment of this Basic Law.

 

While it is true that the principle of Israel as the Jewish people’s nation-state had been firmly anchored in Israeli law and legislation for dozens of years and that it reflects the traditional values of the Israeli state; over the past twenty years there has been a dramatic erosion in this status by Supreme Court rulings. A fundamental circumstance in Israel’s present legal reality, is the lack of a legal anchor for Israel’s crucial dimension as the nation-state of the Jewish people. This Basic Law proposal is in line with the accepted traditions of Israeli law and simultaneously fills a practical legal need caused by deviation from this tradition by the Supreme Court rulings described above.

 

Traditionally, the legal values of Israel rested on court decisions in a common law system. In the common law era, the Supreme Court defended the principle of Israel as the nation-state of the Jewish people as well as the principles of the civil rights of its citizens. This harmony of of values  characterized Israel since its declaration of independence. During the 1990’s, however, the Israeli legal world underwent a constitutional revolution: the constitutional values of Israel ceased relying upon common law and were formalized in two Basic Laws passed in1992, expansively implemented by the Court. In the wake of the Knesset’s opposition to this Court-enacted constitutional revolution, the crafting of values-based Basic Laws ceased, and since 1992, no new Basic Law has been passed. Without any legislative intent, Israel passed from a legal system based on common law focused on the two characteristics mentioned above to a formal legal system which enforced only one of these two national characteristics. Without any real intent or even deliberation, the historic balance between the principles of Israel as a nation-state and of Israel as a country respecting the individual human rights of its citizens was shattered; the principle of a Jewish state now occupies an inferior position in the hierarchy of Israeli legal norms.

 

To document this untoward predicament, this position paper sets forth legal research into the following concrete issues defining Israel’s identity as the nation state of the Jewish People: the granting of lands and incentives for the establishment of Jewish settlements, the primacy granted in Israel to the Hebrew language, political participation of parties which reject the existence of Israel as the Jewish state, and Israeli immigration policies towards those who are not eligible for the “right of return”.

 

The conclusions of this legal research is crystal clear: Over the past twenty years we have witnessed significant erosion of the weight granted by the Supreme Court to the Jewish character of Israel- a dramatic abandonment of the path pursued during the first 44 years of Israel’s existence.

The need to legislate a Basic Law which will anchor the principle of Israel as the nation-state of the Jewish people in law is thus clear. This Basic Law, together with the existing Basic Laws advancing individual human rights, will return the Israeli legal system to its common law roots consistent with the values expressed in the Israeli declaration of independence, will re-establish the healthy balance in fundamental values, and will reaffirm the principles and sentiments of the vast majority of the Israeli public for whom Israel is both the Jewish state and a democratic state.

 To the full position paper  (Hebrew)

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