- Look Back in Compassion
More than law in a general, abstract sense, it is the fraught, almost hostile relationship between state laws on the one hand and international law and international human-rights organizations on the other that occupies a distinctive place in contemporary debates concerning Israel's character. Is Israel offering us a one-off case? I doubt it. The tendency of nationalist leaders to oppose vehemently any international arrangement that might curtail national sovereignty is as old as the history of the modern nation-state and is certainly not unique to the trembling Jewish and/or democratic republic. Quite on the contrary: despite its contemporary image as an inward-looking pariah state that dismissively ignores what others (i.e., the goyim) have to say about it, Israel today seems to fit quite elegantly into a broader, global pattern marked by the rise of right-wing populist politics and the general decline of liberal and social-democratic values. Next to unprecedentedly high levels of existential insecurity and xenophobia, the clear symptoms of this global influenza include a heated cultural backlash or "nausea" rhetoric—an audacious, reprehensible attack on so-called progressive virtues captured in slogans about political correctness, cosmopolitanism, and multiculturalism—coupled with an equally disgraceful attempt to undermine democratic values that seems to have been taken for granted by the so-called old elites. As one of the New York Review of Books' bigwigs declared recently, "We are in the full gale of a conservative counterrevolution that could last for some time and reshape modernity in a reactionary direction."1
Contemporary Israel follows this pattern. It would be a crude simplification, of course, to argue that there are no fundamental differences that set Viktor Orbán's Hungary apart from the rising antialien sentiments that brought the Brexiters to power in Britain or between both of these and Israel's hypernationalist hawks. But it would be equally silly to hold on to the rose-tinted neoliberal vision that was offered to us by [End Page 179] Francis Fukuyama and his acolytes, who predicted the "end of history" after the fall of East European communism. Unlike liberal democracy, so far history shows no signs of ending anytime soon.
And yet, each unhappy state is unhappy in its own way. Structurally, part of what does make the Israeli situation different is the fact that Israel lacks a constitution. Thus, to navigate through murky waters, Israel's Supreme Court judges must rely on a limited list of Basic Laws—the local equivalent of a law with constitutional authority—or on a creative interpretation of some of the clauses in the yellowed seventy-year-old scroll on which the Israeli Declaration of Independence was written and signed, despite the fact that the document is neither a law nor an ordinary legal document in the proper sense. Moreover, the basic task of settling "the unfinished constitutional business of defining Israel's legal character," as Simon Rabinovitch put it recently, is not left to lawyers but to politicians.2 Indeed, adding a new Basic Law to the list is arguably one of the highest achievements any coalition government can aspire to. Thus, passing the Basic Law that defined Jerusalem as Israel's capital in July 1980 can perhaps be seen as one of Menachem Begin's biggest political achievements—even though, and maybe precisely because, it avoided using words such as annexation and sovereignty and did not specify Jerusalem's exact municipal borders—while passing the Basic Law on Human Dignity and Liberty (March 1992) is remembered as one of the last remaining legacies of Yitzhak Rabin's government (although technically the legislation process started earlier, under Yitzhak Shamir's prime-ministership).
Historically, part of what makes the struggle between human rights and national sovereignty especially interesting in our case is the fact that Jews, and often Jews who have conceived of their identity in ethnonationalist terms and who have openly defined themselves as Zionists, have been found in both camps. I am writing these lines in summer 2018, shortly after the Knesset adopted a nationality law that defines Israel as the nation-state of the Jewish people, mentions no...