Prof. Chaim Gans devotes the last chapter of his recent book, A Just Zionism: On the Morality of the Jewish State, to the question of Jewish hegemony in immigration to Israel and in other domains. In previous chapters his argument had entailed that "the realization of the right to national self-determination does not itself require the existence of a Jewish majority in the Land of Israel." (115). However, he had also argued that the ongoing Israel-Palestinian conflict, and the persecution of the Jews, does justify the aspiration for a Jewish majority, as long as those circumstances exist. Since one should aspire to settling the conflict, and reducing persecution of the Jews, one should also be committed to reducing some aspects of Jewish hegemony in the future.
One way of helping to ensure a Jewish majority is to have immigration laws that make naturalization automatic for Jews and virtually impossible for non-Jews (although, strictly speaking, the Israeli Law of Return is not an immigration law, but rather a law recognizing the "natural right" of every Jew to be a citizen in the Jewish state.)
The Law of Return discriminates on the basis of nationality criteria that are "religio-racist". If you are Jewish or you have one grandparent who is Jewish, you have the right to become a citizen; you have no such right, nor can you ever have one (unless you convert). Now this is patently discriminatory. Can such discrimination be justified?
Well, one can play the "affirmative action" card and argue that since Jews were traditionally discriminated against, and since their efforts toward self-determination were thwarted (according to the Zionist narrative), they are entitled to "affirmative action" in immigration. Just as today's whites and men pay the price for the historical discrimination against women and people of color, so, too non-Jews pay the price in terms of eligibility for Israeli citizenship for the historical discrimination of the Jews. Yet the analogy is flawed. Whatever moral justification "affirmative action" possesses derives from the fact that white, male society benefited historically from discrimination against females and people of color, and that they were the agents of that discrimination. But this is not the case with the Palestinians, who were not responsible for the persecution of the Jews or the thwarting of their national aspirations throughout history. More fundamentally, the purpose of affirmative action is to level the playing field for groups in a society; it is not to foster a certain group's culture at the expense of another.
According to Gans, the liberal way to justify nationality-based preferences in immigration is to claim that a national group has a justifiable interest in preserving and fostering its national culture, especially in the case of a people that had recently been decimated; hence, immigration policies that facilitate members of that nationality to join the majority, though discriminatory, are justifiable. Add to this the assumption that liberal nationalists make – that an individual's identity is often enriched by possessing natural culture and heritage – and one can allow for nationality-based preferences immigration.
Gans argues that it is one thing to talk of nationality as a factor in immigration; it is quite another to make it the only factor. The Law of Return says that if you are a Jew you have a right to citizenship ; if you are a non-Jew you have no right (and, practically speaking, you cannot become a citizen.) No other country in the world, even countries that have ethnonationality-based preferences in immigration, go that far. Gans would substitute the following principles for the current religio-racial principle embodied in the Law of Return: 1) Nationality-based motivations of potential immigrants should bear considerable weight; 2) national groups may admit the number of members into their homelands that is required in order to maintain their self-determination; 3) states have a duty to take in refugees and persecuted members of specific national groups that have a right to self-determination within these specific states. (Gans adds that states have a duty also to grant priority to refugees among the other groups that make up the immigration quota.)
Of course, there are other ways to ensure a Jewish majority in the Jewish State. One could encourage Arab emigration (the Kleiner bill), or reduce Arab family size through incentives and/or sterilization. If one allows for some forms of discrimination, why not others?
A few days ago, Prof. Ruth Gavison, wrote an op-ed in which she defended the exigency amendment of the Citizenship Law that denies Palestinian residents of the occupied territories and their Israeli family members the right to live together in Israel. Most people who defend the amendment appeal to security considerations. But Gavison will have none of those. Even if there were peace between Israel and Palestine; even if there were no terrorism, the mandate for a Jewish majority overrules an Israeli citizen's right to live with his or her spouse. Gavison noted that citizenship is not a right; other countries have denied citizenship to spouses of citizens who belonged to groups outside of the state's ruling culture, such as Holland, which ruled against fundamentalist Muslim spouses. (One could add to this the recent French Supreme Court's decision upholding the denial of citizenship to a Muslim citizen's spouse, on the grounds that her values were not those of the French "community.")
Gans argues that a person's right to marry whomever he wishes, and to live with his or her spouse in the place where that person has lived, is a fundamental human right. The amendment of the Israeli citizenship law violates that right, and violates that right based on race. Yes, a state does have a legitimate concern with fostering a national culture, but that concern cannot override its citizens' basic human rights.
Note the important differences between the French and Israel case. For one thing, the French Supreme Court denied the Muslim spouse citizenship, not residency, whereas Gavison would say to an Israeli Palestinian: you can only live in Israel if a) you marry an Israeli Palestinian, or b) you live apart from your spouse, or c) you leave your home. For another, and this may not be so clear, the French notion of "values of the community" are not ethnonationally based; they are not even religiously based, but are rather liberal values. (Having said this, I, Jerry, am not happy with the French Court's decision, for obvious liberal reasons.)
Indeed, the ethnonational interpretation of "communauté" in France – the sort of interpretation that Gavison would apply to the Jewish community in Israel – is a legacy of the Nazi-supported Vichy regime: the regime that said that a French Jew could not really be a member of the "communauté," since they were not ethnically French. There are many ethnonationalists who believe this; Israel isthe only "liberal democracy" that enshrines such a notion in law.
For my criticisms of Gans I refer my readers to Zionism Without an (ethnonational) Jewish State. Let me conclude with a hypothetical situation. Suppose that a distinguished member of the Jewish Studies faculty at Hebrew University is Christian. Suppose that this person, after a lifetime of service to his students and to his field, after having written important books and articles about Jewish history, after having won the Israel prize for Jewish Studies, and for his highschool textbooks, wishes to become a citizen. According to the present Law of Return, he could not become one, unless by special fiat of the Ministry of Interior. This is somewhat similar to the situation of those privileged Jews who achieved residency or citizenship in Europe before emancipation. Now, let us assume that Israel, as a nation-state of all its citizens, has a special obligation to foster the cultures of its dominant groups, though not necessary an equal obligation (size counts). Couldn't one establish as a factor in priority in immigration "significant contribution to the national culture(s)"?
You see, once liberal nationalism justifies itself through the effects of a flourishing national culture on an individual's identity and well-being, rather than simply being part of an ethnic group -- once ethnicity becomes subordinate to, and justified in terms, of a flourishing national culture -- then one can allow a more flexible (and liberal) notion of group membership than, say, the Nuremberg laws.
I have no problem with Israel as a "Jewish state," provided that "Jewish state is not defined in the ethnonationalist sense of the founders of Israel, but in the sense of a dominant (though not domineering) culture – language, calendar, culture. And, of course, not in an exclusivist sense.
Such as state would give some priority to Jews and to Palestinians in immigration – "some priority," though not blanket. Refugees from Africa, for example, would have higher priority, all things being considered, than Jews from Brooklyn.