Wednesday, July 16, 2008

Gans vs. Gavison: Nationality-Based Preference, Rather than Ethnic Rights, in Immigration to Israel

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 Рthe sort of interpretation that Gavison would apply to the Jewish community in Israel Рis 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.



Aliza said...

are you sure about that regarding "no other country" has ethno-nationality citizenship criterions that go that far? I would imagine most postcolonial countries do. Not to get into "Arab countries do it too", because that is a irrelevant if we are discussing Palestinian human rights, but doesn't Algeria define citizenship as being descended from an Algerian Muslim male? The religious requirement has similar reason, in that they define their nationality in association with religion. The exclusivity and the difficulty of obtaining citizenship if not a member of those two groups is also similar: A- missionaries and B- "colonizers", which I do not put in quotes to disparage but to emphasize that colonization didn't and doesn't always occur from individuals intending to be part of such a movement-- Europeans who went to live in Africa for a variety of reasons paved the way for their govt's political colonization of the country, even if they came with different intent.
Aren't most newly independent countries with recent (and fragile) nationalist bases afraid of demographic threat? I think so.

Doesn't the "no other country" thing shows Euro-centric blinders? This is NOT to discourage discussion of ways that Zionism might/does inherently lead to "illiberal" implications for Palestinians, though why don't we just say "inhumane" or unjust because "liberal" values are not universal. That obsession with "liberal" values seems to me quite similar to the Eurocentric blinders-- that the problem with Jewish nationalism or Israeli nationalism is that it doesn't fit as neatly into the citizenship models of European countries with European experience.

I wish everyone (I mean, human beings, in general) would take a hint from the Iranian revolution, if only from the lesson that European models of govt organization and polity identity aren't universal. They might have many good aspects and many bad aspects, other countries might want to emulate them in some or many respects, but the kneejerk manner in which European (and North American, the extension Euro colonies) is raised as the single model of just or desirable human political organization, is just ignorant. Maybe Gans comes to that perspective from investigation and choice, which is fine-- but I think you present this liberal stuff as universal, which to me seems like a bit of colonized mind.

(No offense, of course-- yasher koah etc, I love your blog and will take up the book rec.)

Jerry Haber said...


two quick comments:

As you quite correctly perceived, both Gans and I were assuming liberal democracy. Whether a liberal democracy is the best way to go for all states -- indeed, whether states are the best way to go for people -- we didn't get into that. Bu yes, we would have to get into that.

So, when talking about other states ("no other country") I meant, "no other country that would like to see itself as a liberal democracy."

By the way, there is a tremendous influence of liberal democracy even in countries which are no liberal democracies (the discourse of rights, of independent judiciary, etc.) Even in countries governed my Shari'a, there is often an attempt ot use the language of rights, for example, in talking about the claims of peoples and qroups, and of interpreting shari'a in terms of liberal discourse. Liberals may scoff, and with reason, but that type of talk is ubiquitous.

Human values -- certainly human rights -- are also not universal. Isn't talk of human rights "Eurocentric?" In traditional Judaism, for example, there is no concept of human rights; that notion is a product of the Western Enlightenment, although one can, should one want to, find some analogies.

Still, your point is well-taken. I certainly did not wish to imply that I wish to impose the values of liberal nationalism on all cultures.

Gans gives as an example of a political entity that is open to all members of a particular group and closed to other members are reservations for native minorities in Canada. But Israel's case is not the same -- unlike the native tribes, it is not relatively small, and can preserve its culture,economy, and politics, without such drastically restrictive methods.

Anonymous said...

Forgive me but I see no reason why Israel should be forced to redefine what it sees as its core National Community. Medinat Yisrael, is as we say in its Prayer for its Welfare, the first fruit of our Redemption. Therefore, it is incumbent upon us to preserve the character of the state to insure that those who are to be redeemed shall have a state to enjoy that Geulah in ! In that context, a Syrian Jew from Flatbush is worth more to the National Community than the latest refugee from Darfur.

Shabbat Shalom and may this be the last time Klal Yisrael must confront the mourning period of the Three Weeks!

Anonymous said...

You said:
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.


Now that you came here from Baltimore, using the Law of Return, it sounds like you think it should be changed to bring in the downtrodden and oppressed of the world who are more deserving of living in Israel than those Jews from Brooklyn who weren't smart enough to come before you.
Hundreds of thousands died in Darfur, as I understand it. Are you going to open the gates for the Darfurians? Even the US hasn't done that. Your position reminds me of a story I heard about Martin Buber (I can't recall where I read it, so I can't vouch for its accuracy but it is piquant)....the day after he arrived in Eretz Israel, he announced that the Jews should halt further immigration in order to show their "good will" to the Arabs. Liberalism by one person paid for by another.

The Jews who came to Israel and sweated and suffered to build a Jewish state, didn't do this in order to build a "liberal, multicultural, pluralistic, materialist state" which you and your fellow progressives view as "holy", they came to build a JEWISH state and I don't feel any need, as you seem to, to apologize for it. Let the EU first serve as an example to the whole world and allow free immigration to anyone who wants to go there. We'll see how long their vaunted "mulitculturalism" lasts.

Jerry Haber said...

Hi, David,

First, Shabbat Shalom, and I agree that I would like this to be the last time we enter the three weeks. But frankly, you and I don't agree about so many basic things.

I probably would prefer observing the three weeks than having a state of redemption according to your conception of redemption. And I say that as a frum Jew.

But let's not argue about that and try to get a consensus on some things -- such as in a messianic period there will be world peace, and that people will be devoted to worshipping and knowing God, as
the Rambam says in hilkhot melakhim. Unfortunately, I dont see we are anywhere near that. I dont see us in athalta di-geula at all. Not when as a result of the state there is so much suffering and misery and injustice. Not, perhaps, more than usual, but certainly not less.

Jerry Haber said...

Bar Kokhba,

There is no truth to the Buber story.

Have a nice day and shabbat shalom


Anonymous said...

There is a trend in Judaism which runs counter the way in which the Mishne modified the Torah Laws and the Talmud modified the Mishne and that is Misiniatic Judaism. According to Misiaiatic Judaism everything is M'Sinai even things that were done in heady victory or abject despair (or being Jewish both) . There is no concept of "It seemed a good idea at the time".
Given that with international refugee standards somewhat higher than they were in the 1930's especially if you are white, and where most Diaspora Jews live, The Law of The Return is an encumbering historical curiosity.
Further by putting no educational /cultural constraints on citizenship in place such as a knowledge of language, official history and law, makes the maintenance of Israeli values problematic as immigrants need not educate themselves to their new culture. This is without even considering the effects on those who are not "ethno-racially" Jews.
The law of the return and the status quo agreement, among others are in the "it seemed like a good idea at the time" category and not sancta Misinai.

Ben Bayit said...

You keep on referring to the Law of Return, when you know full well that your professor example can apply for citizenship under the Citizenship Law.

I for example did not come to Israel under the Law of Return, even though I am Jewish. I came under the citizenship law as I was considered a citizen of Israel by birth - even though I was born abroad.