The Nation-State Law: Negotiating Liberal Settler Colonialism

In 2018, the Israeli parliament, the Knesset, adopted the Basic Law: Israel—The Nation-State of the Jewish People, which has constitutional status. The law determines that “the Land of Israel is the historical homeland of the Jewish people” and that “the exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” The law then moves to enshrine the Jewish symbols of the state, affirm Jerusalem as its “undivided” capital, proclaim Hebrew as the single official state language, and demote Arabic from its status as an official language to one with an ambiguous “special status.”¹ The law also legalizes the establishment of Jewish-only settlements and “views the development of Jewish settlement as a national value.”² With the passing of the law, Israel's prime minister, Benjamin Netanyahu, declared, “Israel is the nation state of the Jewish people that honors the rights of all its citizens . . . When I make speeches around the world, I reiterate this is our country, the country of the Jewish nation.”³ He added, “There will be no second-class citizens and second-class voters . . . All of us will all be equal, all of us, Jews and Arabs, all citizens of Israel.”⁴ The juxtaposing of Israel's exclusively Jewish national nature and the claim of democracy and equality is not new, with the latter designed to justify the former—although the law itself mentions neither democracy nor equality.

Palestinians, especially the ’48 Palestinians (known as the Palestinian citizens of Israel), were outraged by the law and described it as advancing apartheid. The Palestinian member of Knesset Ahmad Tibi called the law “the end of democracy” and “the official beginning of fascism and apartheid.”⁵ The Palestinian legal scholar Mazen Masri has argued that the “main concern of the Nation-State Law is not really the ethnoreligious and inherently exclusivist principles and also the entrenchment of Israel's colonial nature and policy, the main problem is that this act demonstrates that Israel is closer to apartheid than democracy.”⁶ Others, including myself, have pointed out that the law simply affirms reality. As I have written elsewhere, “Palestinians have been experiencing apartheid, occupation and colonisation for decades. Just like the apartheid law in South Africa, the Nation-State Law doesn't signify the onset of apartheid; it enshrines it in law.”⁷ By contrast, the Palestinian lawyers and legal scholars Hassan Jabareen and Suhad Bishara of Adalah, the Arab Center for Minority Rights in Israel, have argued that the law is “radical in nature: far from being a mere continuation of the status quo, it confers unprecedented constitutional status on ordinary policies and destabilizes the prevailing legal distinction between the area within the Green Line and the 1967 occupied territories [since the law focuses on the ‘Land of Israel’ rather than the ‘State of Israel'].”⁸

In this intervention, I situate the Nation-State Law within the context of lawmaking in Israel, reading it in relation to Israel's Declaration of Independence (1948), the Law of Return (1950), the Citizenship Law (1952), and the Basic Law: Human Dignity and Liberty (1992). In doing so, I make the argument that the Nation-State Law should be read as part of a wider history of negotiating a liberal Israeli settler colonialism—a term coined by Shira Robinson.⁹ I offer a reading of the Nation-State Law that demonstrates how racial liberalism—liberalism that, in the context of settler colonialism, has been predicated on colonial and racial (and gendered) exclusion and domination of Indigenous peoples—in its different iterations stands at the heart of the Israeli settler-colonial project. I argue that the Nation-State Law, like Israeli law more generally, reflects a continuous process of reconciling a desired form of Israeli racial liberalism with settler colonialism. As Patrick Wolfe argues, “Race is colonialism speaking.”¹⁰ In the context of Palestine, racial liberalism operates as settler colonialism's regime of justification simultaneously through the mobilization of liberal institutions and rhetoric, the production of racial hierarchies between Palestinian Natives and Jewish settlers, and the enactment of differentiated regimes of citizenship and land rights. While the Nation-State Law could be seen as part of an illiberal, racist trend, it is important to note that racism is not necessarily always antithetical to liberalism, as racism is also part and parcel of liberalism's colonial, racialized, and gendered exclusionary histories and present workings. As Charles Mills argues, “Racism is not an anomaly in an unqualified liberal universalism but generally symbiotically related to a qualified and particularistic liberalism.”¹¹

I show how the Nation-State Law stages an intra-Jewish debate on what kind of liberal settler colony Israel should be. As my analysis demonstrates, across the Israeli political spectrum, from the extreme right to what is commonly called the Zionist “left,” the fundamentals of settler colonialism and Jewish national supremacy were never in question; the argument is merely over the form they should take. In this respect, the racial hierarchy enshrined in the Nation-State Law is neither an anomaly nor an aberration: it is integral to an Israeli racial liberalism endemic to the settler-colonial project.

1.

The Nation-State Law is not pioneering in enshrining Jewish supremacy and settler nationalism. Since the establishment of the Israeli state, Zionists have agreed on the principle that Israel is a Jewish state and the state of the Jewish people, but they have disagreed on the form of liberalism on which Israel should be premised and on how to define the Jewish character of the state. In trying to determine the liberal identity of Israel as a settler-colonial state, three terms constantly appeared and were negotiated against, and in relation to, each other: Jewishness, equality, and democracy.

Israel's Declaration of Independence was a key document in defining Israeli liberal settler colonialism. The document was formulated to navigate Israel's settler-colonial ideology and aspirations, the liberal self-image of Israel's founders, and the constraints of an emerging international liberal order and international human rights regime. The declaration foregrounds the precise settler colonialism Israel denies, while attempting to indigenize Jewish settlers by portraying them as an exiled people returning to their ancestral homeland, asserting that

This indigenization goes hand in hand with the declaration's liberal tone. Israel, it is stated, will be “faithful to the principles of the Charter of the United Nations” and will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex,” based on “full and equal citizenship and due representation in all its provisional and permanent institutions.”¹³ Israel's leaders recognized that the legitimacy of the Zionist settler-colonial project in the West was contingent on the employment of liberal rhetoric. The alignment between Zionism and liberalism guided the making of Israel's citizenship regime. As Robinson shows, Israel had to enfranchise some of the Palestinians who remained in Israel in order to establish its liberal credentials internationally in its quest to secure recognition of the state and Jewish sovereignty by the United Nations.¹⁴ The extension of citizenship to Palestinians was a liberal act, but it was a liberal act imbued with colonial, racialized aspirations. Despite Israel's rhetoric on equal citizenship, Israel's citizenship regime was not meant to equalize the status of settlers and natives. It rather served as an instrument of race-making, whereby racial subjects and citizenship were constituted in relation to each other. Racial hierarchies between Jews and Palestinians were inherent to the making of citizenship in Israel, and “while the Israeli citizenship regime viewed Jewish settlers as natural, authentic subjects of citizenship who were therefore entitled to automatic semi-birthright citizenship, it perceived Palestinian citizenship as a benevolent act by the state.”¹⁵ In the process, Jewish settlers were produced as indigenous to the land, while Palestinians were rendered aliens. Seeking to advance this distinction between Jews and Palestinians, it is no accident that Israel ended up with two citizenship paths—one for Jews and one for others, predominantly Palestinians. The decision to legislate the 1950 Law of Return (for Jews) and the 1952 Citizenship Law (for Palestinians), instead of adopting one universal law, was aimed at ensuring the racial superiority of Jewish settlers over Palestinian natives in relation to the access to citizenship and the type of citizenship each can enjoy. Still, Israel was careful to draft the citizenship law in seemingly universal terms of nondiscrimination and avoided including an explicit clause that discriminates between Jews and Palestinians.¹⁶ The logic behind this decision was elucidated by Ben Gurion: “I suggest that the citizenship law will apply in practice only to non-Jews, without needing to mention that . . . it will apply to everyone except for Jews.”¹⁷ The establishment of a discriminatory citizenship regime couched in seemingly universal terms was, Robinson argues, the result of Israel negotiating its liberal and colonial ambitions.¹⁸ It, however, was not as much a case of negotiating liberal ambitions against colonial aspirations as it was about negotiating the versions of racial liberalism and liberal colonialism Israel should adopt.

One of the most significant moments of negotiating the liberal dimensions of Israeli settler colonialism was the legislation of the Basic Law: Human Dignity and Liberty in 1992, which specified in article 1: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a basic law the values of the State of Israel as a Jewish and democratic state.”¹⁹ While some may read the law as a sign of the demise of Israel as a settler-colonial project given its gestures to “human dignity and liberty,” in reality it merely reformed Israeli settler colonialism to make it “more liberal.” The work on the law came shortly after the outbreak of the first Intifada, which drew international attention to the Israeli occupation of Palestine and oppression of Palestinians. Dan Meridor, then the justice minister on behalf of the Likud Party and a staunch liberal, was a main driver behind the law, along with professor Amnon Rubinstein of Shinui. Meridor explained his support of the law: “This proposal . . . aims to foreground the values of Israel as a Jewish and democratic state in a Basic Law. This combination, of a Jewish and a democratic state, is important and is at the heart of Zionism. We are a state of the Jewish people, but we are also a democratic state. There is no need to say ‘but,’ because there is no contradiction between the two.”²⁰ One of the main disputed issues in the parliamentary debates about the law was whether to include the principle of “equality.” Religious members of the Knesset objected to the inclusion of equality because they feared it would impinge on religious issues.²¹ As a compromise, the principle of equality was excluded from the text, but the term “democratic” appeared. The Palestinians in Israel featured in the discussions over the law mainly with regard to one issue: how the law would impact judicial oversight of breaches of rights relating to land and housing and whether remedy could be given by the court to Palestinian individuals and on what grounds. Essentially, the debate was whether a Palestinian citizen could be denied the opportunity to buy a house in certain neighborhoods and, if so, whether this discriminatory act would be subject to judicial review. In deliberations by the Constitution, Law, and Justice Committee, Uriel Lynn of the Likud Party framed this issue as a core liberal question, calling to differentiate between a discriminatory act by public and state institutions (which should warrant court intervention) and an action by private actors who might refuse to sell a property to a Palestinian (which should not warrant court intervention).²² In her response to Lynn, Sholamit Aloni, a champion of human rights in Israel, did not address the core settler-colonial premise at the heart of the question. Instead, she asked, “What do you think is more dangerous, an intervention by the legislative branch and the government, or an intervention by the court?”²³

The enactment of the Basic Law was also considered a liberal triumph by right-wing Zionists who saw themselves as committed liberals (in the Israeli context, being liberal is not necessarily synonymous with being on the “left” side of the map—the Basic Law was, after all, adopted under Shamir's Likud government). The triumph was possible precisely because settler colonialism and Zionist nationalism were not disputed or refused.

2.

In the 2010s, a new phase in the debate over the liberal character of Israeli settler colonialism emerged, in large part in response to the ways in which the Supreme Court had utilized the Basic Law: Human Dignity and Liberty. A landmark ruling by Israel's Supreme Court, known as the Kaʾadan case, haunted proponents of the Nation-State Law and served as the main motivation for the law. In the late 1990s, Adel and Iman Kaʾadan had sought to buy a plot of land to build a home in Katzir, a Jewish-only settlement that was established in order to enshrine Jewish control over Wadi Ara, a main transportation link between the central and northern parts of Israel.²⁴ The couple had been refused purchase by the central land administration because they were Palestinians. They therefore sought remedies in the Supreme Court, where they were represented by the Association for Civil Rights in Israel (ACRI). The core of their case surrounded the question of equality, a core liberal value, and whether it was possible to read equality into the Basic Law. While the Supreme Court did read equality into the law and therefore awarded the plaintiffs remedy, the notion of equality it advanced was tied to, and imbricated in, the Zionist settler-colonial project. The intervention of the court was intended to reframe, not challenge, the terms of Israeli liberal colonialism. Judge Aharon Barak wrote, “We do not accept the conception that the values of the state of Israel as a Jewish state justify discrimination by the state between citizens on the basis of religion or equality.”²⁵ In response, Salai Meridor, the chair of the Jewish Agency (and the brother of Dan Meridor, who had advanced the adoption of the Basic Law in 1992), said, “The main issue is not equality. We're all for equality. . . . Along with equality, Israel must safeguard its national and security interest.”²⁶

Palestinians in Israel saw in the decision a major victory. Muhammad Barakeh, a Palestinian member of the Knesset, stated that the decision “moves Israel toward being a democratic state for all its citizens, and not an ethnic democracy,” while Adel Kaʾadan declared, “We know today that this is a state of all its citizens.”²⁷ However, the ruling was neither transformative—the court did not intend to remake the State of Israel from a Jewish state into a “state of all its citizens” (whatever that phrase might mean)—nor decolonial; it merely redrew the relationship between liberalism and settler colonialism. The judges sought to advance a version of Israeli liberalism that was grounded in a notion of “equality,” but one that did not undermine Israel as a Jewish settler-colonial state and the racial superiority of Jews within it. The court determined that Israel Land Administration, as a public state body, could not transfer land to the Jewish Agency for the purpose of establishing a settlement based on discrimination between Jews and Palestinians. That said, the fundamentals of settler colonialism and the question surrounding the legitimacy of Israeli and Jewish ownership of land dispossessed from Palestinians were not addressed. As Jabareen argues, the Kaʾadan case is about how Palestinian citizens should be included in the Jewish-Zionist project.²⁸ This case, he suggests, is not about the historical right of the plaintiffs to the land as members of the Palestinian Indigenous people but about the right of individual Palestinians “to purchase a house on expropriated Arab land.”²⁹ In fact, one of the main conditions of remedy was that the plaintiffs, as stated by Supreme Court Judge Aharon Barak, accept “the state of Israel as a Jewish and simultaneously democratic state.”³⁰

For the Israeli new right, the Basic Law: Human Dignity and Liberty was too liberal (or, perhaps more accurately, did not express the right kind of racial liberalism). Yariv Levin, the former minister of tourism, for example, claimed that the Basic Law creates “an imbalance with regard to the Jewish identity of the state.”³¹ Thus one way we can understand the Basic Nation-State Law is as enacted against the earlier Human Dignity and Liberty Basic Law and intended to undo the Kaʾadan ruling by writing into the law the legality of Jewish-only settlements. Avi Dichter of the Likud explained that he introduced the law “to prevent even the slightest thought, let alone attempt, to transform Israel to a country of all its citizens.”³² Ayelet Shaked, then the minister of justice, stated that the Nation-State Law was “realigning the train track that was twisted a quarter-century ago.”³³ She added, “The democratic values of the state are already enshrined in a Basic Law. We now have an opportunity to enshrine also the Jewish values.”³⁴ Similarly, Amir Ohana, chair of the Special Committee for the proposed Nation-State Law, declared that the new law was “one of the most important legislations since the establishment of the State of Israel, and certainly since 1992.”³⁵

As with previous cornerstone legislation, in the discussions over the Nation-State Law, in both the Knesset and the Special Committee, Jewish members of the Knesset from across the political spectrum and Israeli civil society agreed on the foundational principle that the State of Israel is the national home of the Jewish people. With exceptions, the vast majority also agreed that the right to self-determination is an exclusive right of the Jewish people. Even those who opposed the law for being exclusionary, like the legal scholar Mordechai Kremnitzer, distinguished between the national rights of Jews and the civil rights of Palestinians.³⁶ The State of Israel, they argued, is the national home of the Jewish people and the state of all its citizens, including the ’48 Palestinians.

Opposition to the Nation-State Law ran the political gamut. Figures such as Benni Begin, Dan Meridor, and Tzipi Livni (all associated with the political right in Israel), alongside members of Yish Atid, the Labor Party, and Meretz (all self-proclaimed “centrist” or “lefties”), opposed the law. Proponents and opponents were divided over, in the words of Nissan Slomiansky of the Jewish Home Party, how to “define the meaning of the [Jewish] home.”³⁷ Those who opposed the law argued that Israel's identity as a Jewish state was already set in stone and articulated in its Declaration of Independence and other laws, and therefore the new law was not needed. Even ACRI, the largest civil rights organization in Israel, joined this colonial line of argument that naturalizes the idea that Jews have a superior right to self-determination in historic Palestine, saying, “It is not that someone in the world is saying that this country is not ours or that there is a concrete threat on this claim. The opposite is true. There is stability in the way that the world looks at Israel as the nation-state of the Jewish people and how we enshrine this in our laws and culture.”³⁸ Opponents of the law based their opposition on both ideological and strategic commitments to liberalism; the two went hand in hand. Tzipi Livni, the former Foreign Minister, articulated this entwinement in her statement against the law:

Zionists, like Livni, who rejected the law asked that it enshrine equality and democracy alongside the Jewish definition of the state. In this spirit, Benny Begin, for example, put forward his own bill for a nation-state law, basing it on the wording in Israel's Declaration of Independence. According to his proposal, the law would define “the State of Israel as the national home of the Jewish people that is based on freedom, justice, and peace, as envisaged by the prophets of Israel, and ensure equality to all its citizens.”⁴⁰

Edward Said has argued that “there was a willing identification between Western liberal discourse and Zionism. . . . For the Arab Palestinian the concrete meaning of this hegemonic relationship was disastrous.”⁴¹ In light of this intimate relationship between liberalism and Zionist settler colonialism, the Nation-State Law has been widely criticized in the West—not because it is outrageous per se but because it removes the pretense of (a particular version of) liberalism on which liberal Zionists and their allies relied in their support of Israel. Rick Jacobs, the head of the US-based Union for Reform Judaism, exemplifies this anxiety: “The damage that will be done by this new nation-state law to the legitimacy of the Zionist vision . . . is enormous.”⁴² Ironically, a version like the one suggested by Begin would have been liberal enough to be accepted by the West as legitimate, demonstrating the validity of the liberal itinerary of Zionism. The fact that the law simply reflects reality matters less within a world order that accepts settler colonialism; the concern of the West is not the ongoing colonization of Palestinians (and the racist hierarchies produced by that process) but rather the absence of the liberal performance in the black letter of the law.

In July 2021, Israel's Supreme Court upheld in a 10–1 decision the constitutionality of the Nation-State Law, rejecting fifteen petitions that were submitted against it, most of them centered on its discrimination against ’48 Palestinians.⁴³ In its ruling, the court sought to rectify Israel's liberal image and ethos by reading the law in relation to previous legislation including Basic Law: The Knesset and Basic Law: Human Dignity and Liberty, which declares Israel as a Jewish and democratic state. The court's president, Esther Hayut, writing for the majority, said, “This basic law is but one chapter in our constitution taking shape and it does not negate Israel's character as a democratic state.”⁴⁴ The law, the court added, does not discriminate against ’48 Palestinians nor does it deny them rights, since “equal rights are granted to all citizens of the state, including minority groups,” and the right to national self-determination of Jews “does not deny recognised personal or cultural rights [of others].”⁴⁵ George Karra, the only Palestinian judge on Israel's Supreme Court, was the sole dissenting voice, noting that the law creates “unconstitutional arrangements that negate the heart of the state's democratic identity and shake the very foundations of the constitutional structure.”⁴⁶ The Supreme Court decision is, thus, at its core, another attempt to navigate Israeli settler colonial liberalism and to negotiate the racialized liberal legal forms of Jewish national superiority.

3.

The main question is not how liberal or illiberal Israel or the Nation-State Law are. It is also not about whether Israeli settler colonialism can be made progressive enough to ensure equality. These questions trap us within the liberal-racial logics of settler colonialism. As this piece has shown, lawmaking in Israel, including the Nation-State Law, has always been integral to the Israeli settler-colonial project and to contestations over the (racial) liberal form it should embody. Liberal legal governance of questions of self-determination, citizenship, and property and land played—and continue to play—a key role in the erasure of Palestine and the domination of Palestinians. The Nation-State Law is only the newest legal frontier in this erasure and another chapter in the racial history of Israeli liberal settler colonialism.

Acknowledgment

I would like to thank Samera Esmeir, J. Kēhaulani Kauanui, Jessica Ling, and Noam Peleg for their insightful feedback and comments. Any errors are mine.

Notes

Works Cited