Basic Law: Israel as Nation-State—National Honor Defies Human Dignity and Universal Human Rights

Orit Kamir. Israel Studies. Volume 25, Issue 3. Fall 2020.

Introduction

The Basic Law: Israel as Nation-State was not crafted to pronounce any arrangement or instate any procedure. The article claims that the basic law was constructed to elevate the discourse of national Jewish honor and the legislative and executive branches that champion it, while downgrading human dignity and rights, the basic law that constitutes them, and the judiciary that enforces them. Israel, and the Zionist movement that created it, have always vacillated between a devotion to human dignity—the absolute value accorded to every human being as such—and a commitment to the idea of honor, the honor of the Jewish nation in particular. The pursuit of national honor dictates an attribution of a hierarchy of values to different people and national groups; it goes hand in hand with internal, group “loyalty” at the expense of the humane treatment of “others”. It encourages admiration of a “strong leader” who symbolizes the collective. This article claims that the enactment of Basic Law: Human Dignity and Liberty was understood as giving precedence to dignity over national honor, and to the judiciary over other branches of government. In contrast, the enactment of Basic Law: Israel as Nation-State was designed to enhance the honor of the Jewish nation, to make it “great again”. The article claims that in order to understand the new basic law in context, it must be read together with the fierce attempts of Israel’s right-wing legislature and government to expel illegal immigrants, including asylum seekers, to confiscate Palestinian land and to weaken the judicial system.

In the aftermath of wwii and in direct response to it, the international community chose to pledge allegiance to the social order of universal human rights, which is based on the moral foundation of human dignity: the unqualified recognition of the worth attributed to every human being per se. The sense of horror evoked by the dehumanization and destruction of the war haunted humanity for the seventy years that followed, fostering an international commitment to human dignity and human rights. Yet, in the second decade of the twenty-first century this commitment has been subsiding. In my book Betraying Dignity, I argue that across the globe, the commitment to dignity and the social order that is based on it has been replaced, in many parts of the world, by social structures that derive from, manifest and enhance a very different fundamental value: that which anthropologists label honor.

Instead of fostering dignity’s equal regard to every individual human being, the pursuit of honor promotes fierce competition for dominance and prestige, both personal and collective. In this short essay I claim that Israel’s 2018 Basic Law: Israel as the Nation-State of the Jewish People, exemplifies Israel’s retreat from its declared allegiance to human dignity, and its renewed pursuit of honor, with an emphasis on national honor.

In fact, I argue that read in context, together with additional socio-political developments, this Basic Law may best be understood as backlash legislation against the earlier, 1992 Basic Law: Human Dignity and Liberty. The Basic Law enacted in the early 1990s was celebrated as Israel’s Bill of Rights, a pledge of allegiance to human dignity and human rights. The new Basic Law points in a different direction, marking Israel as the nation-state of the Jewish people and privileging the Jewish collective in Israel over other citizens.

To lay the ground for the argument regarding the new Basic Law, I begin with a concise definition of dignity and honor, as these terms are used here. I embrace a narrow definition of each value, highlighting the distinction between them to facilitate lucid comparative discussion and to minimize overlap and confusion. Next, I shall present three socio-legal developments which took center stage in Israel during the second decade of the 21st century: the institutional hostility towards illegal African immigrants, including asylum seekers, and the repeated attempts to incarcerate and deport them; the harsh condemnation, by right wing politicians, of the judicial system, for its commitment to universal values at large and human dignity in particular; the shift in Israel’s political discourse from an ideological rhetoric to manifest reverence for the nation and its leaders and loyalty to them. Finally, I argue that these developments are the forerunners that situate Basic Law: Israel as Nation-State as an honor-based backlash against human dignity and rights.

Human Dignity and Honor as Fundamental Moral Attitudes

Human dignity is the inherent positive value which the enlightenment-based worldview ascribes to all members of the human family. It is an innate element of our humanity. our being, we can think of it as the moral stamp of “human quality” similarly imprinted in each of us from womb to tomb. Dignity does not depict an empirical value; it constitutes people as normatively worthy by virtue of their humanity. In line with Kantian philosophy, since human dignity is the moral value of human subjects as such—it must always be acknowledged, preserved and upheld fully and unconditionally. It is absolutely forbidden to forsake human dignity and treat members of the human category in a way that disregards their intrinsic human value, that is—to treat any human being as an object, as a mere means to an end.

On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights, which determines in its first article that “[a]ll human beings are born free and equal in dignity and rights.” In its opening statement, the declaration proclaims that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. In this worldview, human rights are inseparable from human dignity: our dignity gives rise to our rights. By dint of human dignity and rights we are all equal, and equal dignity and rights are the basis of our freedom.

This statement famously came in the aftermath of WWII and the unprecedented acts of brutality that members of the human family committed against each other. The horror of it and realization of the potential for cruelty and self-destruction precipitated the declaration that proclaimed human survival and prosperity (“freedom, justice and peace”) based on a universal acceptance of the tenet of human dignity. More than seventy years later, human dignity is widely accepted as the foundation of contemporary human rights-oriented culture.

Since the Universal Declaration, human dignity has been the focal point of enlightenment civilization; it underlies the universalistic, humanistic, secular moral order many of us adhere to. Yet this veneration of universal human dignity is culture specific; it is by no means shared by all societies and cultures worldwide, not in the present nor in ages past. Many cultures have relied on alternative value systems and their alternative focal points to ascribe value, worth to their own members and other groups. The most popular and successful of such cultures have been based on honor-and-shame value systems. Traditional societies in most parts of the world have adhered to—and often still do—honor-and-shame foundational attitude in their logic, psychology and economy. What distinguishes a dignity culture from an honor culture is that the former ascribes to every human being absolute and boundless universal worth, whereas the latter ascribes worth, prestige and standing according to one’s relative adherence to the group’s norms of honor.

In honor-and-shame societies, honor is the relative value attributed to and felt by a member of society vis-à-vis peers. Such a value is neither universal nor innate to all members of a group per se; quite the contrary, it implies comparative social status, prominence, rank and standing in the hierarchical structure of a specific group. It is admired and sought after, because one’s accumulation of it promises superiority over others, hence a better life and improved prospects of survival and prosperity. In honor-based societies, shame is dishonor: the absence of honor due to inherent lack or circumstantial loss. So, for example, in many honor-based societies a show of cowardice leads to loss of honor and accumulation of shame. Shame may be attributed to those born into a “low cast” or otherwise despised group.

In most honor-and-shame societies, honor is bequeathed in part but mostly earned through careful and disciplined adherence to the norms defined by the relevant honor code. Different honor societies adhere to different honor codes, i.e., different sets of social norms, sometimes formally acknowledged and often unconsciously internalized. Yet in many honor societies, proud, “manly” self-assertion, bravery, extreme sensitivity to slights, and unreserved, pronounced loyalty to group and leader are prevailing honor-norms. A meticulous observance of appropriate honor norms entitles a person to honor; failure bestows shame. Honor must be ceaselessly achieved, enhanced, accrued and inevitably lost, while shame is dreaded and avoided at all cost.

Honor is reserved exclusively to group members. Outsiders, “Others”, are deemed honorless, i.e., lacking honor completely and belonging outside the “sphere of honor”, hence unprotected by social rules: offending such outsiders involves no loss of honor and therefore carries no consequences. The strong distinction between insiders and outsiders is crucial for the sense of identity of members of an honor-based society. Maintaining their insider status justifies the harsh struggle for honor.

In an honor-revering society, peers are in perpetual competition for honor, always measuring themselves against all others. Since social hierarchy is a pyramid and honor corresponds to a position in the pyramid, one member’s promotion must entail others’ demotion. The logic of the honor competition is, therefore, as Bill Miller aptly put it, that of a zero-sum-game. Whereas loss of some honor relegates a group member down the social ladder towards the bottom of the pyramid, complete loss of honor entails loss of group membership altogether: a member who loses all honor becomes an outsider. For many group members, this is a fate worse than death.

Groups that encourage standards of honor among their members are likely to exhibit similar honor patterns of conduct in their relationships with other groups. Sport clubs whose members compete for honor amongst themselves are likely to compete for honor against other clubs. Similarly, states in which honor competition prevails among their citizens are likely to manifest similar conduct in their relations with other states.

As this short overview shows, the logic of an honor-and-shame foundational attitude differs dramatically from that of a universalistic, humanistic, dignity-based one. Nonetheless, many around the world are intimately familiar with both, combining them or fluctuating between them in innumerable ways. The same holds true for groups, from classrooms and sports teams to countries and nations. A nation’s policies, rhetoric and legislation reveal whether its attitudes are grounded in honor or dignity, while also strengthening such commitment.

Israel Between Honor and Dignity

In previous publications I argued that Political Zionism was openly and explicitly committed to the transformation of Jews (Jewish men) into men of honor. Buying into the European vision of Jews as the honorless outsiders of European nations, Political Zionism aspired to mold Jews into an honorable nation in its own right. Herzl and Nordau’s portrayal of national honor was central to their Zionist vision. Moreover, all Zionist factions adopted this element, and the Zionist movement at large devoted resources and energy to the creation of Nordau’s New Jew, i.e., the Jewish Man of Honor. Zionist pilgrims and their Sabra sons distanced themselves from “Diaspora Jews”, building muscles, carrying arms and training in “manly” self-assertion. They were to be the true sons of the bold Maccabees. The Jews of the Yishuv in Mandatory Palestine, as well as the Jewish population of the new state of Israel were immersed in this vision. The establishment of the IDF and ongoing war with the neighboring Arab states contributed to the strengthening of this vision.

Concomitantly, Israel’s handling of its Holocaust trauma increased the all-consuming Zionist hunger for national honor. The systematic extermination of European Jewry was the ultimate offense against human dignity. It was the definitive denial of and assault on the sacredness of humanity and the value of every individual human being. Indeed, the unprecedented dimension of this offense to human dignity led the United Nations to establish dignity as the fundamental value of the new, post-war era. At the same time, Jews in general and the Israeli Jewish community in particular, experienced the Holocaust as a colossal affront to their national honor. In mainstream Israeli discourse, victims and survivors of the Holocaust were typically disparaged as “sheep to the slaughter”, i.e., as honorless exilic Jews who shamed the nation by not standing up for themselves, by not fighting back as “men of honor” must, and by allowing their nemesis to subdue them and display superiority over the entire Jewish nation. The sense of national shame was overwhelming, and required extraordinarily honorable achievements to relieve the shame and restore a sense of national honor.

One such achievement was the apprehension in 1961 of Adolf Eichmann, the Nazi official who directed the extermination of the Jews. The 1967 war (the Six Day war), in which Israel conquered its neighboring Arab states and took over significant territories from Jordan (“The West Bank”), Egypt (The Sinai desert) and Syria (the Golan heights), was another major achievement that restored a sense of national honor. The 1973 war (the Yom Kippur war) was once again experienced as disgraceful and a stain on Israel’s national honor; the following Entebbe Operation (on July 4, 1976) was thought to redeem national honor. Israel continued to value itself in terms of honor, and to vacillate between euphoric honor to devastating shame.

Viewed against this background, Basic Law: Human Dignity and Liberty was a historic turning point. Its enactment was a strong signal that Israel was ready to adopt more fully the discourse, worldview and psychology of human dignity. In terms of language, this basic law is laconic, abstract and inconclusive, a mere portion of a comprehensive Bill of Rights that liberal Knesset Members failed to legislate. Most noticeably, it makes no mention of equality, leaving this basic value unprotected. Nevertheless, Israel’s Supreme Court declared it to be the country’s Bill of Rights, reading into it the protection of rights not specified in the letter of the law. So, for example, the Court read the protection of human dignity as precluding group-based discrimination, thus reading equality into a statute that does not name it.

It was the Supreme Court’s judicial interpretation and rhetoric that made the basic law into a socio-cultural turning point, placing human dignity and the derivative universal human rights at the heart of Israel’s legal ethos. Chief Justice Aaron Barak did more than anyone to strengthen the hold of dignity in Israel’s legal system. Whereas liberal circles applauded this socio-legal reform and willingly cooperated with it, conservative right-wing circles rejected and resented it, arguing that the Court overstepped its boundaries in advancing an ideological revolution that required wide public support, support which was never secured. There was no explicit reference in Israel’s public discourse to the demotion of national honor as a consequence of the elevation of human dignity; yet this connection was strongly sensed, particularly in circles that opposed this development. Nevertheless, despite loud opposition and discontent, human dignity was embraced by Israel’s public discourse, curbing the exclusive reign of national honor.

Twenty-eight years after the enactment of Basic Law: Human Dignity and Liberty, the conservative right wing, which now felt secure in its political power, led a backlash revolution to diminish the eminence of human dignity and rights, and reestablish the sovereignty of national Jewish honor. I suggest that this counter-revolution is evinced in four inter-related occurrences that support and enhance each other: the fierce attack on African asylum seekers; the offensive against the Supreme Court and the judicial system at large; the promotion of rhetoric endorsing loyalty to nation and leader; and the enactment of Basic Law: Israel as Nation-State. In effect, the Law is backlash legislation against the rule of human dignity, and part and parcel of a move to reinstate national honor.

Dehumanization of Illegal African Immigrants (“Infiltrators”)

From the end of the 1990s and until 2012, 30-40,000 Africans entered Israel illegally; many of them are asylum seekers from disaster zones, and others migrated seeking work and livelihood. In 2012, Israel completed building a wall on its southern border with Egypt to prevent the entrance of more African migrants. The Convention and Protocol Relating to the Status of Refugees UNHR (12.2010) crafted in 1951 in the aftermath of the Holocaust, was ratified by Israel in 1954. The Convention states that refugees shall not be returned to a country in which life and freedom are endangered. In accordance with the ideal of human dignity, such refugees must be guaranteed basic universal human rights, including freedom of movement, the right to work, and equal treatment without prejudice based on religion, race or sex. A refugee must be treated with dignity as a member of the human family.

It was not until 2009 that Israel finally acknowledged its responsibility to examine asylum requests. Even then, it did everything in its power to avoid reviewing the requests, almost none of which were examined, recognized and accepted. Since 2012 this passive tactic of ignoring asylum requests has become an active battle: the Knesset passed a law, initiated by the government, permitting the state to incarcerate illegal immigrants, pending deportation, for three years or more. When, at the end of 2013, the Supreme Court (sitting as the High Court of Justice) struck the law down as constituting an affront to human dignity and human rights, the Knesset reenacted it right away with minor changes. Again the law was struck down as an affront to human dignity and basic human rights, and again the Knesset reenacted it, this time authorizing only twenty months of incarceration. When this third version of the law was brought before the Court, the period of incarceration without trial was reduced to one year.

This fierce and unprecedented battle between the legislative and judicial branches gave rise to unparalleled attacks by Knesset members on asylum seekers, illegal immigrants, the Supreme Court, the judiciary, and Basic Law: Human Dignity and Liberty. Africans were dehumanized, portrayed as a “cancerous growth” on the national body and an inherent danger to the Jewish character of the state. The Court was accused of undemocratic judicial legislation, castrating and replacing duly elected members of the legislature. Human dignity and rights were said to override the will of the people and serve the legal system in its attempt to form a left wing, liberal dictatorship. This public atmosphere, instigated by the prime minister, ministers and Knesset members, reached its peak in 2017, when the government, frustrated by the judicial intervention, t decided to deport illegal immigrants (including asylum seekers) to two African countries (apparently Rwanda and Uganda) which apparently agreed to accept them in return for significant payment. To justify this extreme measure and counter the outcries of human rights organizations over this affront to the human rights of the deportees, the government unleashed poisonous rhetoric, crudely dehumanizing the African immigrants, the judiciary and human rights organizations: their commitment to universal human dignity and rights was portrayed as disloyalty to the Jewish nation and the state. The Africans were accused of threatening the Jewish majority and Jewish character of the state, and those who supported them, chiefly the courts and human rights organizations, were denouncedas internal enemies who used the Basic Law: Human Dignity and Liberty to stab the nation in the back and cause its downfall.

This phenomenon combined the ruthless dehumanization of a small, helpless minority with vicious attacks on the ideal of human dignity affirmed in the Basic Law, and on the judiciary that upheld and promoted it. The minority, human dignity and the Court were all portrayed as threats to national integrity, sovereignty and honor. The Africans were portrayed as external enemies, the courts and human rights organizations as internal ones, hence traitors to nation and state. Human dignity as pronounced in the Basic Law was the tool of traitors who would hold the external enemies above the Jewish nation.

Furthermore, the Court’s repeated interventions in legislation was described by many in the right wing as an attempt to humiliate the legislator, the government and the nation and to override Israel’s democratic and justified attempt to defend itself against hostile infiltration, “penetration” and take-over.

The system of checks and balances was redefined as offensive to the honor of the legislative and administrative branches, and with them—the honor of the whole nation. The Court’s review of the other branches through the lens of human dignity was constructed as an honor-driven maneuver, used by the Court to humiliate the other branches and enhance its own status. The government and Knesset members encouraged a public outcry to restrain the disloyal, honor-driven court, demote human dignity and rights, revoke the Basic Law, and expel the “foreigners” who “infiltrated our sphere” and threaten its Jewish character, and thereby, the nation’s sovereignty and honor.

Fierce Attack on the Judicial System and the Supreme Court

The attack on the dignity and rights of illegal immigrants was just one battle launched by right wing Knesset members and members of the Israeli government against the judicial system—the Supreme Court in particular—for its commitment to Basic Law: Human Dignity and Liberty. A parallel campaign was led by the right wing’s minister of culture in the context of artistic freedom of speech. The minister (Miri Regev) attempted to withhold public funding from theaters, film makers and cultural centers that presented works she deemed traitorous and offensive to Jewish honor. Whenever her decisions were overturned by the Ministry of Justice or the courts, her brutal attacks grew to include the legal advisors, judges and justices. In this context, too, legal positions deriving from the Basic Law, were criticized and vilified as antithetical to national sovereignty and honor.

The attacks on the judicial system reached an unprecedented level in May 2015, in the context of the dignity and human rights of Palestinians. The Supreme Court, sitting as the High Court of Justice, ruled that several houses built in a Jewish settlement in the occupied West Bank (Beit El) should be demolished, because they were built illegally on private Palestinian land. This decision was based on the land owners’ rights to property, which under Israeli law derives from their human dignity and is protected in the Basic Law. Right-wing Knesset Member Moti Yogev responded to the judicial decision by declaring that “we should demolish the Supreme Court with a D-9 bulldozer”. This shocking statement became a slogan, often repeated by the extreme right. Minister of Justice Ayelet Shaked who was also a member of KM Yogev’s right wing party, refrained from using violent bulldozer rhetoric, but declared that her goal was to revolutionize the legal system and change its character. The minister’s declared aim was to nominate “conservative” judges and justices who would revoke the “liberal” disposition of the judiciary.

The efforts of the Israeli Right to nominate judges and justices who would narrow the scope of universal human rights derived from Basic Law: Human Dignity and Liberty finds its parallel in the American effort to pack the courts with right wing judges and justices in the hope that they will overturn Roe v. Wade and restrict abortion. Conservative judges and justices who seek to minimize the effectiveness of the Basic Law, would attempt to turn back the clock to the days before its enactment, when honor and national honor ruled without being disrupted by concerns over dignity and human rights, particularly those of “foreigners”, “infiltrators” and Palestinians. In January 2019, just as the Knesset dissolved in preparation for elections, the Minister of Justice announced that she had accomplished her mission.

Politics of Adoration and Loyalty to Leader and Nation

National pride has always animated Israeli Jews, and some Israeli prime ministers (particularly David Ben-Gurion, and Menachem Begin) enjoyed deep admiration as great leaders of the nation. Prime Minister Benjamin Netanyahu, who has held this position throughout the second decade of the 21st century, instigated a new and unprecedented discourse. In January 2017, Netanyahu was investigated for fraud and bribery in several separate cases, but the process stalled and he was not indicted until January 2020. During the three year interim Netanyahu constructed himself as a persecuted victim, and called on his supporters to show blind, uncritical loyalty to their persecuted leader, who represented their nation and its honor. According to this narrative, the police, the attorney general’s office, and the media form a “deep state” controlled by the “old elites” who, having lost their power to rule, are bent on regaining it by undemocratic means in order to control the legal system and the press. Netanyahu, standing for the nation and the populace, is the scapegoat of the elites.

These dark, powerful forces despise the populace, and prefer the nation’s external enemies: “infiltrators” and Palestinians. In their ruthless attempt to seize power, circumventing elections and the will of the people, the “old elites” persecute Netanyahu, the people’s champion, and the rightful, democratically elected leader of the Jewish nation. These “internal enemies” humiliate him (with police investigations, legal accusations and a critical portrayal in the media), thereby humiliating the entire Jewish nation, whom he not only represents but very nearly personifies. In accordance with all this, Netanyahu demands that the people rally around him, showing unequivocal, absolute support.

Netanyahu’s manipulative, populist rhetoric denies the rule of law and equal rights; it is the rhetoric of national honor, demanding complete and utter support for the nation’s leader. Anyone who questions the leader’s narrative deserves to be labeled a traitor and conspirator. In this Netanyahu managed to convince a significant portion of Israeli population.

The Legislation of Basic Law: Israel as a Nation-State

The enactment of Basic Law: Israel as Nation-State was often presented as the jewel in the crown of Netanyahu’s government. The Basic Law, enacted after a decade of failed attempts, has a purely symbolic value and is constituted mainly from earlier laws (for example, those dealing with the Israeli flag, the national anthem, and the state’s capital). Perhaps the single achievement the Basic Law can boast of is the demotion of the Arab language from one of Israel’s two official languages to a language with a mere “special status”.

Nevertheless, the basic law conveys a powerful message: human dignity and liberty no longer enjoy exclusive and superior constitutional status; from now on, national Jewish honor enjoys parallel constitutional status. National honor, hence, has been elevated to the same status as dignity and liberty, as these values have lost their relative superiority. National honor, thus, triumphed on its own terms, i.e., according to its competitive, comparative logic. In this context, the demotion of Arabic reflects the humiliation of the national Other, hence, once again, the comparative elevation of national Jewish honor.

The many supporters of the Law say openly and explicitly that its purpose was to “balance” Basic Law: Human Dignity and Liberty and to curtail its discourse of universal human rights. In their view, since its legislation in 1992, the Basic Law was used by the courts, the Supreme Court in particular, as a trump card to overcome any and every consideration, including national Jewish honor. The new Basic Law, this argument goes, will force the judiciary to acknowledge the supremacy of national honor. Additionally, the new Law manifests the triumph of the legislative and executive branches over the judiciary: the two have finally succeeded in imposing their preference of national Jewish honor on the branch identified with universal human dignity and human rights.

Forum Kohelet is the right wing, ultra conservative research institute that initially drafted the new Basic Law, and consistently pushed for its legislation. Presenting the draft bill, Forum Kohelet stated that it “wishes to put Basic Law: Israel as Nation State on an equal footing with Basic Law: Human Dignity and Liberty. This means that when the Court reviews a request [by a Palestinian-Arab Israeli citizen] to bring a spouse to Israel from an Arab country, the Court will have to balance Israel’s Jewishness against the affront to the dignity and human rights of the individual who wishes to live in Israel with a spouse from an enemy country and deny it”. This reasoning leaves no doubt that that new Law was designed to counter the effect of the earlier Basic Law, and curtail universal human dignity and rights.

Read in context, the new Basic Law is meant to allow the incarceration and deportation of illegal immigrants, including asylum seekers, thereby supposedly preserving the integrity of the Jewish state. It is meant to curb the basic human rights of Israeli Palestinian-Arabs in the name of Israel’s Jewishness. It is meant to curtail the judiciary’s commitment to universal human dignity and human rights, and to demote its status vis-à-vis the legislative and executive branches (both controlled by the right wing since 1977). It goes hand in hand with the discourse, promoted by Netanyahu, of loyalty to nation and the leader who embodies it.

The Basic Law: Israel as Nation-State was not crafted to pronounce arrangements or instate procedures but to elevate the discourse of national Jewish honor and the legislative and executive branches that champion it, while downgrading human dignity and rights, the Basic Law that constitutes them, and the judiciary that enforces them. The Basic Law was crafted to facilitate the expulsion of illegal immigrants, including asylum seekers, and the confiscation of Palestinian land, all in the name of Israel’s Jewishness. It was designed to celebrate Jewish national symbols, such as the Israeli flag and anthem. Even if it never enters a courtroom, the Basic Law has already achieved its main symbolic goal by signaling to all Israelis, Jewish and Other, that human dignity and rights are out, and Jewish national honor prevails.