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Jeremy Corbyn in Tunis at a 2014 event honouring terrorists who carried out the 1972 Munich Olympic massacre of Israeli athletes (Embassy of the State of Palestine in Tunisia)

Benjamin Netanyahu and Jeremy Corbyn don’t have a great deal in common. But one thing they do share is recognition that the essential character of the State of Israel is its Jewishness. They offer, however, opposing responses to this fundamental. For Netanyahu and the Zionist movement, Israel’s Jewishness is something to affirm and celebrate; for Corbyn and his allies, it represents Israel’s intrinsic evil and it is the reason they are fixated on this tiny plot of land.

Netanyahu’s position was articulated by a law recently passed by his government — a law that Corbyn opposes — that defines Israel as a Jewish State, the expression of the self-determination of the Jewish People. This legislation has provoked a negative reaction both in Israel and around the world. But to appreciate the nuances and significance of that reaction and the position of the Labour leader, one must first understand the provenance and purpose of the law.

The nation-state law was originally introduced as a Knesset bill in 2011 by a member of the centrist Kadima Party, which at the time was led by Tzipi Livni (now the leader of the Opposition and, rather cynically, a critic of the law), and had support from parts of the Israeli Left. The draft legislation went through various iterations and was debated by successive governments, and indeed was watered down from earlier versions, before being passed as a Basic Law in July of this year.

What is a Basic Law? Israel has no constitution. The State’s founders expected one to be written, but it has yet to materialise, due to disagreement over the content and even desirability of such a document. Instead, the Knesset has over the years passed a series of Basic Laws, which are designed to function as clauses of the eventual constitution. Most of them legislate how the Knesset and other branches of the state are to operate. Some Basic Laws are more than functional, however: one, passed in 1980, annexed the eastern portion of Jerusalem; another, passed a few years ago, requires a large Knesset majority or a national referendum on the surrender of any annexed territory.

Two Basic Laws concerned with human rights were passed in the early 1990s, thus safeguarding the “democracy” part of Israel’s “Jewish and democratic” character (insofar as democracy is taken to mean individual and minority rights). But there was no parallel Basic Law specifically guaranteeing the “Jewish” part, despite Israel being known worldwide as the Jewish State. Far from diminishing democracy in Israel, the intention behind this new nation-state law was to rebalance the equilibrium.

But this is only half of the story. Originally, the Basic Laws had no constitutional status. The plan was to pass them over time and, once that process was complete, assemble them as a single document, which would then assume constitutional status. The judiciary respected this approach for several decades, but Israel’s Supreme Court gradually deviated. Particularly following the passage of those two Basic Laws pertaining to human rights in the early 1990s, the Court established, not without controversy (indeed even without unanimity on its own bench), that all Basic Laws were to have immediate constitutional effect. In the process, the court arrogated to itself a much expanded power of judicial review — which for two decades has privileged the rights of the individual and minorities in the absence of a nation-state Basic Law.
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Anonymous
October 11th, 2018
7:10 PM
excellent article. How true.

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