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Alon Harel Basic Law: Israel as the Nation-State of the Jewish People: Lessons for Particularistic and Universalistic Constitutional Legitimation

The 'Basic Law: Israel as the Nation-State of the Jewish People,' passed by the Knesset on July 19, 2018. This Article describes the main provisions of the Basic Law; it discusses some of the past history leading to the legislation. It also provides some evaluation as to its effects and speculations concerning its future.  But the main argument made here uses this basic law to make a broader point concerning constitutional legitimation. More specifically I argue that there are two ways to gain constitutional legitimacy: representational and reasons-based. While particularistic values such as the ones entrenched in the basic law gain legitimacy from representation universalistic values need not rest on representation. I conclude by arguing that given the failure to gain consensual support for the basic law, it is an illegitimate attempt to entrench particularistic values in a divisive society. It is only by representing the public that this law can gain constitutional legitimacy.

The Basic Law purports to entrench the identity of the state as a Jewish state. While the older canonical official documents such as the Declaration of Independence and Basic Law: Human Dignity and Freedom speak of Israel as a Jewish state which also cherishes universal values (equality and justice in the case of the Declaration and democracy in the case of Basic Law: Human Dignity and Freedom), the new Basic Law omits any reference to such universal values.  The key phrase that has been used in the last three decades in official documents was: 'Israel as a Jewish and a democratic state.' The omission of this phrase or any reference to democracy or equality in this Basic Law was a deliberate choice on the part of the Knesset. For reasons that will be mentioned later all proposals to add references to universal liberal values were rejected by the Knesset. The novelty of the Basic Law is not therefore in the willingness to entrench the status of Israel as a Jewish state but in the deliberate omission of any reference to universal values.

Section 1 describes the provisions of the law and the debates surrounding some of them. Section 2 points out the deeper roots of the debate and its effects on the Israeli polity. I will also argue that the initiative to pass this law can be regarded as indicating a shift in the status and perception of the Court in Israel. Instead of being regarded as an ally of liberalism and liberal forces in Israel, it has now been transformed so radically that it may be regarded as an ally of nationalism and particularism. In section 3 I differentiate between two means of legitimation: representative legitimation and reason-based legitimation. I shall argue that the basic law entrenches particularistic values and consequently its legitimacy must rest on a consensual representation. Given that no consensus has been achieved I argue that while the basic law is legally valid, it represents an illegitimate attempt on the part of a sectarian group, namely nationalist and conservative forces to entrench their own sectarian values.

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