Nation-State Law Research Articles

Jewish Nation State Law and Transformation of the Elite in Israel

In this paper I will discuss that The Basic Law: Israel as the Nation State of the Jewish People which is enacted in 2018, is taken a form around that is seen at elite and institutional level of historical institutional transformations in Israel. Legal arrangements are main builder of state and society relation sets around the world. Political elites as the decision makers of political process in Israel whose preferences and orientations stand out as the main factor in determining the content of legislative activities. Ashkenazi middle class intellectuals, political activists and professional politicians who the founding political elites in Israel came to fore as the main agents in the founding process of Israel. Demographic change, diversification of geopolitical preferences, differentiation of the components of the economic structure affected on social dynamics and transformed the composition of the elites. It is observed that the preferences of the decision making actors who have shifted from the Ashkenazi elites to Mizrahi elites that have started to be effective in Israel. Ideological differences, intergenerational challenges and personal conflicts between political professionals of Ashkenazi elites that have accelerated the rise of the Mizrahi elites in Israel.

A Comparative Constitutional Perspective on Israel's Nation-State Law

A Comparative Constitutional Perspective on Israel's Nation-State Law

במקום חוק הלאום: חוק-יסוד: מדינת ישראל - מדינה יהודית ודמוקרטית <br>Replacing the Nation-State Law with Basic Law: The State of Israel - a Jewish and Democratic State

במקום חוק הלאום: חוק-יסוד: מדינת ישראל - מדינה יהודית ודמוקרטית <br>Replacing the Nation-State Law with Basic Law: The State of Israel - a Jewish and Democratic State

The Nation-State Law and the Weakening of Israeli Democracy

The article argues that the significance of the Nation-State Law is not merely symbolic but substantive as well, and may exert a long-term influence on Arab-Jewish relations in Israel and on the future of the West Bank. The authors provide a broad historical and political perspective on the Law, tracing what they view as Israel's transition from semi-liberal democracy to illiberal, majoritarian democracy that resembles a widespread global trend. The authors conclude that the 2018 Law reinforces majoritarian elements within the polity while it weakens Israel's liberal-democratic claims. The article warns against the implications of the Law in both domestic and foreign policy.

Jewish Nation-State, Not This Law

I fully support the idea of Israel as a nation-state of the Jewish people and strongly oppose the Nation-State Law. The Jewish state is justified based on the principle of the right of peoples to national self-determination, and the law is wrong because it fails to respect the principle of civic equality. There are numerous flaws in it, but they are all subordinate to, and symbolized by, the refusal to say that the Jewish state is committed to equal rights for all its citizens. Contrary to what is often claimed, the law does not legally subordinate democracy to the Jewish state or legalize discrimination between citizens. But a constitution—in Israel, the series of Basic Laws—is not just a legal document. It is a nation's credo. Refusing to enshrine civic equality in the law that enshrines the Jewish character of the state is a grave matter—without parallel in any democratic constitution.

The Constitutionality of Israel’s Nation State Law Considered in Light of the Principles Underlying the Canadian Charter of Rights and Freedoms

Entrenched within Israeli Legislation is a constitutional provision known as the Nation State Law (“the Law”), which prescribes additional Jewish characteristics to the unwritten constitution of the State of Israel, albeit not in the traditional form that a constitution generally takes. The Nation State Law purports to be built on the constitutional principles by which Israel has operated since its inception, principles that are not ingrained in a constitutional document, but that come from various sources of legislation, judicial rulings, and Knesset discussions. This paper will examine the unwritten Israeli constitution, drawing comparisons to the Canadian Constitution and Charter of Rights and Freedoms. In doing so, this paper seeks to understand whether the Nation State Law is constitutionally valid not only on the basis of Israeli constitutional law, but, also, in light of Canadian and universal constitutional principles. As well, it will emphasize the importance of the historical process by which Israel became a Jewish state, founded to protect Jews across the world from consistent persecution and widespread anti-Semitism.

THE ROLE OF NATIONAL ACTION PLANS IN IMPLEMENTATION OF INTERNATIONAL STANDARDS IN BUSINESS AND HUMAN RIGHTS

"Guiding Principles on Business and Human Rights” are the first universally recognized global international standard in the field of human rights and business. In accordance with them, transnational corporations and other enterprises are obliged to comply with the national laws of states and respect internationally recognized human rights while carrying out their business activities. On 16 June 2011, the Human Rights Council unanimously endorsed the Guidelines in its resolution 17/4, “Human Rights and Transnational Corporations and Other Enterprises,” setting a universal standard for protecting human rights from the adverse effects of transnational corporations and other enterprises. However, in accordance with the doctrine of international law, corporations do not have an international legal personality and their obligations to respect human rights are only voluntary in nature, and therefore, the main obligation to ensure the protection of human rights lies with states. One of the ways to implement international standards in the field of business and human rights in practice is the development by States of National Action Plans. This paper is devoted, firstly, to a summary of the main ideas of the “Guiding Principles on Business and Human Rights” as an international legal standard in the field of human rights. Secondly, to consider the role of National Action Plans in the implementation of the Guidelines in EU countries. Thirdly, a review of existing practices for the implementation of these principles by EU states using National Action Plans

Israel's New Constitutional Imagination: The Nation State Law and Beyond

The following analysis of the Israeli Nation State law reflects on the emerging new constitutional imagination in Israel. It argues that this Zionist imagination mirrors the deep sociological and political changes taking place in Israeli society. The hegemonic political elites have transformed the Israeli constitutional identity from one based on constructive legal ambiguity into one rooted in exclusive ethno-theological values. The latter stands in direct negation of the Zionist constitutional formula promoted by the founding fathers of the State as embodied in the 1948 Declaration of Independence. This rhetoric of the Declaration of Independence incorporated liberal values, in spite of the fact that the Labour Zionist political elite of the time was not fully committed to the practical meanings of these values. The current hegemonic elite in Israel views such a veiling strategy as not only unnecessary, but also as hazardous.

From Jerusalem to the Rest of the West Bank: Israel's Strategies of Annexation

AbstractSince 1967, despite international legal restrictions, Israel has sought to annex Eastern Jerusalem. Fifty-one years later, it publicly declared in its Nation State Law: “Jerusalem, complete and united, is the capital of Israel.” In the West Bank, Israel initiated on the ground changes that furthered annexation without formally declaring any part of it as annexed. For decades, Al-Haq has documented the gradual encroachment of occupation by successive Israeli administrations. And yet the Palestinian leadership failed to successfully utilize the law to support its case. Nor could the 190 states, parties to the Fourth Geneva Convention, be convinced to enforce the provision in the Convention which bids the High Contracting Parties to “ensure respect for the present convention in all circumstances.” During the Oslo negotiations, Israel succeeded in leaving Jerusalem and the Jewish settlements outside of the jurisdiction of the Palestinian Authority. Given these patterns across nearly a half-century of history, it seems likely that Israel will declare the full annexation of the West Bank in part or in its entirety precisely because it has succeeded in accomplishing this in the case of Jerusalem.

Youth Encounter Programs in Israel: Pedagogy, Identity, & Social Change by Karen Ross

Reviewed by: Youth Encounter Programs in Israel: Pedagogy, Identity, & Social Change by Karen Ross Sheera Talpaz Karen Ross. Youth Encounter Programs in Israel: Pedagogy, Identity, & Social Change. Syracuse, NY: Syracuse University Press, 2017. 220 pp. doi:10.1017/S0364009419000394 Karen Ross's Youth Encounter Programs in Israel: Pedagogy, Identity, & Social Change is a timely contribution to the fields of conflict and Israel/Palestine studies. The book arrives at a moment in which the rise of populist nationalism—signaled in Israel, for example, by the recent passage of the Nation-State Law—simultaneously threatens yet necessitates peacebuilding efforts. Against this backdrop, Ross's work helpfully analyzes the efficacy of youth encounter programs, or educational initiatives, that, in this case, bring young Israeli Jews and Palestinians into sustained contact with one another for the sake of peacebuilding. Do such programs, the Economist has asked, "actually change things for the good?" In response, Ross poses a question of her own: "What, in fact, does it mean for such projects to 'change [something] for the good'?" (3). To answer these questions, the author engages in a thorough comparative analysis of two Israeli-Palestinian encounter organizations, Peace Child Israel and Sadaka Reut, assessing the perceived impacts of their programs on the lives and beliefs of past participants. Peace Child Israel, established in 1987, brought young Israeli Jews and Palestinians together through a shared involvement in theater. Although the program underwent major changes, including a shift toward increased professionalization after the death of its founder, it continued to maintain a similar pedagogical approach that emphasized interpersonal connection before ceasing operations in 2011. Sadaka Reut, established in 1983 and still in operation today, is a grassroots organization that, through a variety of programs, educates and empowers young Israeli Jews and Palestinians to involve themselves in social and political activism. Although Sadaka Reut originally focused on interpersonal programs, it soon changed course by directly tackling sociopolitical issues, particularly those related to power dynamics and systemic inequities within Israel/Palestine (chapter 3). Early in the text, Ross charts the dynamic histories of these groups, offering the reader a sense of how they transformed over time and what may have motivated their organizational and methodological choices. I was curious about these groups' internal methods of data collection and impact assessment, and whether their own data played a part in the changes they undertook—for example, in Sadaka Reut's shift from an interpersonal focus to a more [End Page 260] straightforwardly political one. Looking at perceived impact through a comparative lens, Ross concludes that Sadaka Reut's direct approach proved more effective than Peace Child Israel's in influencing participants' "worldview horizons" or "underlying, deep-seated beliefs" about the role of the individual in the world and in spurring their engagement in other forms of activism. What seems unclear, though potentially relevant to Ross's findings, is why Sadaka Reut changed its course. The core chapters of this text are informed by Ross's extensive research and field work starting in 2009–2010, including her observation of group activities, meetings, and retreats; perusal of various written materials (e.g., correspondence between staff and board members, pedagogical manuals and curriculum, etc.); and interviews with over seventy program alumni, in addition to two dozen or so staff members. The comprehensive scope of this study allows for an exploration of pedagogical methods, organizational structures, and participant experiences—intertwining variables that influence outcomes. Sociopolitical and familial circumstances also have an impact, as Ross reminds her readers, which understandably complicates the design of such a study. Indeed, outside circumstances may have a greater influence on program participants in areas of conflict. Perhaps this accounts for the relative dearth of scholarship on intergroup encounter programs in conflict settings, which Ross mentions in framing her study's contribution to existing scholarship. One of Ross's primary interventions is a critique of traditional experimental and "quasi-experimental" impact assessment strategies, which attempt to isolate variables of interest—those pre-established by the researcher, rather than by the study participants or in a collaborative effort—while controlling for others. Her study eschews some of those conventions in favor of a more democratized, flexible approach that privileges the participants' perspectives...

The Jewish Nation-State Law

This analysis explores the origins and constitutional implications of Basic Law: Israel – The Nation State of the Jewish People (hereafter the Jewish Nation-State Law), enacted by the Israeli Knesset in July 2018. It examines the antecedents of the legislation in Israeli jurisprudence and argues that most of the law's provisions are the product of precedents established by Israel's Supreme Court, specifically the court's rulings delivered post-Oslo. The authors contend that the “two states for two peoples” vision of so-called liberal Zionists paved the way for Israel's right-wing politicians to introduce this law. Their analysis holds 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.

İsrail'in Ulus-Devlet Yasası

Çalışmada, devletin karakterini Yahudi halkının ulus-devleti olarak belirleyen İsrail'in ulus-devlet yasası incelenmektedir. İsrail Parlamentosu'nun 19 Temmuz 2018'de kabul ettiği yasa hem takdir hem eleştiri ile karşılanmıştır. Kamuoyu yoklamalarına göre, İsrail toplumunun %60'ı yasayı desteklemektedir. İsrailli Araplar, yasanın ırkçı olduğunu ve azınlıklara karşı ayrımcılık içerdiğini ileri sürmektedirler. Muhalefet partisi liderleri yasanın İsrail Bağımsızlık Bildirgesi ile bağdaşmadığını savunmaktadırlar. Bildirgede İsrail topraklarında Yahudi Devletinin yeniden kurulmasının Yahudi halkının doğal hakkı olduğu ve İsrail Devletinin ülkesinde yaşayan herkese, din, ırk veya cinsiyet ayırt etmeksizin, sosyal ve siyasal haklarda eşitlik sağlayacağı ve İsrail Devletinin ülkesinde yaşayan herkesin din, vicdan, dil, eğitim ve kültür özgürlüğünü güvence altına alacağı yazılıdır. İsrail muhalefet partisi liderleri, Bildirge ile İsrail'in hem Yahudi hem demokratik bir devlet olarak kurgulandığını savunmakta ve İsrail hükümetini devletin Yahudi ve demokratik karakterleri arasındaki dengeyi bozmakla suçlamaktadırlar. Hükümet, yasanın muhaliflerinin Anti-Siyonist olduklarını savunmaktadır. İsrail ulus-devlet yasasının anlaşılmasının, Siyonizm ve demokrasi arasındaki ilişkiye dair tartışmaları yorumlamak bakımından önemli olduğu düşünülmektedir. Çalışma üç bölümden oluşmaktadır. Birinci bölümde yasanın içeriği açıklanmakta, ikinci bölümde yasanın Bildirge ile bağdaşıp bağdaşmadığı ele alınmakta ve üçüncü bölümde yasaya dair takdir ve eleştiriler değerlendirilmektedir. Çalışmanın İsrail siyasal hayatını anlamaya katkı sunması amaçlanmaktadır.

Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity?

The enactment of Basic Law: Israel as the Nation State of the Jewish People (“the Law”) on July 19th, 2018, triggered an intense public debate in Israel. Opponents of the Law refer to it as racist, shameful and disgraceful, and demanded its immediate repeal. Eight petitions against the Law have been filed, as of October 1, 2018, to the High Court of Justice. Proponents of the Law argue that it is a legitimate legal entrenchment of the right of the Jewish people to self-determination, which is, they argue, the justification for the establishment of the state of Israel. They argue that the Law does not violate the principle of equality, which in entrenched, albeit inexplicitly, in Basic Law: Human Dignity and Liberty. They further argue that it is necessary in order to balance Supreme Court’s alleged preference of “universal values” over national ones. The questions raised by the Law can be divided into three groups. The first group of questions regards the possible effects the Law may have on individual rights, and, in particular, on the right to equality. The second group of questions regards the implications of the Law for possible future recognition of collective rights for non-Jewish minorities, or for other forms of state recognition of minority groups. The third group of questions regard the manner in which the Law shapes the national identity of Israel, constructs the terms and content of membership in the political community in Israel, and affects social solidarity. The paper will analyse the three group of questions, examining them against the backdrop of current political discourse in Israel. The two most important issues, in this regard, are the public debate regarding the concept of “a state of all its citizens”, understood by many Israelis as incompatible with the definition of Israel as a Jewish state, and the ongoing political struggle between the Knesset and the Supreme Court regarding the limits of judicial review. The paper argues that the significance of the Law, and the intensity of the public debate it stirred, can only be understood within this context. The paper argues that in addition to the serious equality concerns the Law raises, the Law undermines the ability to create inclusive, all-encompassing social solidarity in Israel. While violations of equality could potentially be mitigated by a willing Supreme Court, the negative effect the Law may have on social solidarity in Israel may be difficult to alleviate.

Enshrining Discrimination: Israel's Nation-State Law

In July 2018, the Israeli Knesset passed Basic Law: Israel – The Nation-State of the Jewish People (Nation-State Law). This article highlights three of the law's central premises: the entrenched supremacy of Jewish settlers; the erasure of indigenous Palestinians; and, with reference to borders, the effective annexation of those parts of historic Palestine that were occupied in 1967. The authors reflect on the passage of the law within a broader history of settler colonialism and in the current global context of growing authoritarianism and overt institutionalized racism. The passage of such a colonial piece of constitutional legislation in 2018 is a testament to the continued resistance of Palestinians and the growing movement for Palestinian rights. The authors argue that the alternative to the exclusionary Nation-State Law, a rights-based, people-centered framework, is a promising avenue to not only secure Palestinian rights, but also advance a universal struggle for equality and historical justice.

Global law: confronting the transnational criminal

Philosophers of liberalism from Rousseau to Rawls have placed the good citizen at the centre of the liberal political arrangements they advocate. These good citizens bear their obligations and exercise their rights within the law of nation states. They enjoy status in their communities, communities to which they owe allegiance. Conceptions of the nature of this citizenship vary widely. Some have a trace of the totalitarian. Rousseau famously argued that humans living in a society must reconcile their own sense of subjective freedom with the objective need to act correctly (Rousseau, 1762, chs 5-8). In a state of nature they live only for themselves; as citizens they cease to be individual units and become parts of the new unit, the community.

Is it Time for Non-Euro-American Legal History?

Legal history has been predominantly Euro-American for far too long. A quick glance at the programs of the annual meetings of the American Society for Legal History, British Legal History Conference, and the Biennial Conference of the European Society for Comparative Legal History confirms this. For example, the number of ASLH panels devoted to US constitutional law—even to First Amendment alone—is generally greater than the number of panels on the legal history of non-common law and non-civil law traditions. Legal history is more tilted towards Euro-America than most other sub-disciplines of history. And one can understand why. Civil law jurists traditionally looked back to old texts that require interpretation and provide the scholarly inspiration for the formation of new codes and national laws. Common law lawyers looked to the past for relevant precedents, ancient constitutions, and the effect of ancient forms of action on current law. Beginning in the middle of the 20th century, historically-oriented legal historians revolted against lawyerly legal history. But their historically motivated challenge was restricted to the same spatial grounds. They had to stick to Euro-American legal history in order to have adversaries, ie the previous generation's lawyerly legal historians, and to be relevant to legal discourse. And, moreover, legal discourse tended to be parochial and localized in the era of the nation-state and positivist national law. One field that reaches beyond Europe is the legal transplants literature. The civil law version traces the transplantation of Roman law throughout Europe and in the European empires, as well as the imposition of the modern French and German codes in their colonies and their voluntary adoption by independent states. The common law version of legal transplants literature investigates the transport of the common law by English settlers and governors to North America, India, Australia, and Africa. Post-colonial …

Internet co-regulation and constitutionalism: Towards European judicial review

This article analyzes co-regulation, by defining and exploring its recent institutional history in the Internet environment. It then assesses the legal definitions and taxonomies of co-regulation before constructing a 12-point scale of self- and co-regulation. The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. Co-regulation has enriched conceptions of ‘soft law’ or ‘governance’ in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy more than self-regulation, which is defined by the absence of formal roles for the nation-state or European law. Co-regulation is often identified with the rise of the ‘new governance’ in the 1990s. Recent European case law has seen a long overdue emphasis placed on human rights in judicial review of co-regulatory arrangements. Without regulation responsive to both the market and the need for constitutional protection of fundamental rights, Internet regulatory measures cannot be self-sustaining.

Internet Co-Regulation and Constitutionalism: Towards a More Nuanced View

The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. The varying interests of actors result in different incentives to cooperate or attempt unilateral actions at the various points of the value chain. Without regulation responsive to both the market and the need for constitutional protection of freedom of expression and protection of minors at national levels, Internet co- and self-regulatory measures cannot be sufficiently responsive to economic and cultural environments to be self-sustaining. It has enriched conceptions of ‘soft law’ or ‘governance’ in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy such that it cannot be ascribed to self-regulation, in the absence of the nation-state or European law. It is often identified with the rise of the ‘new governance’ in the late 1990s in environmental and financial regulation, yet its growth can also be traced to the birth of Information Society policy in the mid-1990s. Co-regulation constitutes multiple stakeholders, and this inclusiveness results in greater legitimacy claims. The state, and stakeholder groups including consumers, are stated to explicitly form part of the institutional setting for regulation. However, direct government involvement including sanctioning powers may result in the gains of reflexive regulation – speed of response, dynamism, international cooperation between ISPs and others – being lost. It is clearly a finely balanced concept. The growing gulf between states’ preference for regulatory and self-regulatory solutions, and citizens’ preferences for greater control if not ownership of vital regulated industries, has led to a crisis of legitimacy. This article analyzes co-regulation, by defining and exploring its recent institutional history together with that of Internet self-regulation. It then assesses the legal definitions and taxonomies of co-regulation before constructing a twelve-point scale of self- and co-regulation. It explores the possibility for judicial review of co-regulatory arrangements, recent case law that concerns human rights and Internet co-regulation, and regulatory pronouncements.

Islamic Law (Shari'a) and the Jurisdiction of the International Criminal Court

AbstractAlthough the International Criminal Court (ICC) has been mostly hailed as a victory, Islamic states still regard its application of international criminal-law norms with scepticism. The Rome Statute instructs the Court to apply general principles of law derived from national laws of legal systems of the world including the national laws of states that would normally exercise jurisdiction over the crime but, so far, the Court has relied purely upon Western inspiration and may fail to acquire the legitimacy to establish a universal system. Among the legal systems that are unjustifiably neglected by the ICC is the Islamic legal tradition. This paper argues that the principles of Islamic law are, for the most part, consistent with internationally recognized norms and standards, particularly those enshrined in the Rome Statute, and are on an equal footing with the common and Continental legal systems that are currently employed by the Court in the search for general principles of law.

The European Private Company (SPE): Uniformity, Flexibility, Competition and the Persistence of National Laws

In 2008 the European Commission put forward proposals for a European Private Company (SPE), following up on the adoption of the European Public Company legislation of 2001. Although speedy adoption of the SPE proposals was initially hoped for, subsequent negotiations among the member states have stalled, despite at least two revised drafts of the proposals having been produced by the Presidency of the European Council. This article seeks to identify the challenges posed to the national company laws of the member states by the Commission’s proposals for a ‘simple and flexible’ Community form of incorporation. It seeks to argue that the discussions among the member states have revolved mainly around the question of the appropriate role for mandatory rules in modern company law. Member states have been reluctant to see the SPE freed from mandatory rules to which their national companies are subject, because of the competition to their national laws which the SPE would generate. On the other hand, member states with few mandatory rules in their domestic law have been reluctant to see the SPE burdened with mandatory rules which do not apply to domestic companies, because otherwise their businesses will be deterred from taking up the new European form and obtaining its advantages. The article predicts that, of the possible legislative solutions to this conflict, referring more of the rules applicable to the SPE to the national law of the state in which the SPE is registered is likely to be the dominant one, even though this will undermine both the uniformity and flexibility goals of the proposed legislation. It also considers how effective the ‘national law’ strategy is likely to be in the light of the Treaty provisions on freedom of establishment.