Still equal on road signs.

Photographer: David Furst/AFP/Getty Images

Israel Can't Be an Unequal Democracy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It's official: As of this week, Israel is no longer the only democracy in the Middle East. The immediate reason is that Tunisia, which has a newly minted democratic constitution, held a free presidential election to follow its successful legislative elections. That’s a happy story: the more democracies in the Middle East, the better for its peoples. But there's another reason to keep a close eye on Israel's democracy: a draft basic law -- in essence, a constitutional amendment -- approved by the Israeli cabinet that represents a big step backward from Israel's traditional self-identification as both Jewish and democratic.

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. Six cabinet ministers voted against the bill. Israeli legal scholars have criticized the bill as detracting from the democratic character of the state vis-à-vis its Palestinian citizens. The distinguished centrist Ruth Gavison, whom the government commissioned to write a report on various proposed bills, came out against the adoption of any new constitutional “anchoring” of Israel's distinctively Jewish character -- because it would make divisions within Israel deeper rather than repairing them.

Netanyahu has promised a softened version of the bill -- but it remains unclear what version will go to the Knesset. Israel's attorney general, Yehuda Weinstein, has expressed reservations even about a weaker version.

On the question of language, the proposed bill approved by the cabinet is more explicit still. Israel has traditionally recognized Arabic as one of its official languages, and highway signs throughout the country, for the most part, identify place names in Arabic and Hebrew.  The bill makes Hebrew the only official language, demoting Arabic to a “special status.”

Once again, there's nothing fundamentally undemocratic about declaring an official language that is spoken by a national majority -- Tunisia, for example, makes Arabic its official tongue. The problem is that the aim of the law is evidently to derogate from Palestinian citizens’ equality by downgrading the status of the language they speak.

Constitutional symbols are crucial to the life of a successful democracy. Even when they aren't implemented in any practical way, they create a tone and identity that carries through the whole society. If the Israeli Knesset adopts a version of the basic law that projects the inequality of Palestinian citizens of the state, Israel may not become undemocratic overnight. But it will have started down a path that leads from democratic national pride to ethno-nationalism. And that would not be good for democracy, whether in Israel or elsewhere in the region.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net