By David E. Bernstein, professor at the George Mason University School of Law.
August 24, 2006.
A reader, sympathetic to Israel but troubled by its existence as “Jewish state,”
asks: “Can you point me to any case in any example where you would say
‘ has the right to exist as a or state?’ I can
think of numerous claims like this by societies in the past, which are now
Actually, many, many countries have an official religion, including not only
“backward” countries such as Iran and Saudi Arabia that enforce religious law,
but “progressive” liberal bastions such as Norway, Denmark, and Iceland (all
By contrast, Judaism is not the official religion of Israel. Jewish holidays
are government holidays, but that’s like Christmas in the U.S. (Family law is
controlled by religious bodies, but that’s true for Muslims, Christians, et al., as
well as Jews, and is an artifact of Ottoman and British rule. My understanding
is that most Jews in Israel are against the religious monopoly on family law, but
it survives because the religious parties have disproportionate power.
The Arab community, which is far more traditional in its religious
practices than is the Jewish community, almost certainly is more supportive of
this arrangement than the Jews are, so this has really nothing to do with Israel
being a “Jewish state,” as such.)
As for the question of “race,” the problem can’t be “self-determination” of a
group, because the propriety of that principle seems rather well-accepted.
“Jewishness” is not a racial identity, but complaints about Israel being a
“Jewish state” are often put in terms of the Law of Return being “racist.”
The Law of Return is based on ethnic (not racial) heritage and grants
anyone with a Jewish grandparent automatic citizenship (the Israeli Supreme
Court has held that one is not eligible for the Law of Return if one has adopted
the Christian religion, because in the complex area of Jewish identity, Jews
who become Christians have left the Jewish people). Non-Jewish immigrants
with no ethnic Jewish background can become citizens, with some difficulty, as
can, automatically, non-Jewish immigrants closely related to Jews (e.g.,
spouses), many of whom have recently arrived from the former Soviet Union.
Arabs who lived in Israel during the War of Independence (and thus
presumptively accepted the existence of Israel and were not engaged in warfare
against Israel) and their descendants have full citizenship rights, but they are
relieved of one of the major obligations of Israeli citizenship, military or other
national service (I think this is a big mistake, but that is a topic for a separate
One’s liberal, progressive or libertarian hackles can easily be raised at Israel’s
citizenship policies. Why should ethnic background entitle one to citizenship?
On the other hand, Israel’s defenders would argue that given that the Jews
have been the subject of massive state and private violence over the past few
centuries, including one attempted genocide (by Hitler) and another one that
was averted only by Stalin’s timely death, Jews need a homeland/refuge where
they can go with automatic citizenship rights.
Whatever side you take on that debate, the more interesting question is
why the question of basing citizenship (in part) of ethnic descent only calls the
right of Israel to exist into question.
My correspondent was unaware of any other countries that have an overt
ethnic identity, but, judging by immigration laws, there are quite a few, and
with a few exceptions (Armenia and Germany), their discriminatory immigration
policies exist, unlike Israel’s, without any justification resulting from persecution
of that group.
For example, according to Wikipedia: “Japanese citizenship is conferred jus
sanguinis, and monolingual Japanese-speaking minorities often reside in Japan
for generations under permanent residency status without acquiring citizenship
in their country of birth.”
Why does Japan have the right to exist as a Japanese state? Has this
question ever been asked?
An Irish government Web site states: “If you are of the third or subsequent
generation born abroad to an Irish citizen (in other words, one of your
grandparents is an Irish citizen but none of your parents was born in Ireland),
you may be entitled to become an Irish citizen” — if, as I understand it, you
register properly. Does Ireland have the right to exist as an Irish state?
Several other countries recognize a “right of return” similar, but often broader,
than Israel’s (via Wikipedia):
- Armenia. “Individuals of Armenian
origin shall acquire citizenship of the Republic of Armenia through a simplified
- Bulgaria. “Any person . . . whose descent from a Bulgarian
citizen has been established by way of a court ruling shall be a Bulgarian citizen
- Finland. “The Finnish Aliens Act provides for persons who are
of Finnish origin to receive permanent residence. This generally means Karelians
and Ingrian Finns from the former Soviet Union, but United States, Canadian or
Swedish nationals with Finnish ancestry can also apply.”
“German law allows persons of German descent living in Eastern Europe to
return to Germany and acquire German citizenship.” My understanding is that
this German descent may go back many generations. (Note that until recently,
Germany’s citizenship law was less liberal than Israel’s, in that it did not allow
people who were not ethnic Germans, including Turks who had lived in
Germany for generations, to be become citizens.)
- Greece. ” ‘Foreign
persons of Greek origin’ who neither live in Greece nor hold Greek citizenship
nor were necessarily born there, may become Greek citizens by enlisting in
Greece’s military forces.” Wikipedia provides a several other examples, none of
which seem to ever raise the same questions about the legitimacy of the states
involved as the Law of Return does for Israel.
Of course, Israel has the added burden that the Palestinians claiming that they
are the true “owners” of the relevant land, or that at least the Palestinians who
fled in 1948 and their descendants should have their own “right to return”.
But I think that issue exists quite apart from whether Israel’s Law of
Return is objectionable, and indeed must, given that the Palestinian side is
calling for even fourth-generation descendants of residents of what is now
Israel, who never set foot there, to be allowed based on their ancestry to
In short, the perception my correspondent had, which in my experience is
shared by many, that Israel is a uniquely “religious state” is not only wrong; it’s
backwards — Israel has less of an explicit religious identity than many countries
(complicated, I admit, by the fact that one can in an odd way assume a Jewish
ethnic identity by converting religiously).
And Israel is hardly unique in basing immigration and citizenship policy at
least partly on ethnic heritage (the thought that Israel is unique in this regard
seems bound up with the confused notion that it must have something to do
with Jews thinking they are God’s “Chosen People”).
The big difference is that unlike, say, Japan, Israel actually has especially
strong, though I wouldn’t say completely unassailable, reasons for doing so.