Tuesday, August 14, 2007

On the Israeli Law of Return -- An Examination of the Israeli Neocon Arguments in its Favor -- Part I

In 1950 the Israeli Knesset passed the Law of Return, which begins, “Every Jew has the right to come to this country as an oleh.” As Joppke and Roshenhek (2001) point out, the Law of Return is not an immigration law that confers upon Jews the right to be citizens of Israel; rather it recognizes their natural right to be citizens. It is part and parcel of the view of Israel as a state of the Jewish people who are its actual and potential citizens; it is a constitutive law, and not merely a law that favors one ethnic group over the other in immigration policy. The law applies not only to Jews who have suffered from discrimination or are refugees, but also to those who wish to settler in Israel for ideological, i.e., Jewish reasons. It follows from the two central doctrines of political Zionism: that the natural place for Jews is the State of Israel, and that a viable Jewish state can be attained through massive immigration. This second doctrine points to one of the main goals of the Law of Return – to ensure a solid Jewish majority, because of the recognition that Palestine is inhabited and claimed by another people, the Palestinians.

This last point is important. The Law of Return is not only directed towards the Jewish people; it is directed against the Palestinian people, including those that are citizens of Israel. The Law of Return was used to legitimize the massive immigration of Jews from Muslim countries during the early years of the state, and the waves of Russian immigration (of Jews and, sometimes, non-Jews, for reasons that I will go into elsewhere) in later years, in order to give Israeli Jews and their supporters the demographic edge. While Israel does recognize non-Jews as citizens, and in principle, the realms in which non-Jewish citizens are discriminated against by law are limited (though significant), the Law of Return has been the positive expression of the desire to deprive a homeland nationality of its rightful patrimony. One cannot discuss the Law of Return independently of the law against the return of the Palestinians to their homeland – not their ancestral homeland, but their actual homeland; or independently of the glaring failure to provide for the naturalization of non-Jews.

In recent years, under increasing attack from liberals, the Israeli Law of Return has been defended by a succession of Israeli neocons. Thus, Alexander Yakobson and Amnon Rubinstein, in “Democratic Norms, Diasporas, and Israel’s Law of Return" have marshalled a variety of considerations, if not always to defend the law of return from its critics, then at least to remove the stigma of Israel being uniquely discriminatory. Similar arguments have been offered in a recent article for the Chronicle of Higher Education by Gadi Taub, Liberalism, Democracy, and the Jewish State

In the days to come, I will examine two familiar arguments in favor of the Law of Return that are frequently posed by its defenders. The first is the “lots-of-countries-discriminate on-the-basis-of-ethnicity” argument, which is taken as a sign that discriminating in favor of a particular ethnic group is not so bad and maybe even justifiable. The second is the “lots-of-countries-discriminate-but-only-Israel-is-criticized” argument, which allows that there may be something illiberal with the Law of Return, but that since the phenomenon of preferring one ethnic group over other vis-à-vis immigration, is widespread, it is unfair to criticize Israel.

My examination of these arguments will show that they are both without merit. A comparison of the way Israel discriminates in its Law of Return, with the way that other countries who discriminate do so in their immigration policies, will show that the case of Israel is uniquely objectionable. As Joppke and Roshenhek (2001) write: “In its expansiveness and state-defining quality, the Israeli ethnic-priority immigration is unique in the world.” It is thus misleading for Israeli neocons to appeal superficially to other countries such as Germany, Ireland, Finland, Greece, Poland, Hungary, Bulgaria, Slovakia, the Czech Republic, Slovenia, and Croatia as company for Israel. An examination of each of these countries shows that the circumstances and justification of their ethnic-preferential immigrations laws are vastly different from those of the State of Israel – and in some cases their laws are no more justifiable than that of Israel. And in many of their cases, the pressure has been to liberalize their immigration policies.

Before I begin, I would just like to stake out my own position. As a liberal who has no problem with a hybrid nationalism that has civil and ethno-cultural elements, I can imagine some moral justification for a state favoring one group or groups (e.g., homeland ethnic groups) over others in immigration policy –– but the justification had better be a good one and the preference must be narrowly drawn, and balanced. The present policy actively discriminates in favor of Jews and against non-Jews. Moreover, as I will argue in a subsequent post, the Law of Return faces a problem that is, I believe, uniquely Jewish – the difficulty of drawing parameters of who is part of the group. To some extent all groups have issues when they draw up membership criteria. But the Jewish group, because of the religio-ethnic component, is uniquely problematic.


Anonymous said...

What I think is so horrendous about Israel's right of return is the similarity it bears to the racist Nuremberg Laws. In other words, had I lived as a German Jew during the 1930's, I would have been stripped of my rights as a citizen of the state according to racist criteria based on who my mother, father,etc.,was. According to Israel's law of return, I am granted every privilege, including citizenship to the state also based on racist criteria of who my mother, etc.,was, while Palestinians who were expelled, and whose right of return is supported by UN resolutions and international law, are denied the right to become citizens because they do not meet the racist criteria. I do not find immigration laws anywhere as racist as Israel.

Jerry Haber said...

Yes, I agree with you, but it is interesting to understand the context in which the provision you speak of arose. It was not in the original formulation of the law of return in 1950, which limited immigration to Jews, without specifying who they were. Rather it was added in an amendment in 1970 that was both restrictive and expansive: restrictive in that it defined a Jew as one born of a Jewish mother or a convert; expansive in that it extended immigrant rights to non-Jewish descendants of Jews, in addition to non-Jewish spouses, etc. Thus while you are right to see the Nuremberg definition, it was not accepted as a definition of who is a Jew, but rather of who is an acceptable potential immigrant.

One rather bad argument in favor of the extension of privileges was the idea that Israel was intended to be a refuge for anybody who would have suffered as a Jews under the Nazi regime. But that is really silly; why give the Nuremberg laws any status nowadays.

More likely, the extension was simply a way to expand the category of "Jews and family" because of demographic imperatives -- once the secular political parties had to cave into the religious on the question of who is a Jew (but not entirely, since conversion does not have to be according to Jewish law), they felt a need to expand in order to get in more kosher Israelis. The assumption was that that non-Jewish spouse or descendant would in time be Judaized. What was at play was not so much compensatory justice (for whom?) but the demographic imperative.

The demographic imperative explains why non-Jews who are tied in some way to Jews are privileged, whereas native Palestinians are not. The point of the Law of Return in its present form is not so much to ensure a Jewish super majority as to ensure a Palestinian superminority.

Anonymous said...

The PLO Charter, like the Law of Return, presumes to judge the validity of the national identity of the Jewish people and to adjudicate the limited rights of some Jews to remain in the Land of Israel as "Palestinians."

Which do you prefer?

I agree that the Law of Return is problematic, and perhaps more analogous to PALESTINIAN or ALGERIAN projects of law regarding citizenship than German. The fact is that Algeria went through an equally rapid transformation of citizens and citizenship law, and Israel bears some of the post-colonial hallmarks in that some people passed from Mandate citizenship to Israeli, some were born to Israelis abroad, some are citizens by ius solis, and--this is where Israel is sui generis--some by the Law of Return. And to be blunt, like the Algerian declaration that an Algerian citizen is "the child of an Algerian Muslim father", it's a LOCAL concern of Israelis.

Israel is NOT in the EU and the constitutionality of its law, Amnon Rubinstein notwithstanding, is not subject to the European Court of Justice. Algeria has no qualms about a religious test for citizenship and NO ius solis citizenship and denying the former colonizers' citizenship, it's just that the Jews are supposed to be different and for some reasons Kibbutz Galuyot offends you greatly. I think if Israel denied ius solis citizenship to Israeli-Palestinian-Arabs, as Germany does to Turks, the German analogy would hold much more closely. The backers of the Law of Return are straddling too many legal systems and too many concepts of law (for example, EU systems of "repatriation" are based on positive law, not natural law like the Law of Return) but their desire to be part of Europe instead of the Post-Colonial East and their "what-will-the-EU say?" reflex is intense...

Jerry Haber said...

Your comment is very thoughtful, and I really can't begin to do it justice. I am not saying that as a rhetorical tactic to disarm you or charm my readers. I mean it.

My post was not so much a critique of the Law of Return, as a critique of certain liberal arguments in its favor.

Israel could have denied citizenship to the Palestinians that remained within its borders, so one could argue that the situation could have been even less just than it is. But I never buy that argument, no more than I buy the argument that Israel should get points for not carpet-bombing Lebanon, even though they had the military capability.

The truth is that the Jewish state craved international recognition and denying Palestinians citizenship would have deligitimized the Zionists considerably, especially since they had never represented to the world that a Jewish state would deny citizenship to the native population.

And, of course, there is a disanalogy between a settler state denying citizen rights to a homeland population, and the case of Germany and its Turkish residents, even those who have been there for a several generations -- not to mention that Germany does have a naturalization process, although liberals are always trying to liberalize it.

I'll have to look at the comparison with Algeria, but Rubinstein and Yakobson did not appeal to Arab countries, for obvious reasons.

Finally, my own position (subject to change!) is that there can be just cause for not adopting an ethnic-blind policy for immigration.

But thanks for the comment.

Abe Bird said...

I really don't understand what you have against the Israeli law of return. Why can't a nation prioritize its current interests and fixing the fault of history?
Why can't Israel, which is the national land and state of the Jewish people for at least 4000 years, can't expedite the solution to correct the status of the Jewish people and makes it existence certain?

Until the creation of the state of the Jews, the Jewish people were hunted and persecutes by all nations. When Jews wanted to emigrate from one state to the other, most nations put quota on their heads. So why can't the Jews change and fix that attitude by there own initiative to correct the status of the Jews among nations. The fixing act is the law of return. You didn't want the Jews sitting along side with you in your countries so why do you cry while they are getting along and manage to take care in their own place without your?
It is very natural that Israel prefers Jews to come to Israel also for the basic fact that the Jews out of Israel are shrinking, assimilating and vanishing as time goes.

About 80 states has something similar the Israeli law of return, even Ireland and Norway, so why when Israel do so it's a "racist Nuremberg Laws", "it is based or racist criteria" (Judaism is not a race at all but Belief and People hood). The question of the Arab Palestinians has nothing to do with this question. Arabs can't be automatically being citizens of Israel because as we all know they are the enemies of that state. How a state could gives a citizenship to people from the other side of the hot border, to those Arabs who still fight the existence of Israel and declare that they are going to annihilate her? The US have done something more daring in the WWII while put her Japanese citizens in closure and curfew and Israel doesn't. Aside to the law of return Israel let some Arabs to inter the country and have Israeli citizenship for family unification matters and marriage, although Israel is in a state of war with the Palestinian Arabs.

Most of Arab states don't let foreigners to have citizenship and they are residents at the best as long as they "contribute" to the country. The US has it own criteria for citizenship and even criteria to enter the states as a simple tourist. Not all people who want to make a pleasure tourist voyage to the US can get a visa for a day if come from indicated states.

Though, I don't see the reason and the logic behind your criticizing Israel for vain.

Jerry Haber said...

Thanks, Abe, for your comment.

No other democratic country in the world has a law like the law of return, which says that if you are of a certain religion/nationality you have automatic rights to citizenship.

If in order to have a Jewish state it has to be like a third world country in terms of its government, why would any decent person support such a country

Now, you ask, what is wrong with such a law? Presumably you read my post about it and were not convinced. You weren't even convinced by its neocon defenders, who also recognize the problems.

My answer to you is that the law discriminates based on religion and ethnicity.Now, you may ask, why is discrimination on the basis of race or ethnicity bad. Why couldn't the majority of Americans, who are Christian, allow all Christians to be citizens, and make it difficult for the other inhabitants of the US to be citizens? After all, doesn't majority rule?

And, Abe, I really don't have an answer to that. I mean, if you want to sell your house only to a Jew, and not to a black family -- if you want to live in a country that allows only Jews to become citizens and not blacks, or chicanos, or...silly me, people who have living there for generations when your ancestors were tavern keepers in Poland -- why not?

I can't answer that anymore than I could answer Kahane when he wanted separate beaches for Jews and for Arabs, or jail time for Jews marrying Arabs.

And while we are at it...what is so bad if a sovereign state like South Africa, fearful of the preservation of Afrikaaner culture and power, discriminates against native born Blacks South Africans. I mean, for crying out loud, Abe, it's Africa -- if the Blacks don't like it in their South African Bantustans, and if they are anyway terrorists, then can't they live with their Black brothers in all those other countries. There are a so many Black African countries...and only one tiny white one.

And while we are at it ,why shouldn't the Germans have kicked out the Jews from Germany. OK, so they lived there for centuries...but they weren't part of the Aryan folk, were they? Heck, even the Zionists said that! So shouldn't the Germans have the right to do that?

So, Abe, your questions are good ones. I guess some people think like you, and some don't.

I really don't know how to answer your questions.

Well, how about this. You have lived in Palestine for generations. You have nothing against Jews; in fact, you like them. But you also like the country that you were born in, as were your family for generations.

But, Abe, on the month you go to visit your girlfriend in Paris, there is a war, and you and a lot of people like you are barred FOREVER from returning home, despite a UN resolution. Instead, you see your homes given to Polish Jews. Your homeland now belongs to somebody else.

All because of your girlfriend in Paris.

Thomas Mitchell said...

I don't understand your usage of the term neocon for Amnon Rubinstein. Neocon refers to a group of former Democrats, mostly Jews, who joined the Republican Party in the early 1980s in a rejection of the social policies and foreign policy of the Democratic Party under Carter. They were the intellectual component of the Reagan Democrats. So applying the term to an Israeli or any other foreigner is problematic. It might make more sense if Rubinstein like some others had gone from Labor or Mapai or Ahdut Ha'Avoda to the Likud. But he founded Shinui one of the component parties of Meretz. So the appelation makes absolutely no sense other than as a general term of abuse.

Jerry Haber said...


Quick response, because I got into this discussion before.

From wikipedia:

"In the early 1970s, democratic socialist Michael Harrington used the term in its modern meaning. He characterized neoconservatives as former leftists – whom he derided as "socialists for Nixon" – who had moved significantly to the right. These people tended to remain supporters of social democracy, but distinguished themselves by allying with the Nixon administration over foreign policy, especially by their support for the Vietnam War and opposition to the Soviet Union. They still supported the welfare state, but not necessarily in its contemporary form."

"Historically, neoconservatives supported a militant anticommunism,[46] tolerated more social welfare spending than was sometimes acceptable to libertarians and paleoconservatives, and sympathized with a non-traditional foreign policy agenda that was less deferential to traditional conceptions of diplomacy and international law and less inclined to compromise principles, even if that meant unilateral action."

Take the above into the Israeli context and you have the so-called "disappointed leftists" who once labored on behalf of civil liberties and the liberal agenda, but who preached privatization, a rejection of government social agendas. Most important, they are hawkish on security matters and anti international human rights law.

That describes folks like Amnon Rubenstein and Ruth Gavison pretty well.

When Rubenstein helped form Meretz, he did so representing Shinui, which as representing the Tel-Aviv economic elite, had an uneasy relationship with the socialist Mapam. I dont think you could ever consider Rubenstein an Israeli socialist. But on security issues, and on core issues of Israel as a Jewish ethnocracy, he moved after Oslo to the camp of the neocons-liberal-hakws, if you will.

Rubenstein has consistently upheld and defended traditional Zionist ideology, the law of return, the actions of the IDF, and has been critical of the human rights organizations. He was never on the political left economically, but like so many of the Zionist left, his "leftwing" principles were trumed by his Zionist ideology. So now when he speaks out on Palestinian issues,both internally and externally, he is somewhere between Allen Dershowitz and William Kristol.

As for applying neoconservatism to the Israeli context, I am hardly the first (read what I wrote about hte Shalem Institute.) It is true that in the Israeli context the distinction between liberal hawk and neoconservative is more a matter of party affiliation than ideology.

By the way, the party that Rubenstein founded, Shinui, morphed into an ultra-capitalist, arguably racist and fanatically anti-religious party under Tommy Lapid, when Shinui split from Meretz. Thank God it is dead.