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Two concepts of group rights
for the Palestinian-Arab
minority under Israel’s
constitutional definition as a
“Jewish and democratic” state
Michael M. Karayanni*
The article identifies two distinct concepts of group rights in respect of the PalestinianArab minority that developed under Israel’s constitutional definition as a “Jewish and
democratic” state. One concept labeled as the “thin” concept pertains to the PalestinianArab minority as one national group, and a second concept labeled as the “thick” concept
pertains to the Palestinian-Arab minority as a cluster of religious communities. In
introducing these two concepts, the article also identifies the limits of recognizing the
individual rights of Palestinian-Arab citizens when considered in light of these two
concepts of group rights.
Introduction
One-fifth of Israel’s citizens are Palestinian-Arabs.1 In terms of religion, the PalestinianArab minority is divided among twelve different recognized religious communities:
*
1
Bruce W. Wayne Chair of International Law; Director, Harry and Michael Sacher Institute for Legislative
Research and Comparative Law, Faculty of Law, Hebrew University of Jerusalem. Parts of this article
were delivered as the inaugural Philip Rueff Memorial Lecture organized by the British Friends of Naveh
Shalom-Wahat El-Salam, House of Lords, October 2010. The research conducted for writing this article
was supported by the Israel Science Foundation (grant 385/05). Email: [email protected]
According to the 2008 census Israel had a total population of 7,374,000 of which 1,487,600 were
Palestinian-Arabs. CENTRAL BUREAU OF STATISTICS, STATISTICAL ABSTRACT OF ISRAEL 2009 (2009), available at
http://www.cbs.gov.il/shnaton60/shnaton60_all.pdf, Table 2.1 [hereinafter CBS STATISTICAL ABSTRACT].
One should note however, that the official statistics include the Palestinian population of East Jerusalem
given the fact that this part of the West Bank was effectively annexed to Israel following the 1967
Six-Day War. The Palestinian population currently living in Jerusalem numbers 268,600. See http://jiis.org/?
cmd=statistic.296. The discussion in this article, however, will relate to the Palestinian minority in
Israel, not including East Jerusalem.
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the Muslims,2 the Druze,3 and ten Christian communities.4 Israel, however, is a Jewish
nation state, and since its establishment the Jewish majority has worked to secure its
hegemonic status.5 In light of the fact that Judaism is also a religion, special privileges
were granted to orthodox Jewish religious institutions, whether in the form of establishing public religious schools, granting statutory recognition to the Chief Rabbinate
of Israel, and more.6 In order to accommodate this national and religious multiplicity, a basic constitutional code was adopted for the country: Israel is a “Jewish and
democratic state.” This constitutional notion has become so pervasive that Israel is
demanding recognition for its constitutional character as a Jewish and democratic
state from foreigners seeking naturalization,7 and more recently from the Palestinian
Authority as a condition for moving forward in the peace negotiations.8
Yet the definition of the state of Israel as Jewish and democratic is far from clear
since “Jewish” and “democratic” are not a priori univocal value terms. Therefore, it
is not surprising that opinions regarding the significance of these terms—and even
the very justification for their being leading constitutional values—have been at the
center of a legal discussion for almost two decades between those who believe that
Jewish values can be reconciled with democratic values,9 and those who believe that
these two sets of values are totally opposed.10 Between these two extremes there
exist additional opinions which recognize the tension between Jewish values and
2
3
4
5
6
7
8
9
10
Their number is about 1,200,000 (16% of the total population and 80% of Palestinian Arabs).
Their number is about 120,000 (1.6% of the total population and 9 % of Palestinian Arabs).
Their number is about 150,000 (2% of the total population and 11% of Palestinian Arabs). CBS STATISTICAL
ABSTRACT, supra note 1, at Table 2.2. The ten recognized Christian communities are the: (1) Eastern
(Orthodox) Community; (2) Latin (Catholic) Community; (3) Gregorian Armenian Community; (4) the
Armenian (Catholic) Community; (5) Syrian (Catholic) Community; (6) Chaldean (Uniate) Community;
(7) Greek (Catholic) Melkite Community; (8) Maronite Community; (9) Syrian (Orthodox) Community;
and (10) Evangelical Episcopal Church in Israel. See R. Gottschalk, Personal Status and Religious Law in
Israel, 4 INT’L L. Q. 454, 455 (1951). The Evangelical Episcopal Church was recognized in 1970, see
Order of Recognition of a Religious Community (Evangelical Episcopal Church in Israel), 1970, KT 2557,
at 1564. In addition to these there is the Bahai Community—a religious group recognized since 1971.
Order of Religious Community (The Bahai Faith), 1971, KT 2673, at 628.
See Erik Cohen, Citizenship, Nationality and Religion in Israel and Thailand, in THE ISRAELI STATE AND SOCIETY 66,
69–74 (Baruch Kimmerling ed., 1989).
See Amnon Rubinstein, State and Religion in Israel, 4 JEWISH CONTEMP. HIST. 107, 107 (1967).
See, e.g., Isabel Kershner, Some Question Insistence on Israel as a Jewish State, N.Y. TIMES, Oct. 25, 2010, at
A6.
See, e.g., Gitanji Bakshi, Recognizing Israel as a Jewish Democratic State: Religious Politics in the Middle East,
available at http://mepei.com/in-focus/1426-recognizing-israel-as-a-jewish-democratic-state-religiouspolitics-in-the-middle-east; Marian Houk, Netanyahu Elaborates on What He Means by “Jewish State” – and
He Says It Is Also a Democratic State, available at http://un-truth.com/israel/netanyahu-elaborates-onwhat-he-means-by-jewish-state. At times the condition is about Israel as a Jewish state. For an analysis
as to why this condition has come to be, see Raef Zreik, Why the Jewish State Now?, 40 J. PALESTINE STUD.
23 (2011).
See e.g., Menachem Elon, The Values of a Jewish and Democratic State: The Task of Reaching a Synthesis, in
ISRAEL AMONG THE NATIONS (Alfred E. Kellerman et al. eds., 1998).
See OREN YIFTACHEL, Ethnocracy: LAND AND IDENTITY POLITICS IN ISRAEL/PALESTINE (2006).
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304–339minority under Israel’s constitutional definition as a “Jewish and democratic” state
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democratic values. Some work to reconcile the tensions while others prefer one
value over the other.11
The discussion concerning the constitutional values of the state of Israel as Jewish
and democratic greatly intensified as a result of the legislation of two basic laws in
the early 1990s: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of
Occupation.12 These two basic laws allow for a certain degree of judicial review over
the laws of the Knesset (the Israeli parliament) and indicate that one of the aims they
hold in common—in addition to the specific aims of each—is to express the idea that
the state of Israel is a Jewish and democratic state.13 Yet these constitutional values
concerning the state of Israel as Jewish and democratic have all along been an integral
part of Israeli constitutional law.14 Already in the Declaration of the Establishment of
the state of Israel of May 14, 1948,15 we find both the idea that the state of Israel is to
be the state of the Jewish people, as well as the wish to ensure equal rights for all its
citizens.16 Long before the enactment of the two basic laws, Israel’s Supreme Court
created ex nihilo the authority to disqualify a party list that is submitted for Knesset
elections if the list denies the right of Israel to exist;17 in addition, the Court has also,
ex nihilo, worked to create constitutional rights that would reflect the character of a
democratic society, such as freedom of expression, freedom of association, freedom
of occupation, freedom of science and the arts, to name a few.18 Moreover, from the
early years of the state of Israel, Jewish religious institutions and norms were granted
official public recognition, ensuring in the process the hegemonic status of the Jewish
orthodox establishment. Over time, this recognition needed to be mitigated, whether
for the sake of strengthening the interest of individual members who wanted to be free
from the imposition of religious norms or in an effort to accommodate other streams
11
12
13
14
15
16
17
18
See MENACHEM MAUTNER, LAW AND THE CULTURE OF ISRAEL 211–214 (2011).
Basic Law: Human Dignity and Liberty (1992), SH No. 1391 p. 150; Basic Law: Freedom of Occupation
(1994), SH No. 1454 p. 90. See generally, GARY J. JACOBSOHN, CONSTITUTIONAL IDENTITY 151 (2010).
Art. 1 of the Basic Law: Human Dignity and Liberty reads: “The purpose of this Basic Law is to protect
human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish
and democratic state.” For the English text of this Basic law, see http://www.knesset.gov.il/laws/special/
eng/basic3_eng.htm. Art. 2 of the Basic Law: Freedom of Occupation reads: “The purpose of this Basic
Law is to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel
as a Jewish and Democratic state.” For the English text, see http://www.knesset.gov.il/laws/special/eng/
basic4_eng.htm.
See AHARON BARAK, THE JUDGE IN A DEMOCRACY 82–83 (2006); David Kretzmer, Constitutional Law, in
INTRODUCTION TO THE LAW OF ISRAEL 39, 39, 46, 50–52 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995).
Declaration of the Establishment of the State of Israel, 1 LSI 3 (1948).
This document contains a declaration “on the establishment of a Jewish state in the Land of Israel, which
is the State of Israel” and it also asserts that the state “will uphold complete social and political rights
for all its citizens without discrimination of religion, race or gender; will ensure the freedom of religion,
conscience, language, education and culture.”
EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset, PD 19(3) 365
[1965].
Allen Zysblat, Protecting Fundamental Rights in Israel without a Written Constitution, in PUBLIC LAW IN ISRAEL
47 (Izhak Zamir & Allen Zysblat eds., 1996).
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in Judaism, namely the Reform and Conservative movements. Thus, the position of
Jewish religious norms and institutions in Israel achieved growing importance even
as the quest to adhere to liberal values concerned with individual autonomy has
expanded.
Since the definition of Israel as a Jewish and democratic state has been widely examined, as has the legitimacy of the definition, I will not deal here directly with these
issues. Rather, the aim of this article is to point to the development of two concepts of
group rights in respect of the Palestinian-Arab minority that have been constructed
under the constitutional definition of Israel as a Jewish and democratic state.19 The
first concept of group rights is the “thin” concept and it pertains to the PalestinianArab minority as a single national group. According to this concept, the democratic
values of the state of Israel will accommodate the Palestinian-Arab minority with only
a small measure of group rights, and only to the extent that this accommodation does
not undermine the hegemonic status of collective Jewish interests. In other words,
the Jewishness of the state formally limits the degree to which Israeli democracy can
accommodate the Palestinian-Arab minority as a national group. It thus follows that,
according to this thin concept, it would be easier for individuals from the PalestinianArab minority to attain their rights through individual claims presented as classical
liberal rights.
The second concept is a “thick” concept and it pertains to the Palestinian-Arab
minority as a cluster of religious communities rather than as a national group. In
this respect, Israel’s dual constitutional identity as a Jewish and democratic state has
worked to strengthen the religious group identity of the Palestinian-Arab community.
Once the state identified itself as a Jewish state it worked to compensate for this bias
by according recognition to the non-Jewish minorities; and since the PalestinianArab minority was supportive of maintaining the existing religious communities,
the recognition afforded by the state was also perceived as a form of a democratic
accommodation. Moreover, maintaining the religious divide between the different
Palestinian-Arab religious communities also assisted the Israeli establishment to
better control the Palestinian-Arab minority and to maintain its agenda as a nonassimilative state. The major implication of this thick concept was that it was harder
for individual Palestinian-Arabs seeking to contest the authority of their particular
religious communities to do so when relying on a classical liberal right—Israel’s
democratic norms in this respect were at least equally committed to the autonomy of
their respective religious groups.
19
The inspiration for the thin and thick dichotomy is Yael Tamir, Two Concepts of Multiculturalism, 29
J. PHIL. EDUCATION 161 (1995). However, the mode in which I chose to use the thin and thick concepts of
group rights is different from that used by her. My concepts are more focused on the extent of the group
accommodation in a nation state setting rather than on the nature and content of the accommodated
cultures. For a similar use, but phrased as a “strong version” and a “weak version,” see Ayelet Shachar,
Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation, 6 J. POL. PHIL.
285, 286 (1998).
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Many western democracies are grappling today with the issues raised by minorities
seeking group-specific accommodations.20 As a result, there is a growing interest in
what is termed group-differentiated rights, or more generally, multiculturalism as a
system of government.21 The basic question within this discussion is whether a system
committed to liberal democratic ideals that builds on safeguarding the individual
autonomy of its members can continue to differentiate, by special accommodations,
between these members on grounds of their ethnic, religious, or national identity.22
However, in many non-western states, especially those in which privileges and
accommodations are explicitly accorded to the dominant national or religious group,
the basic question is not so much about whether groups are entitled to rights but
rather about the content and limits of such rights. In identifying the two different
concepts of group rights that developed in Israel for the Palestinian-Arab minority,
this article also seeks to expose the structures and dynamics of these rights in
the context of a nation state such as Israel. This in turn will offer a fresh view of
the relationship between the political and social environment of a particular state on
the one hand, and the ability to legitimize, and eventually realize, group rights in the
particular state, on the other.23
This article is divided into two sections. The first deals with the thin concept of the
Palestinian-Arab minority’s group rights in the national sphere. The second deals
with the thick concept of Palestinian-Arab religious group rights. The context of the
discussion as a whole will be a legal analysis of these rights, their implications, and
the current developments in certain enactments and Israeli Supreme Court judgments.
1. The thin concept: national group rights
1.1. The public sphere in Israel: between the more and the less equal
I once described my alienation as a Palestinian-Arab citizen of Israel from Israel’s
public sphere by an incident that took place in my civil procedure class.24 At the outset
of the course I sought to compare the different procedural systems around the world in
an effort to contextualize the Israeli system. I inadvertently referred to Israel’s Rules of
Civil Procedure (1984), the principal body of norms governing the local civil process,
as “our” rules. At once a murmur filled the lecture hall. Later, Arab and Jewish
students admitted that the concept of “ours,” uttered by a Palestinian-Arab citizen of
Israel sounded unnatural to them. All of this notwithstanding the fact that these rules
of procedure are devoid of any national or religious credo and originated in a set of
20
21
22
23
24
See WILL KYMLICKA, MULTICULTURAL ODYSSEYS: NAVIGATING THE NEW INTERNATIONAL POLITICS OF DIVERSITY (2007).
See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995).
MONIQUE DEVEAUX, CULTURAL PLURALISM AND DILEMMAS OF JUSTICE 2 (2000).
Id. at 29.
Michael M. Karayanni, Al ha-“Shelanu”: Rav-Tarbutiyut ba-Heksher ha-Aravi-ha-Yehudi [On the Concept of
“Ours”: Multiculturalism in the Context of Arab- Jewish Relations], 27 IYUNEI MISHPAT 71 (2003).
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rules enacted by British Mandate authorities in 1938—a decade before the establishment of Israel. The murmur in the classroom would undoubtedly have been much
louder, were I to refer to the Israeli flag or to the Israeli national anthem, HaTikva (the
Hope) as “ours.” Both of these embody strong Jewish sentiments and symbols: the flag
with the star of David on a white background and between two horizontal blue stripes
that represent the Tallit—the Jewish prayer shawl, and the Israeli anthem speaking of
“as long as in the heart, within, a Jewish soul still yearns. . . .”
Beyond its symbols, Jewish collective interests have come to dominate the Israeli
public sphere in other major institutions.25 A prominent instrument in this respect is
the Law of Return (1950),26 according to which every Jew residing anywhere in the
world is granted the right to immigrate to Israel and, according to the Nationality Law
(1952),27 to become an Israeli citizen. Indeed, the Law of Return is regarded by many
as representing the central ethos of Israel as a Jewish state.28 As noted by one scholar,
this law “implies, in a nutshell, why this state had to be established and what it stands
for.”29 Jewish Zionist organizations, such as the World Zionist Organization and the
Jewish Agency, received official status.30 As one Israeli politician and diplomat has put
it, Zionism serves as Israel’s “moral and ideological basis.”31
The dominance of Jewish collective interests in Israel’s public sphere has also influenced the content of citizenship, in addition to the formality of acquiring it.32 The Jewish
majority enjoys a rich republican institution of citizenship inspired by a shared political
ideology. The citizenship relevant for the Palestinian-Arab minority, however, is
devoid of this republican element and restricted to certain guarantees of individual
liberties.33 It is not a coincidence that the Palestinian-Arab community in Israel has been
called “the most remote, excluded community from the state’s metanarratives. . . .”34
This weak connection between Israel’s state ideology and the Palestinian-Arab
minority is the major force behind the marginalization of the Palestinian-Arab
minority in Israel’s public sphere, warranting phrases such as “the invisible man”35
25
26
27
28
29
30
31
32
33
34
35
DON PERETZ, ISRAEL AND THE PALESTINE ARABS 121 (1958).
4 LSI 114 (1949–50).
6 LSI 50 (1951–52).
See HOWARD M. SACHAR, A HISTORY OF ISRAEL: FROM THE RISE OF ZIONISM TO OUR TIME 395 (2d ed. 1996).
Uri Yadin, Sources and Tendencies of Israeli Law, 99 U. PA. L. REV. 561, 567–68 (1951).
The World Zionist Organization—Jewish Agency (Status) Law, 5713-1952, 7 LSI 3 (1952–53).
Zalman Shoval, The Politics of Constitution Making in Israel Today, in CONSTITUTIONALISM: THE ISRAELI AND
AMERICAN EXPERIENCES 115, 118 (Daniel J. Elazar ed., 1990).
See GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW: INDIA’S SECULARISM IN COMPARATIVE CONSTITUTIONAL CONTEXT
78–79 (2003).
Yoav Peled, Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State, 86
AM. POL. SCI. REV. 432 (1992).
GAD BARZILAI, COMMUNITIES AND LAW: POLITICS AND CULTURE OF LEGAL IDENTITIES 7 (2003). See also Henry
Rosenfeld, The Class Situation of the Arab National Minority in Israel, 20 COMP. STUD. SOC’Y & HIST. 374, 400
(1978); Mark A. Tessler, The Identity of Religious Minorities in Non-Secular States: Jews in Tunisia and
Morocco and Arabs in Israel, 20 COMP. STUD. SOC’Y & HIST. 359, 360 (1978).
Sammy Smooha & Don Peretz, The Arabs in Israel, 26 J. CONFLICT RESOL. 451 (1982).
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or the “odd man out”36 to describe the condition of this minority. It is this dominance
that determines, finally, who can refer to public institutions in Israel as “ours.”
None of this is really new. The professional literature on Israel’s relationship with
its Palestinian-Arab minority has abundantly documented the dominance exerted by
the state towards this national minority in general,37 as well as in the particular cultural,38 legal,39 economic,40 and educational fields.41 The question I would like to pose
at this stage is how does this hegemonic structure impact the actual realization of the
Palestinian-Arab minority’s group rights? A case that I think represents more than
any other how contemporary Israeli constitutional law regards these rights is the Israeli Supreme Court decision in Adalah, The Legal Center for Arab Minority Rights in
Israel v. Municipality of Tel-Aviv Jaffa.42
The question that came before the Court was whether the municipalities of four
mixed Arab-Jewish cities, Tel-Aviv-Jaffa (with a 6% Arab population), Ramleh
(with a 19% Arab population), Lydda (with a 22% Arab population), and UpperNazareth (with a 13% Arab population) had a legal obligation to add Arabic to the
various municipal notices and road signs in these cities. The existing signboards
showing the way to public institutions were in Hebrew and English but not in
Arabic. While the petitioners—two leading human rights advocacy organizations—
claimed that there was such an obligation, the municipalities, with the support
of the Office of the State Attorney General, argued that there was no strict legal
obligation but a discretional authority that should be applied in a manner that
would favorably support the inclusion of Arabic inscription on certain municipal
signboards. In a two-to-one judgment, the Supreme Court ruled in favor of the
petitioners.
The point of departure for all of the justices was article 82 of the Palestine Orderin-Council (1922), a semi-constitutional document dating to the British Mandate
period, certain articles of which, including article 82, are still applicable in Israel
today. Under the heading, “Official Languages,” this article proclaims:
All orders, official announcements and official forms of the Government, and all official
announcements of local authorities and municipalities in the areas that will be designated
according to the decree by the High Commissioner will be published in English, Arabic and
Hebrew. . . .
36
37
38
39
40
41
42
Joel S. Migdal & Baruch Kimmerling, The Odd Man Out: Arabs in Israel, in THROUGH THE LENS OF ISRAEL:
EXPLORATIONS IN STATE AND SOCIETY 173 (Joel S. Migdal ed., 2001).
IAN LUSTICK, ARABS IN THE JEWISH STATE: ISRAEL’S CONTROL OF A NATIONAL MINORITY (1980); ELIA T. ZUREIK, THE
PALESTINIANS IN ISRAEL: A STUDY IN INTERNAL COLONIALISM (1979).
NADIM N. ROUHANA, PALESTINIAN CITIZENS IN AN ETHNIC JEWISH STATE: IDENTITIES IN CONFLICT (1997).
DAVID KRETZMER, THE LEGAL STATUS OF ARABS IN ISRAEL (1990).
NOAH LEWIN-EPSTEIN & MOSHE SEMYONOV, THE ARAB MINORITY IN ISRAEL’S ECONOMY—PATTERNS OF ETHNIC
INEQUALITY (1993).
SAMI KHALIL MAR’I, ARAB EDUCATION IN ISRAEL (1978).
HCJ 4112/99 Adalah v. Municipality of Tel Aviv –Jaffa, PD 56(5) 393 [2002].
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When the state of Israel was established in 1948, this order was amended by
removing the English language,43 which means that the remaining official languages
after the establishment of the state were Arabic and Hebrew.
Another point of departure for the Court was that article 82 did not apply to the
case before it, since even if the municipal signboards were included in the term
“official announcements of the local authorities and municipalities,” the High
Commissioner—or the state of Israel to which his authority was transferred—did not
issue a decree that defined the areas in which publication in the said official languages
should be made.44
This latter point notwithstanding, the majority—President Aharon Barak and
Justice Dalia Dorner—took the view that under the circumstances of the case at hand
the four municipalities did have a legal obligation to add Arabic inscription to all
municipal signboards.
The course of reasoning taken by President Barak starts by making it clear that the
statutory authority of a municipality in making signboards is not absolute but must
conform to the standards of administrative review. These standards decree that, in
carrying out its discretional authority, the municipality must ensure that its decision
conforms to the specific purpose of the authorizing statute and to the basic norms of
the legal system. In the present case, these include the setting up of an appropriate
signboard, well affixed and understandable by all,45 the protection of the inhabitants’
rights to their own language,46 the principle of equality,47 and the status of the Hebrew
language as the first official language of Israel48 and as “the force that unifies us as
members of one state.”49 The balance between these aims led President Barak
to derive the legal obligation of the authorities to set up municipal signboards that
included Arabic inscriptions as well. Anticipating that this position might serve as a
precedent for future claims by other linguistic minorities in the country, such as the
Russian and Ethiopian Jewish communities, President Barak went on to underscore
the special status of Arabic as the language of the largest minority. He observed that
the Arab minority had “lived in Israel since ancient times,”50 and that its members
wished “to live in Israel as loyal citizens with equal rights and respect for their
language and culture.”51 In light of the “wish to ensure the honourable coexistence of
the descendants of our forefather Abraham in mutual tolerance and equality,” Barak
ultimately found the justification to “recognize [the right to inscribe] the Arabic
43
44
45
46
47
48
49
50
51
Law and Administration Ordinance, 5708-1948, art. 15(2), 1 LSI 7 (1948).
Adalah, supra note 42, at 411 (President Barak), 430 (Justice Cheshin), 473 (Justice Dorner).
Id. at 412.
Id.at 412–413.
Id. at 414.
Id. at 414–415.
Id. at 415.
Id. at 418.
Id.
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language on municipal signboards—in those cities where there is a considerable
Arab minority.”52 But to this recognition he attached the emphatic recognition that
Hebrew is the “elder sister,”53 given the fact that Hebrew is the “main language” of the
state of Israel.54 Accordingly, the recognition of Arabic will be granted so long as there
is no actual damage “to the superior status of the Hebrew language.”55 It was also
emphasized that within the municipal framework “recognition of [the right to have]
Arabic inscription only slightly impairs the national identity of the State of Israel.”56
Justice Dorner, on the other hand, derived the obligation of the municipalities to
add Arabic inscriptions directly from the official status of the Arabic language as
evinced in article 82 (and from other laws that recognize the special status of Arabic),
rather than from the series of considerations which local government authorities are
obliged, as public organs, to take into account.57 This does not, however, imply that
both languages are equal in all respects, as Justice Dorner took pains to emphasize:
although the Declaration of Independence ensures that each citizen of the state will
enjoy freedom of language, education, and culture, Hebrew still has a special status
as an “important national value for the Jewish people.”58 Thus, although Arabic should
be recognized as an official language, this recognition still has to be subject to Hebrew as
“the first official language of the State of Israel as the national language of the majority.”59
In a minority opinion, Justice Mishael Cheshin maintained that there is no obligation to add Arabic inscriptions to municipal signboards, on three counts. First, the
aim of municipal signboards is functional: to allow citizens to find their way around
within the city.60 The petitioners, however, did not present any evidence that an Arab
citizen of any of the cities could not find its way because of the lack of Arabic inscriptions on the local signboards.61 Second, the petition deals with the right of a group and
not the right of an individual or the freedom of an Arab citizen to make use of his or
her Arabic language—while the Court, in its capacity as the High Court of Justice that
reviews actions taken by the government and other administrative authorities, only
recognizes the rights of individuals and not the rights of groups.62 Third, the petition
is political63 and therefore should be decided within the framework of existing political
institutions, such as the local government authorities or the Knesset, and by means of
the normal democratic process.64
52
53
54
55
56
57
58
59
60
61
62
63
64
Id.
Id.
Id. at 417.
Id.
Id.
Id. at 473.
Id. at 475.
Id.
Id. at 441.
Id. at 441–442.
Id. at 453.
Id. at 456.
Id. at 461.
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Before explaining the constitutional significance of this landmark case, certain
assumptions made by the Court, which were either factually mistaken or did injustice
to the existing legal and political reality, must be disclosed. First, the British High
Commissioner did in fact issue an order that obliged the respondent municipalities to
include all the official languages in municipal official announcements, even though
the Court and the Attorney General assumed that such an order was not issued.65
This mistaken assumption does not matter much to the outcome of the case, for the
majority opinion reached a conclusion that comports with the fact that such an order
was issued. Questions may also be asked regarding the accuracy of the assumptions
made by the minority justice. While municipal signboards are certainly instrumental,
and intentionally so, they are at the same time part of the public sphere and participate
in shaping it. Thus, in a country that is both bi-national and bilingual, signboards
in only one language would signal a message of power—and of lack of power; of
belonging—and exclusion. Justice Cheshin failed to recognize this. Second, the proposition that the Israeli Supreme Court did not recognize collective rights in the past,
but only individual rights, is also questionable. Collective motives and aspirations
operate behind many Israeli laws whose objective is to guarantee national and religious identity of the state of Israel as a Jewish state. The Law of Return (1950) is one
clear example. This law not only guarantees the individual right of a Jew in a foreign
country to immigrate to Israel, but can be perceived as leading to the right of Jews,
as a group, to secure a Jewish majority and Jewish culture in Israel. As a result, one
can reasonably argue that landmark cases of the Israeli Supreme Court, such as those
dealing with the definition of “who is a Jew” under the Law of Return, not only deal
with the individual right of the person seeking to gain a personal advantage under the
law, but equally, if not essentially, are concerned with how the Jewish collectivity in
Israel seeks to define itself.66 It is also remarkable that Justice Cheshin has overlooked
the fact that matters of marriage and divorce in Israel have been traditionally governed by one’s religious group,67 rather than one’s subjective preferences.68 Another
mistaken assumption in Cheshin’s ruling is his clear distinction between individual
rights and collective rights. It is largely acknowledged today that in spheres such as
language, culture, and religion the divide between group rights and individual rights
is not absolute, because the individual needs the group in these spheres in order to
live and maintain his or her identity, and the group needs its individual members in
order to continue to exist as a group.69 In other words, in maintaining the group
65
66
67
68
69
Ilan Saban, Kol (Du-Lashoni) Boded be-Afela? [A Lonely (Bi-lingual) Cry in the Dark?], 27 IYUNEI MISHPAT
109, 137–138 (2003). Still, this would not have resolved the issue completely, since it would have been
necessary to decide whether signboards are “official announcements”.
See GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES 63–80 (1993).
See also Izhak Englard, The Conflict between State and Religion in Israel: Its Ideological Background, in
INTERNATIONAL PERSPECTIVES ON CHURCH AND STATE 219, 231 (Menachem Mor ed., 1993).
MARTIN EDELMAN, COURTS, POLITICS, AND CULTURE IN ISRAEL (1994).
Petition for Marriage Dissolution 8/81 Bloch v. Attorney General, 35(4) PD 449, 453 [1981].
On the relation between group protection and the needs of the individual that belongs to it, see KYMLICKA,
MULTICULTURAL CITIZENSHIP, supra note 21, at 82–93.
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right to preserve and sustain its language one is also maintaining the individual right
to preserve and sustain a language. Nor, indeed, can language as a whole be said to
exist “individually”; it needs a community that will speak it and write it in order for
it to exist, let alone flourish and develop. Third, the proposition suggesting that the
issue under consideration in the petition should be resolved by national and local political institutions is as implausible as it is naive. Many minority issues come before the
courts, and decisions are sometimes made against the government. Courts are very
aware that legal action can be the only recourse for minorities, given their limited political power. Israel is no exception. Palestinian-Arab parties have traditionally been
excluded from any government coalition, and on the whole, possess only marginal
political power, both nationally and in those cities in which they are a minority.70
To return to the actual holding of the judgment, two important constitutional
propositions are discernable—propositions that adequately represent the thin concept of group rights available to the Palestinian-Arab minority in Israel. The first is
that Israeli constitutional law is prepared to grant certain group accommodations
to the Palestinian-Arab minority, within limits. Thus President Barak notes the special status of the Palestinian-Arab minority as an indigenous minority which may be
entitled to accommodations that other minorities in the country will not be entitled
to.71 The second is the constitutional hierarchy that limits the extent of the collective
accommodations for the Palestinian-Arab minority. These accommodations will be
permitted as long as they do not threaten the higher status of Jewish rights, even if
the challenge is that of an indigenous and generally peaceful minority. Thus, if all
municipalities in Israel were obliged to add Arabic inscription to their signboards,
regardless of whether they had any Palestinian-Arab residents, the thin concept
would not permit it, even though by the letter of the law Arabic and Hebrew are equal
in their status as official languages. This shows how the Jewish component in Israel’s
constitutional definition as a Jewish and democratic state serves as a constitutional
cap to the democratic principle of equality, at least where the group rights of the
Palestinian-Arab minority are concerned.
1.2. The individual versus the group
There is one notion implicit in Justice Cheshin’s opinion discussed earlier that does
adequately portray the existing tendencies and preferences in the jurisprudence of the
Israeli Supreme Court. This is the tendency to be more accommodating to claims of
unequal treatment when made by individual Palestinian-Arab citizens rather than
to claims made by the Palestinian-Arab minority as a group. Although I think that
70
71
Gad Barzilai, Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli ArabPalestinian Community, 34 ISRAEL L. REV. 425, 433 (2000). At best they managed to form a political block
that helped maintain the second Rabin government in the mid-1990s, but no more. See YITZHAK REITER,
NATIONAL MINORITY, REGIONAL MAJORITY: PALESTINIAN ARABS VERSUS JEWS IN ISRAEL 155 (2009).
See Ilan Saban, After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath
of October 2000, 14 ISRAEL AFF. 623, 633 (2008).
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Justice Cheshin was wrong in dismissing the very possibility of claiming group rights
in an administrative petition before the Supreme Court, I do think that the Court is
more at ease in recognizing the claims of the Palestinian-Arab minority within the
framework of individual rights rather than as a group right. This tendency also conforms to the traditional notion of citizenship under which Palestinian-Arabs are
entitled to guarantees of individual liberties as distinct from rights of a republican
nature.72 One case that stands out in this respect is that of Qa’adan v. Israel Land
Authority.73 A Palestinian-Arab family of four, the Qa’adans, sought admission to Katzir,
a residential community located in central Israel, in order to build a home there. As
the Israeli Supreme Court ultimately determined, the Qa’adans were denied admission
on the basis of Katzir being an exclusively Jewish community.74 It turned out that the
land appropriated for the residential community in Katzir was granted by the Jewish
Agency, which had in turn acquired the land from the Israel Land Authority (ILA),
which is an organ of the state of Israel. The Qa’adans ultimately prevailed, with the
Court holding that the ILA cannot appropriate land to bodies that will exclude the
admission of Arab citizens.75 In making this holding, President Barak responded to
two major arguments made by the respondents in the case, thereby making the
decision even bolder in upholding the individual rights of the Qa’adans. The first was
that denying Arab citizens admission to the exclusively Jewish residential community
in Katzir was not unequal, since ILA was willing to appropriate land for an exclusively Arab residential community. This argument was debunked by the Court for
introducing the well-known but overwhelmingly abandoned principle of “separate
but equal.” Following the landmark case of Brown v. Board of Education of Topeka, the
Court held that a policy of separate treatment is inherently unequal.76 The second
argument was that the establishment of exclusively Jewish townships is a legitimate
project under Israel’s constitutional definition as a Jewish and democratic state. This
argument was also rejected by President Barak. He noted that the Jewish character
of the state of Israel is evident in the Law of Return, including that the “Hebrew
language will be the main language of the state and its festivals will reflect the
72
73
74
75
76
Peled, supra note 33, at 432–433.
HCJ 6698/95 Qa’adan v. Israel Land Authority, 54(1) PD 258 [2000].
It should be noted that the formal condition was that membership in the community was available only
to Israeli army veterans or those legally exempt from service. However, the Court determined that the
immediate effect of such a condition is to preclude membership from Arab citizens of the state, in view of
the well-known fact that Arab citizens do not generally serve in the Israeli army. Id. at 265.
Id. at 283.
Id. at 279. Moreover the court notes that there is no pending request for an exclusively Arab township
and in practice the state has appropriated land for the exclusive use of one party only to Jews. Id. This
point was criticised by Nomi May Stolzenberg who argued that the Brown decision was rendered in a
political context that aspired for integration, a context that does not exist in Israel. To the contrary, the
Israeli model of a nation state is that of keeping Arabs and Jews apart and both sides accept this. See
Nomi May Stolzenberg, The Phantom of Integration, in 2 THE JEWISH POLITICAL TRADITION 554 (Michael Walzer
et al. eds., 2003). Interestingly, she specifically mentions one exception, that of Neveh Shalom—Wahat
El-Salam. Id. at 555.
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national revival of the Jewish people; that the Jewish heritage will be a central component in its religious and cultural legacy, and various other inferences that need not
be stated.”77 But all this does not uphold unequal treatment of Israeli citizens, be they
Jewish or Arab. Barak went on to observe that Jews are endowed with a special privilege when immigrating to Israel, but once present in the country they and other
citizens of the state are to enjoy equal rights.78 He thus categorically concludes that
there is no contradiction in the state’s being both Jewish and democratic.79 The
state was finally ordered to ensure that the Qa’adans be considered for residency in
the community settlement of Katzir on the assumption that their candidacy is equal
to that of all others.
The Qa’adan decision was perceived by some researchers as undermining Jewish
collective interests of preserving Jewish culture and identity.80 If Palestinian-Arab citizens were to come by the tens to live in settlements such as Katzir, the Jewish-Zionist
project of transforming predominantly Arab sections of Israel to Jewish would be put
at risk.81 This makes the decision in Qa’adan especially important given the fact that
the Court was willing to prefer the preservation of the principle of equal treatment
even if this would undermine the asserted interest of the Jewish community in keeping the residential community in Katzir exclusively Jewish. However, this case does
not contradict the Adalah case discussed earlier. At issue in Qa’adan was the individual
right to equality as opposed to the group right to equality as it stood in Adalah.
Notwithstanding the fact that in many spheres it is hard to make the distinction
between an individual right and a group right, it is evident that Israeli constitutional
law does make the distinction and, in fact, is willing to do more for maintaining the
principle of equality when individual rights are concerned.
1.3. On national priority zones and family unifications
There are two important developments that cast doubt as to whether the thin concept
of group rights and its ancillary proposition of enhanced opportunities for equality
through claims of individual rights are still valid. A recent Supreme Court judgment
suggests that the thin concept might be thicker than imagined, while another decision as well as a series of recent legislative initiatives suggests that the capacity of
Palestinian-Arab citizens to gain equality through individual claims is much thinner
than perceived in Qa’adan.
77
78
79
80
81
Qa’adan, supra note 73, at 281.
Id. at 282.
Id.
See Yaffa Zilbershats, Badlanut be-Megurim Begin Hishtaykhut Etnit-Le’umit – ha-Omnam Rak Zekhuto
shel’ ha-Mi’ut? [Separation of Residence Based on Ethinicity – A Minority-Only Right?], 6 MISHPAT U-MIMSHAL
87 (2001); Shalom Lerner, Admot Eretz Israel: Teritoriya, Moledet ve-Le’om [Lands of the Land of Israel:
Territory, Homeland and Nation], 24 MEHKAREY MISHPAT 343 (2008).
Oren Yiftachel, “Ethnocracy” and its Discontents: Minorities, Protests, and Israeli Polity, 26 CRITICAL INQUIRY
725, 736–742 (2000).
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(a) National priority zones and the prospect of enhanced group rights
In an effort to encourage settlement in certain areas, the Israeli government has
endorsed a plan whereby it can designate certain areas in the country as national
priority zones. Such a designation entitles Israeli citizens who live or move there to
different privileges, such as tax breaks, subsidized loans, enriched schooling programs,
etc. In the list that was published in 2002, 535 townships were designated as
national priority zones, including Jewish settlements in the Occupied Palestinian
Territories. Only four of the townships were Palestinian-Arab. Three PalestinianArab organizations sought to challenge the legality of this list, claiming that it was
discriminatory against the Palestinian-Arab minority.82 Interestingly, no PalestinianArab townships or citizens were listed as petitioners, nor did the petition indicate that
any particular Palestinian-Arab township should be included in the published list of
national priority zones. Practically, therefore, the petition was filed in the name of the
Palestinian-Arab minority as a group. The Israeli Supreme Court convened in a
special panel of seven Justices who ruled unanimously in favor of the petitioners.
The first question the Court set out to decide was whether in applying its usual
powers the government was authorized to determine national priority zones. The
second was whether the boundaries of these areas were set in a way that violated
the principle of equality, which would entail invalidating the government decision as
being discriminatory. Regarding the first question, the Court held that determining
national priority zones is a matter that requires primary legislation by the Knesset.83
Therefore the government was not permitted at all to designate areas of national priority, not even by applying its far-reaching powers under section 32 of the Basic Law:
The Government.84 With regard to the question of discrimination, it was determined
that in light of the fact that such a small number of Palestinian-Arab townships were
included in the list of national priority zones—which themselves were found by the
Court to be also small in terms of their population—the action of the government is
blatantly discriminatory and thus cannot stand.85
The potential evident in this decision in terms of advancing the equal treatment
between Palestinian-Arabs and Jews in the country is great. Not only did the Court
adopt stringent standards in examining and determining the existence of discriminatory treatment, it did so without noting or discussing the fact that the petition was
actually argued in the name of the Palestinian-Arab minority as a group. Moreover,
in making its pronouncement, the Court did not condition the equal treatment for
the Palestinian-Arab minority upon being compatible with the superior status of any
82
83
84
85
HCJ 11163/03 Higher Follow-Up Committee for Arab Affairs in Israel v. Prime Minister of the Government of Israel (Feb. 27, 2006), Nevo Legal Database (by subscription).
The main opinion of the court in this matter was given by the Vice-President, Justice Mishael Cheshin.
Art. 32 of the Basic Law: The Government states that “The Government is authorized to perform in the
name of the state and subject to any law, all actions which are not legally incumbent on other authority.”
The main opinion in this matter was given by the President of the Supreme Court, Justice Aharon Barak.
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collective Jewish interests. Thus, in theory, this decision can serve as a springboard
for the filing of new petitions in which Palestinian-Arabs in Israel will be able to counteract unequal appropriation of land, governmental budgets and more. However, as
will be shown below, this assessment seems to be more of an illusion.
(b) Citizenship and family unification
In May 2006, some three months after the Supreme Court handed down its decision
on national priority zones, it handed down another decision that many regard as a
serious encroachment on the individual rights of Palestinian-Arab citizens of Israel.
This was the decision in Adalah, The Legal Center for Arab Minority Rights in Israel v.
Minister of Interior,86 known as the “family unification case” or the “citizenship law
case.” This case dealt with the constitutional validity of a law that restricted the ability
of Palestinian-Arab citizens of Israel to be joined in Israel with their spouse or children
if the latter happen to be residents of the West Bank or the Gaza Strip under the
Citizenship and Entry into Israel Law (Temporary Measures) (2003). Although the
state authorities maintained in their arguments before the Court that the objective
of the law was to serve state security interests, and the Court accepted the argument,
the law does not require demonstrable proof that the spouse or a child are in any way
a threat to Israel’s national security. The Palestinian resident of the West Bank or the
Gaza Strip can be denied entry to Israel and unification with his or her family simply
because of his or her status as a resident of one of these territories. It is important to
add that the law does not refer to the national or ethnic identity of the parties seeking
unification, but since Jews who live in the West Bank or the Gaza Strip (before the
disengagement in 2005) could acquire Israeli citizenship under other provisions of
the Nationality Law, and in any case under the conditions of the Law of Return, the
Court deemed the law applicable only to family unifications among PalestinianArab citizens of Israel. It should also be noted that the law offers an exception under
which Israeli authorities can, as a matter of discretion, permit entry into Israel to
a Palestinian wife who is aged over twenty-five or a Palestinian husband who is over
thirty-five if they seek unification with their Israeli Palestinian-Arab spouse.
Palestinian-Arab and Jewish members of Knesset, human rights organizations, as
well as a number of Palestinian-Arab citizens of Israel who were personally affected
by the law, challenged the validity of the law before the Israel Supreme Court. It was
argued that the law unduly offended the protected right to establish a family and
the right to equality—both conceived as part of an individual’s right to human
dignity protected by Israel’s Basic Law: Human Dignity and Liberty. The Supreme
Court convened in an extraordinary panel of eleven justices. The law was ultimately
declared valid, though a substantial minority of five justices thought that it should
not be. According to this group, led by the Court’s president, Aharon Barak, the
law disproportionately infringed the right of Palestinian-Arab citizens of Israel to be
86
HCJ 7052/03, 61(2) PD 202 [2006].
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united in Israel with their spouses and children. To deny family unification across the
board and without individual examination of each applicant was perceived as exceeding the appropriate measure that could be taken by the state. Another group of five
justices found the law to be valid. Admitting that the law would severely affect the
lives of many Palestinian-Arab citizens of Israel, this group found it to be a reasonable measure given the security needs of Israel. The swing vote was given to Justice
Edmond Levi, who thought that the law unduly infringed on the protected rights of
Palestinian-Arab citizens of Israel, but that in light of the persistent security interests
of the state the law should continue to be in effect for an additional provisional period
during which a more balanced normative scheme can be injected to the existing law.
The law with the restriction on family unifications was intended to be a provisional
measure, but continues with minor amendments year after year, and is still in effect
today. In the latest version of the law, family unification with spouses coming from
what are defined as enemy states (Lebanon, Syria, Iran, and Iraq) was also banned. A
petition challenging the legality and constitutionality of these extensions still awaits
judgment in the Supreme Court.
The Supreme Court decision in the family unification case demonstrates that the
individual rights of Palestinian-Arab citizens of Israel can be so severely limited as to
deny them the possibility of uniting with their spouse or child in their home country if
and when a general state security interest overrides the interests of a particular family
unification case. This is a retreat from the Qa’adan decision, in which the individual
interests of the Palestinian-Arab individual citizen did manage to defeat the state
interest.87
1.4. Where does the thin concept of group rights lead?
The two Supreme Court judgments discussed above may seem contradictory. Even
while the Court was willing to liberalize its stance on the ability of the Palestinian-Arab
minority to achieve more group rights as evident in the Higher Follow-Up Committee
case, it constitutionally validated the effort to limit the ability of Palestinian-Arabs, as
individual citizens, to achieve better protection of their individual rights, as demonstrated in the family unification case. Upon a closer look, however, the contradiction
vanishes. The thin concept of group rights for the Palestinian-Arab minority is threatening to become even thinner, given recent developments in respect of the Higher
Follow-Up Committee case and other legislative initiatives now pending, all of which
obstruct the ability of Palestinian-Arab individuals to achieve equal rights.
In its decision on the Higher Follow-Up Committee case the Court gave the Israeli
government a grace period of twelve months in order to implement its decision, given
87
It is important to note that the dissenting Justice in Qa’adan, Ya’akov Kedmi, specifically asserted that
the right of equality can be overridden by national security concerns, as is indeed the case here. Katzir,
as Kedmi notes, was established for the residence of army veterans thereby underscoring its national
security objective. Qa’adan, supra note 73, at 287–288.
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that changing the list of townships in the national priority zone might have immediate budgetary ramifications for the government as well as for the already designated
townships. However, until today, the Israeli government has not implemented the
judgment. On the contrary, it passed a law that grants an extension until January
2012. Another petition was then filed in the Israeli Supreme Court by the original
petitioners in which the Court is asked to declare this legislation null and void under
its judicial review powers; this petition is still pending. The promise of group equality
as envisioned in the Higher Follow-Up Committee is at best a norm in the books but far
from being the norm in practice.
A number of troubling legislative initiatives by the government and government
coalition partners might, if successful, continue undermining the individual rights
of Palestinian-Arab citizens of Israel. Here is a sampling of some of them. David Rotem,
the head of the Knesset Constitutional, Law and Justice Committee, has submitted a
bill regarding Population Registrar (Amendment—Oath to the State, the Flag and
the National Anthem) (2009). According to this bill, each resident of Israel, upon
receiving his or her identity card, must sign a statement in which he or she pledges “to
be faithful to the state of Israel as a Jewish and Zionist state, to the Country’s flag and
national anthem. . . .” It is important to add that Israeli residents over sixteen must
carry their identity card with them at all times, otherwise they can be held criminally
responsible and fined.88 In October 2010 the Israeli government voted to support a
requirement for an oath of loyalty applicable, for the time being, only to non-Jews who
are naturalized as Israeli citizens.89 Jews who immigrate to Israel under the Law of
Return need not take the oath.
Another bill was submitted which pertained to the Film Law (Amendment—Oath
of Loyalty) (2010), according to which government funding for films would be conditional upon the signing of an oath of loyalty to the “State of Israel, its symbols, and its
Jewish and democratic values” by the film’s editors, producers, directors, and actors.
The bill is still pending.
Another bill was successfully enacted into law but with an interesting twist. The
original bill was called Communal Cooperatives Law (Admissions Committees to
Community Settlements in the Galilee and the Negev) (2009). According to the bill,
admissions committees in community settlements established on state land may
take into consideration a candidate’s suitability to what was termed the “community’s social and cultural fabric.” As noted by a prominent Israeli legal scholar, the
primary objective of the bill is to exclude Arabs from being admitted to such community settlements in the Galilee and al-Naqab—two regions that have a high percentage
of Palestinian-Arab citizens,90 and in the process effectively overturning the Qa’adan
88
89
90
Identity Certificate (Possession and Presentation) Law, 5743-1982, 37 LSI 19 (1982–83).
Available at http://www.ynetnews.com/articles/0,7340,L-3967149,00.html.
See Mordechai Kremnitzer, Israel’s Legislation Could Eventually Serve its Enemies, HAARETZ, Nov. 1, 2010,
available at http://www.haaretz.com/print-edition/opinion/israel-s-legislation-could-eventually-serveits-enemies-1.322215.
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decision. The Israeli government backed this initiative.91 However, in the enactment
itself as it was being passed in the Knesset,92 another provision was added, perhaps to
safeguard the enactment against judicial review, that admissions committees shall
not reject a candidate on the basis of his or her “race, religion, gender, nationality,
handicap, family status, age, sexual orientation, country of origin, views or partypolitical affiliation.”93 This latter provision could defeat the original intention of this
legislative initiative altogether. Given the elaborate and explicit prohibition against
discrimination, it would be hard for an admissions committee to deny admission to a
Palestinian-Arab citizen on the basis of his or her national affiliation, but only on the
basis of a specific attribute of his or her individual character. If ten Palestinian-Arab
families were to apply together to a community settlement and were all rejected, there
would probably be a very strong case to make on their behalf, now with the backing of a specific provision of a law whose intention was to achieve just the opposite
result. Althought it may lead to the rejection of one or two Palestinian-Arab families,
it will outlaw the rejection of ten Palestinian-Arab families. Will this anti-discrimination
provision override the original intent of the enactment? Only time will tell.
Whatever the outcome, it is evident that the direction is to erode the already thin
concept of group rights discussed earlier. What emerges is what Gad Barzilai has
termed “fantasies of liberalism.”94 In keeping with this paradigm, even the individual
right of the Palestinian-Arab citizen should be accorded as long as it does not undermine the Jewishness of the state. In fact, in Barzilai’s opinion, this precondition was
implicit in the Qa’adan decision itself.95 It is anticipated that the current definition of
Israel as a Jewish and democratic state would maintain the thin concept of national
group rights for the Palestinian-Arab minority in the years to come. What is interesting
is that when we move into the religious rights of the Palestinian-Arab minority what
emerges is the reverse—their religious group rights come first and their individual
rights come second.
2. The thick concept: Religious group rights
2.1. The religion-and-state narrative
The issue of “religion and state” has accompanied the development of Israeli constitutional law since the beginning of statehood and even prior to that.96 The discussion
of the subject of religion and state has been so intense and polarized that it has been
91
92
93
94
95
96
Id.
Cooperative Associations Ordinance (Amendment No. 8), 5771-2011, SH No. 2286 p. 683.
Id. art. 6C(c).
Barzilai, supra note 70.
Id. at 450.
Gidon Sapir, Religion and State in Israel: The Case for Re-evaluation and Constitutional Entrenchment, 22
HASTINGS INT’L & COMP. L. REV. 617, 617-18 (1999).
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common to describe it as a rift equal in status to the other rift that characterizes Israeli
society as a whole—the Jewish-Arab rift.97 But what exactly is the content of the religion
and state discussion? A survey of the extensive literature on this subject shows clearly
that the question of religion and state in Israel has focused upon the confrontation
between the public recognition afforded to Jewish religious institutions and democratic
liberal values concerned with the individual citizen.98 The confinement of the religion
and state discussion in Israel to the Jewish community is so complete that in the subjectindex of the leading commentary on Israel constitutional law one finds the following
entry: “Religion and state—see Jewish State.”99 Indeed, issues commonly discussed
within the Israeli religion and state debate are Jewish-centred. These include the four
issues in the historic status quo letter addressed in 1947 by three officials of the Jewish
Agency (including David Ben-Gurion, soon to become Israel’s first prime minister) to a
Jewish ultra-Orthodox party;100 they are: the Sabbath as a official day of rest;101 observing
the dietary laws of kosher food in state-run establishments;102 rabbinical court jurisdiction in matters of marriage and divorce;103 and a separate system of religious schools.104
In due course, other subjects were added to the list of religion and state issues that were
equally centred on concerns of the Jewish community, such as the standards defining
“who is a Jew,”105 religious versus secular burials, recruitment of yeshiva students to the
Israel Defense Forces (IDF),106 conversion,107 and the propriety of the dominance of the
Orthodox stream in Judaism over the Conservative and the Reform streams.108
97
98
99
100
101
102
103
104
105
106
107
108
See MAUTNER, supra note 11, at 193.
Michael Karayanni, The Separate Nature of the Religious Accommodations for the Palestinian-Arab Minority
in Israel, 5 N.W. U. J. INT’L HUM. RTS 41 (2006).
AMNON RUBINSTEIN & BARAK MEDINA, HA-MISHPAT HA-KONSTUTSIONI SHEL’ MEDINAT YISRA’EL [THE CONSTITUTIONAL
LAW OF THE STATE OF ISRAEL] 533 (6th ed. 2005).
Menahem Friedman, Ve-Ele Toldot ha-Status-Kvo: Dat u-Medina be-Yisra’el [The History of the Status Quo:
Religion and State in Israel], in HA-MA’AVAR MI-YISHUV LE-MEDINA: RETSIFUT VE-TMUROT [TRANSITION FROM YISHUV
TO STATE, 1947–1949: CONTINUITY AND CHANGE] 47 (Varda Pilovsky ed., 1990); Rubinstein, supra note 6, at
113.
See HCJ 5016/96 Horev v. Minister of Transport PD 51(4) 1[1997], available in English at http://elyon1
.court.gov.il/files_eng/96/160/050/a01/96050160.a01.htm.
See HCJ 953/01 Solodkin v. Beit Shemesh Municipality, PD 58(5) 595 [2004]; HCJ 465/89 Riskin v. Jerusalem Religious Council PD 44(2) 673 [1990].
See PINHAS SHIFMAN, MI MEFAKHED M-NISSU’IN EZRAKHI’IM? [CIVIL MARRIAGE IN ISRAEL: THE CASE FOR REFORM] (1995).
See Stephen Goldstein, The Teaching of Religion in Government Funded Schools in Israel, 26 ISRAEL L. REV. 6
(1992).
Eliezer Don-Yehiya, Dat u-Medina be-Yisrael: Hitpatkhuyot u-Megamot ba-Mekhkar [State and Religion in
Israel: Developments and Trends in Research, in MEDINA VE-KEHILAH [STATE AND COMMUNITY] 151 (Moshe Naor
ed., 2004).
HCJ 910/86 Ressler v. Minister of Defense, 42(2) PD 441 [1988], available in English at http://elyon1.
court.gov.il/files_eng/86/100/009/z01/86009100.z01.htm. See also Menachem Hofnung, Ethnicity,
Religion and Politics in Applying Israel’s Conscription Law, 17 L. & POL’Y 311 (1995).
HCJ 2597/99 Rodriguez-Tushboym v. Minister of Interior, 58(5) PD 412 [2005]; HCJ 507095 Na’amat v.
Minister of Interior, 56(2) PD 721 [2002]; HCJ 1031/93 Passero (Goldstein) v. Minister of Interior, 49(4)
PD 661[1995].
See HCJ 1438/98 Traditional Movement in Israel v. Minister of Religion, 53(5) PD 337 [1999].
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One major reason why the religion and state discussion was Jewish-centred was
the wide statutory recognition granted to Jewish religious institutions—a recognition
that essentially made (orthodox) Judaism the established state religion.109 In respect
of judicial organization, the Knesset has enacted an independent statute that defines
the jurisdiction of rabbinical courts and the appointment of judges (dayyanim) to such
courts.110 Special legislation organizes the operation of other Jewish religious institutions such as the Chief Rabbinate111 and Jewish religious councils.112 The Knesset has
also enacted laws regulating kosher food,113 kosher certification and fraud prevention
in the selling of Jewish religious items114 such as Torahs, teffilin (phylacteries),115 and
mezuzot.116 Jewish religious holidays and days of remembrance won statutory recognition.117 In addition, the Knesset also sought to guarantee the preservation of the
heritage of certain Jewish communities in legislation.118 Recently, special legislation
was issued regulating rabbis’ places of residence.119 In addition, the Ministry of
Education has, from the establishment of the state of Israel until today, operated a
Jewish religious public school system parallel to the “general” system that is fully
funded by the state.120
It is common to attribute the extensive recognition of Jewish religious institutions
and norms to the political reality of the country. Jewish (orthodox) religious parties
have been always sought after for government coalitions, and as a result achieved
considerable political leverage that worked to guarantee recognition and support
109
110
111
112
113
114
115
116
117
118
119
120
See Martin Edelman, A Portion of Animosity: The Politics of the Disestablishment of Religion in Israel, 5 ISRAEL
STUD. 204 (2000); Shimon Shetreet, State and Religion—The Case of Israel in Comparative Perspective, 13
NOTRE DAME J. L. ETHICS & PUB. POL’Y, 421, 435–437 (1999).
The Rabbinical Courts (Validation of Appointments) Law, 5712-1952, 6 LSI 62 (1951–52); Dayanim
Law 5715-1955, 9 LSI 74 (1954–55).
Chief Rabbinate of Israel Law, 5740-1980, 34 LSI 97 (1979–80).
Jewish Religious Services (Consolidated Version) Law, 5731-1971, 25 LSI 125 (1970–71). These
religious councils work to minister to the religious needs of the Jewish community in such matters as
maintenance of synagogues, cemeteries, ritual baths, supervision of ashrut, and the appointment of
marriage registrars. See EDELMAN, supra note 67, at 52.
Kashrut (Prohibition of Deceit) Law, 5743-1983, 37 LSI 147 (1982–83); Kasher Food for Soldiers
Ordinance, 5709-1948, 2 LSI 37. (1948–49).
Phylacteries and Mezuzot (Prevention of Cheating) Law, 5735-1974, 29 LSI 21 (1974–75).
These are small boxes containing parchments with four passages from the Bible. A leather strap connects
one box to the head. Another strap attaches the second box to the left arm near the heart during morning
prayer, following a Biblical decree (Deut. 6:8) and symbolizes the emotional and intellectual belief in
Judaism.
A mezuzah is a small case, made of various materials, about 3 inches (8 centimetres) long and contains
parchment inscribed with fifteen verses from the Bible. The mezuzahis placed at the upper section of the
right doorpost of the home and of each room. It serves as a reminder of God’s presence everywhere.
Prohibition of Opening Places of Entertainment on Tisha’a be-Av (Special Authorization) Law, 57581997, SH No. 1637 p.8.
Council for the Perpetuation of the Heritage of Sephardic and Oriental Jewry Law, 5762-2002, SH No.
1876 p. 92.
Residence of Rabbis in their Place of Service Law, 5762-2002, SH No. 1877 p. 101.
See Goldstein, supra note 104.
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for Jewish religious institutions.121 Another assessment maintains that public recognition granted to Jewish religious institutions and norms was a result of the consociation model being the optimal outlet of polarized visions that serves to maintain
unity among the Jews.122 Whatever the case, in these propositions there is a close and
clear connection between the recognition accorded to Jewish religious institutions
and sectarian Jewish politics.
A deeper look into why the massive recognition of Jewish religious institutions
reveals a strong linkage to Israel’s identity as a Jewish nation state. In his book, The
Judge in a Democracy, Aharon Barak underscores the religious component of Judaism
as part of Israel’s identity as a Jewish state:
A Jewish state is a state in which the values of liberty, Justice, equity and peace of Jewish
heritage are its own. A Jewish state is a state in which its values are absorbed from its religious
tradition, that the Bible is the fundamental of its books, and the prophets of Israel are at the
base of its morals. A Jewish state is a state in which Jewish law is one of its important national
assets. A Jewish state is a state in which the values of the Torah of Israel . . . and Jewish halakha
are of its most fundamental values.123
The same connection was also stressed by Francis Raday: “Israel was established
as a ‘Jewish state’ and this results in a preferred status for Judaism.”124 OrthodoxJudaism is simply the established religion of Israel, is part of its public sphere and thus
has come to dominate the religion and state debate in the country.
There is another important aspect of the religion and state debate as it evolved in
respect of the Jewish community: the existence of a substantial and vocal opposition
to the recognition afforded to Jewish religious institutions, namely to according these
institutions exclusive jurisdiction over matters of marriage and divorce of all Jews
(secular and religious alike), excessive funding of Jewish religious institutions, restricting public transportation during the Sabbath, etc. It thus became common to refer
to the jurisdictional authority granted to Jewish religious institutions as coercive.125
Similarly, the funding of Jewish religious institutions has been seen as excessive and,
121
122
123
124
125
See Haim H. Cohn, Religious Freedom and Religious Coercion in the State of Israel, in ISRAEL AMONG THE
NATIONS, supra note 9, at 79, 80, 91; Lucy Endel Bassli, Note, The Future of Combining Synagogue and State
in Israel: What Have We Learned in the First 50 years?, 22 HOUSTON J. INT’L L. 477, 488, 506 (2000).
See, e.g., CHARLES S. LIEBMAN & ELIEZER DON-YEHIA, CIVIL RELIGION IN ISRAEL: TRADITIONAL JUDAISM AND POLITICAL
CULTURE IN THE JEWISH STATE (1983); ASHER COHEN & BERNARD SUSSER, ISRAEL AND THE POLITICS OF JEWISH IDENTITY
(2000); Asher Maoz, Religious Human Rights in the State of Israel, in RELIGIOUS HUMAN RIGHTS IN GLOBAL
PERSPECTIVE: LEGAL PERSPECTIVE 349, 363 (Johan D. Van der Vyvert & John Witte, Jr. eds., 1996); Ariel
Rosen-Zvi, Freedom of Religion: The Israeli Experience, 46 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTICHES RECHT UND
VÖLKERRECHT 213, 217–218 (1986).
BARAK, supra note 14, at 87–88.
Frances Raday, Religion, Multiculturalism and Equality: The Israeli Case, 25 ISRAEL Y.B. HUM. RHTS. 193, 213
(1995) [hereinafter Religion, Multiculturalism and Equality]. See also Frances Raday, Israel—The Incorporation of Religious Patriarchy in a Modern State, 4 INT’L REV. COMP. PUB. POL’Y 209, 210 (1992); Maoz, supra
note 122, at 369.
EDELMAN, supra note 67, at 60–61.
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by some, even as a form of political blackmail.126 Haim H. Cohn, a preeminent legal
figure in Israel, called the rabbinical jurisdictional authority over matters of marriage
and divorce “a blot on Israel’s democracy.”127 In securing its right to be free from
religion, the Jewish secular community found anchor in Israel’s other constitutional
definition as a democratic state.
As a result, a number of important legal instruments have been constructed over
the years in order to mitigate the clash between Jewish religious norms and practices
on the one hand, and individual freedom, including the freedom from religion, on the
other.128 One major instrument was the recognition accorded to common law marriage under which a couple who effectively live together as a married couple will be
regarded by the law as married, even though their marriage is not recognized under
any of the existing religious communities. Additionally, extensive recognition is also
afforded to civil marriages performed outside of Israel if they are valid under the law
where the marriage took place (lex loci celebrationis).129 In recent years, a document
known as the Gavison-Medan Covenant has been compiled as a Jewish secular–
religious compromise to regulate marriage and divorce among Jews in Israel.130
To sum up, it can be said that the constitutional code of Israel as a Jewish and democratic state is played out in terms of the Jewish majority as follows: while its Jewish values served as an anchor for the recognition granted to Jewish religious institutions, its
values as a democratic state served as an anchor for guaranteeing individual rights of
equal treatment and freedom from religious coercion. The story of religion and state in
respect of the Jewish community was of finding the proper balance between these two
values. The story of the religion and state conflict in respect of the Palestinian-Arab
minority, however, is genuinely different.
2.2 The religion-and-state paradigm and the Palestinian-Arab minority
Religious coercion in Israel is foreign to the recognition accorded to the religious institutions of the different Palestinian-Arab religious communities. This is not because
there are no religious norms applied by Palestinian-Arab religious communities, or
that none of them are illiberal. On the contrary, there are a number of such norms.
It suffices to mention here the Druze and Muslim religious norms that generally
grant the husband the right to unilaterally dissolve the marriage relationship,131 and
126
127
128
129
130
131
See Amir H. Wolfe, Israel Blackmail, CHICAGO TRIBUNE, Nov. 27, 1988, available at http://articles.
chicagotribune . com / 1988 - 11 - 26 / news / 8802200557_1_conservative - and - reform - mr - shamir religious-parties.
HAIM HERMANN COHN, MAVO ISHI: OTOBIYOGRAFIYAH [A PERSONAL INTRODUCTION: AUTOBIOGRAPHY] 242 (2005).
See Rosen-Zvi, supra note 122, at 237–246.
HCJ 2232/03 Plonit v. Regional Rabbinical Court of Tel-Aviv-Jaffa 61(3) PD 496 [2006].
Available at http://www.gavison-medan.org.il/english/.
AHARON LAYISH, MARRIAGE, DIVORCE AND SUCCESSION IN DRUZE FAMILY LAW 150–153 (1982); EDELMAN, supra note
67, at 95–96; Pnina Lahav, The Status of Women in Israel—Myth and Reality, 22 AM. J. COMP. L. 107,
120–122 (1974).
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the Christian religious norm that restricts, and in some communities even totally
denies, the power of a married couple to divorce.132 However, in respect of the
Palestinian-Arab minority, it is generally assumed that the majority within this
community accepts the existing jurisdictional authority and only a minority is
against it.133 In fact, claims are raised for more religious accommodations for the
different Palestinian-Arab communities out of a liberal contention that seeks
more accommodation for the Palestinian-Arab community.134 It is because of
this assumption that the jurisdictional authority granted to the Palestinian-Arab
religious communities is regarded as a form of minority (group) accommodation that is multicultural, pluralistic, and autonomous in nature.135 Thus, if the
Palestinian-Arab religious communities are granted authority giving them power
to adjudicate matters of their members’ personal status, that authority derives from
Israel’s proclaimed democratic norms that seek to accommodate religious diversity
among its non-Jewish religious communities.136 In terms of normative justification,
the religious accommodations for the Palestinian-Arab minority in Israel are a
continuation of the long-standing Ottoman millet system by which minority
religions were tolerated by granting prescriptive and judicial jurisdiction to community institutions over their members.137
A telling piece of evidence in this respect is a report published by the Information
Department of Israel Ministry for Foreign Affairs in 1961.138 This report is evidently a
public relations initiative that sought to document “the efforts made during the past
thirteen years to integrate the Arab population of Israel into the economic, social and
political life of the new State”!139 In a separate chapter on “Religion,” the report takes
special pride in maintaining the jurisdictional authority of the Palestinian-Arab
religious communities:
132
133
134
135
136
137
138
139
Michael Karayanni, Rikoshetim Yehudi’im ve-Demokrati’im [Jewish and Democratic Ricochets] 9
MISHPAT U-MIMSHAL 461, 493 (2006).
Zerach Warhaftig, Ha-Yesh Makom Lehanhig Nisu’in Ezrakhi’im be-Yisrael? [Should Civil Marriage Be
Instituted in the State of Israel?], 7 DINÉ ISRAEL 215, 215 (1977).
See Yousef T. Jabareen, Constitutional Building in Deeply Divided Societies: The Case of the Palestinian-Arab
Minority in Israel, 26 WIS. INT’L L. J. 345, 397 (2008–9).
See Ilan Saban, Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the
Arab-Palestinian Minority in Israel, 36 N.Y.U. J. INT’L L. & POL. 885, 900, 942–948, 954–960 (2004)
(characterizing the religious accommodations granted to the Palestinian-Arab minority in Israel as a
“group-differentiated right” and as a “modest form of self-government”); KRETZMER, supra note 39, at
163–168 (discussing the religious organization of the Palestinian-Arab religious communities under
the heading of “group rights”); see also Itzhak Zamir, Shivyon Zekhuyuot Klappey ha-Aravim be-Yisra’el
[Equality of Rights for Arabs in Israel], 9 MISHPAT U-MIMSHAL 11, 26, 30 (2005) (regarding the jurisdiction of Palestinian-Arab religious communities to adjudicate matters of marriage and divorce as a
group right).
See Graham Walker, The Idea of Nonliberal Constitutionalism, in ETHNICITY AND GROUP RIGHTS 154, 159
(Ian Shapiro & Will Kymlicka eds., 1997).
See Izhak Englard, Law and Religion in Israel, 185 AM. J. COMP. L. 185, 196 (1987).
ISRAELI MINISTRY FOR FOREIGN AFFAIRS, INFORMATION DEPARTMENT, THE ARABS IN ISRAEL (1961).
Id. at 49.
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Conformably with the injunctions of their faith, the law vests in the religious communities
authority in matters of personal status. . . . In fact, the Moslem and Christian religious courts
have jurisdictional powers exceeding those of the Jewish rabbinical courts. . . . This state of
religious judicial autonomy continues to be maintained in Israel; lately, indeed, it has been
extended to the Druze community, and Druze religious courts are now being established. At the
same time, an entirely different process has been taking place in some of the neighboring Arab
countries. In Egypt, for instance, Sharia courts and the courts of other religious communities
were abolished in 1956, and their powers transferred to civil courts.140
Clearly, all of this is said not in order to highlight the coercive and undemocratic
nature of the jurisdiction ascribed to the Palestinian-Arab religious communities and
in the process to compliment Israel’s arch-enemy at the time, Egypt, for abolishing the
jurisdiction of all religious courts there. On the contrary, Israel is taking special pride
in its stance towards the Palestinian-Arab religious communities, in that it is willing
to grant them such wide jurisdictional authority that at the time was even wider than
that accorded to the Jewish rabbinical courts.
So while the jurisdictional authority accorded to the Jewish rabbinical establishment was perceived as a coercive measure and as a “blot on Israel’s democracy,” the
jurisdictional authority accorded to the Palestinian-Arab religious communities was
regarded as the acme of democracy and a form of tolerance. Here is one basic reason
why the religious affairs of the Palestinian-Arab community have been absent from
the religion and state debate in Israel. As mentioned earlier, the parameters set for
the religion and state debate have been those of the conflict between the recognition
accorded to illiberal religious authorities justified by the Jewish nature of the state
and intra-Jewish politics, on the one hand, and Israel’s democratic norms that seek
to guarantee basic liberal rights, on the other. But in respect of the Palestinian-Arab
minority the jurisdiction accorded to their different religious communities is itself perceived as a liberal accommodation rather than a coercive measure. Since the religious
jurisdiction of the Palestinian-Arab community was itself perceived as a liberal concession it lacked the basic ingredient of coercion that defined the Israeli religion and
state debate. Of course, another basic reason for excluding the religious issues of the
Palestinian-Arab community from the Israeli religion-and-state debate is the close
linkage that has been established between recognition of Jewish religious institutions
and norms and the identity of the state of Israel as a Jewish state, which by definition
excludes the Palestinian-Arab religious issues.141
Here lies the conceptual basis for the thick concept of the Palestinian minority’s
group rights in the religious affairs. Since the jurisdictional authority accorded to
the Palestinian-Arab religious communities is itself considered as a form of a liberal
concession on part of Israel, the same authority is regarded as one that is backed
by Israel’s democratic nature as a token of tolerance, multiculturalism, and Israel’s
willingness to be accommodating to its non-Jewish minority.
The upshot of this is the weakening of the individual freedoms of Palestinian-Arab
citizens who seek to be free from the imposition of the religious norms of their
140
141
Id. at 17.
See LIEBMAN & DON-YEHIA, supra note 122, at 12, 161–162.
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respective religious communities—norms that can severely undermine individual
liberal freedoms.142 Indeed, as opposed to the national sphere in which the PalestinianArab citizen is primarily perceived by his individual rights, in the religious sphere the
Palestinian-Arab individual has very little political status “outside the boundaries of
his confessional community.”143 The stronger the concept of group rights of religious
communities, the more vulnerable individuals members become to the encroachment
of religious norms on their personal autonomy.144 Once the state perceives group
accommodation itself as a liberal concession, the liberal values of the state will not
necessarily care for the individuals themselves, but at best be split between the group
and the individual. To exemplify this, I would like to highlight the attitude towards
the Christian community, given the fact that this community has been traditionally
perceived as enjoying the widest autonomy.145
There is no law in Israel that regulates the appointment of judges to any of the
Christian courts. The appointment is totally at the discretion of each of the recognized communities.146 The Christian courts are also free to design their internal
jurisdictional structure.147 What especially helped the Christian communities to maintain their autonomy was Israel’s concern not to upset its relations with the Christian
West.148 But this autonomy took a substantial toll on individual litigants, who had to
litigate their marriage or divorce action before Christian religious courts. What guarantees that the appointed judges are personally qualified to deal with proceedings
before them, and that the rules of procedure and evidence are fairly balanced to permit
a fair hearing? To make the argument more tangible let us examine the case of Jiday v.
President of the Execution Office.149 After the Greek Catholic Melkite Ecclesiastical Court
found a husband liable to pay alimony to his wife, the husband petitioned the Israel
Supreme Court, arguing that the Execution Office cannot execute the judgment because the makeup of the Greek Catholic Melkite Ecclesiastical Court of Appeals is illegal. The husband’s claim was based on the fact that the judges who reviewed his
appeal were appointed by the Greek Catholic Melkite Patriarch in Lebanon—a state
considered to be an enemy state by Israel. The Court denied the husband any remedy,
basing its judgment on the fact that the rules of war do not prevent the state of Israel
from recognizing the authority of the Greek Catholic Melkite Patriarch in Lebanon,
142
143
144
145
146
147
148
149
See JACOBSOHN, supra note 32, at 80.
David M. Neuhaus, Between Quiescence and Arousal: The Political Functions of Religion, A Case Study
of the Arab Minority in Israel: 1948–1990 17 (1991) (unpublished Ph.D. dissertation, The Hebrew
University of Jerusalem).
See Gila Stopler, Countenancing the Oppression of Women: How Liberals Tolerate Religious and Cultural
Practices that Discriminate Against Women, 12 COLUM. J. GENDER & L. 154, 199–200 (2003).
See THE STATE OF ISRAEL, IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR):
COMBINED INITIAL AND FIRST PERIODIC REPORT OF THE STATE OF ISRAEL 227 (1998).
Maoz, supra note 122, at 357.
Aharon M. K. Rabinowicz, Human Rights in Israel, 11 HOWARD L.J. 300, 303–304 (1965).
See ALISA RUBIN PELED, DEBATING ISLAM IN THE JEWISH STATE: THE DEVELOPMENT OF POLICY TOWARD ISLAMIC
INSTITUTIONS IN ISRAEL 7 (2001); LAURENCE LOUËR, TO BE AN ARAB IN ISRAEL 15 (2007).
HCJ 101/54, 9 PD 135 [1955].
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and that the state of Israel, by preserving the existing millets, has also accepted the
existing hierarchical structure of the existing churches.
The Court’s stance in Jiday is admirable in terms of granting freedom to a religious
organization to conduct its internal affairs.150 The situation appears problematic,
however, from the point of view of the individual petitioner seeking judicial assistance to secure the proper administration of authority within his religious community. Assuming, for the sake of argument, that the Greek Catholic Melkite Patriarch in
Lebanon misused his authority, how effective would an administrative review of his
actions by the Israeli Supreme Court be, given that the Patriarch resides in Lebanon?
The judgment to recognize the authority of the Greek Catholic Melkite Patriarch
strengthens the internal structure of the ecclesiastical court system, but diminishes
the power of the individual member of that community when he or she seeks judicial
review from state authorities.
Similar trends were also noticed in respect of the other two major Palestinian-Arab
religious communities. Though the Muslim community was not as fortunate as the
Christian communities in terms of preserving its autonomy, still it was observed that
“the Jewish majority has not been anxious to upset Muslim sensitivities on matters
of personal status.”151 Similarly, the Israeli Supreme Court has worked to expand the
jurisdiction of the Druze religious courts at the same time it was working to restrict the
jurisdiction of the rabbinical courts.152
2.3. The factors contributing to the thick concept of religious group
rights
There are five overlapping factors that have worked with varying force and at
different times to form the thick concept of religious group rights for the PalestinianArab minority. These factors can be divided into two major categories, one working
at the level of the state, and the second at the level of the Palestinian-Arab minority
itself.
(a) The state level
Religious group rights as an offsetting factor
In chapter 2, article 4 of the UN General Assembly Resolution 181 of November
29, 1947, commonly known as the “partition plan” it was provided that in each of
the proposed Arab and Jewish nation states: “The family law and personal status of
the various minorities and their religious interests, including endowments, shall be
150
151
152
See Michael Karayanni, Living in a Group of One’s Own: Normative Implications Related to the Private Nature
of the Religious Accommodations for the Palestinian-Arab Minority in Israel, 6 UCLA J. ISLAMIC & NEAR E.L. 1,
30 (2007).
EDELMAN, supra note 67, at 87.
Karayanni, Living in a Group of One’s Own, supra note 150, 31–35.
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respected.”153 Overall, the partition plan was very careful to offset the basic recognition accorded to each of the proposed nation states by guarantees for the other side’s
national minority that would be living among them. In fact, all of the other articles
in chapter 2 worked to afford additional guarantees to minority members, such as
freedom of conscience,154 that “no discrimination of any kind shall be made between
the inhabitants on the ground of race, religion, language or sex,”155 that each of the
minorities shall be entitled to school education “in its own language and its cultural
traditions,”156 etc. In order to balance the recognition that each state would give to its
own national and religious institutions, it was felt necessary to guarantee some basic
rights for the other group that would be living there as a minority. The existing
religious jurisdictional authority was thus perceived as an appropriate off-setting
accommodation.157 The Israeli Declaration of Independence internalized these principles as it declared that the state of Israel “will guarantee freedom of religion, conscience,
language, education and culture; it will safeguard the Holy places of all religions. . . .”158
It was explicitly noted in this document that the state of Israel undertakes the
obligation to cooperate with the United Nations in order to implement Resolution
181. So when Israel took upon itself to be the Jewish nation state it felt compelled to
maintain the jurisdictional authority accorded to the non-Jewish religious minorities,
especially after it had made considerable concessions to Jewish religious institutions.159
This seems to be an integral normative reflex in a nation state model, especially if the
state seeks to preserve certain liberal ideals.160
Endogamy as a national state interest
Another state interest that worked to maintain the religious divide through a thick
concept of group rights was the state interest of endogamy as a means of preserving
Jewish identity.161 Israel is a non-assimilative state. The state does not seek to create
153
154
155
156
157
158
159
160
161
Partition Plan with Economic Union, annexed to Resolution Adopted on the Report of the Ad Hoc
Committee on the Palestinian Question: Future Government of Palestine, G.A. Res. 181(II), U.N. Doc.
A/RES/181(II) (Nov. 29, 1947), chap. 2, art. 4.
Id. chap. 2, art. 1.
Id. chap. 2, art. 2.
Id. chap. 2, art. 6.
See Barzilai, supra note 70, at 436 (“The state inherited the mandatory colonial recognition of religious
communities or tribes, and has formally respected it so as not to be domestically and internationally
delegitimized.”).
Declaration of the Establishment of the State of Israel, 1 LSI 3 (1948).
Emanuel Marx, Madoa’ Yish BiYisrael Kihilot Datiout Autonomiout? [Why Israel has Autonomous Religious
Communities?], in DAT U-MEDINA BA-MIZRAH HA-TIKHON [RELIGION AND STATE IN THE MIDDLE EAST] 316, 323 (David
Menashri ed., 2006); IYAD ZAHALKA, BATEY HA-DIN HA-SHARIIM: BEIN SHIPPUT LE-ZEHUT [THE SHARI’A COURTS
BETWEEN ADJUDICATION AND IDENTITY] 32, 33 (2009); Neuhaus, supra note 143, at 19.
See Stolzenberg, supra note 76, at 558–559.
See Mark A. Tessler, The Middle East: The Jews in Tunisia and Morocco and Arabs in Israel, in PROTECTION OF
ETHNIC MINORITIES 245, 247 (Robert G. Wirsing ed., 1981); Yüksel Sezgin, The Israeli millet System: Examining Legal Pluralism through the Lens of Nation Building and Human Rights, 43 ISR. L. REV. 631, 632–633,
636–641 (2010).
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one national identity in place of the existing religious national identities—at least
between Jews and non-Jews.162 This interest which, as we shall see in the following
section, is also shared by the Palestinian-Arab minority itself, was perceived as a
national state interest in Israel that seeks to maintain its Jewish identity. Recognizing the group rights of the non-Jewish religious communities helps to highlight
the demarcations between Jews and non-Jews and as a result to better maintain
Jewish identity.163
Religious group rights as an instrument of fragmentation and control
The Palestinian-Arab minority of Israel was perceived as a security threat from the
outset.164 This population not only lost its majority status in what they considered
their homeland,165 but was also an ethnic and national continuation of a nation at
war with the state in which they became citizens.166 Consequently, a number of measures were taken by state authorities with the intention of controlling the PalestinianArab minority, thereby mitigating their perceived threat to state security.167 One such
measure was the military rule imposed on the Palestinian-Arab population for
more than eighteen years (1948–66).168 Another method used was fragmentation—
creating new barriers and strengthening existing ones—within the Palestinian-Arab
minority groups, following the premise that a segmented society could be better
controlled.169 The existing religious divisions within the Palestinian-Arab community
proved to be a sort of natural resource that was easy to exploit in furthering the policy
of control through fragmentation.170 Maintaining the jurisdictional authority of the
Palestinian-Arab religious minorities helps strengthen the internal divisions between
them, which is perfectly aligned with the institutional policy of control through fragmentation. Scholars have observed how the Israeli establishment tended to define the
Palestinian-Arab community as a religious minority rather than a national one—
which was the way Jews were perceived in other Middle Eastern countries in the past,
especially in Tunisia and Morocco.171 By doing this, the state attempted to exclude the
162
163
164
165
166
167
168
169
170
171
LOUËR, supra note 148, at 11.
See Sammy Smooha, The Model of Ethnic Democracy: Israel as a Jewish and Democratic State, 8 NATIONS
& NATIONALISM 475, 485 (2002) (maintaining that religious endogamy as preserved by the religious
communities is one of a number of measures used to preserve Jewish identity).
Barzilai, supra note 70, at 431.
See REITER, supra note 70, at xviii; PERETZ, supra note 25, at 91.
See LIEBMAN & DON-YEHIA, supra note 122, at 165; Rebecca Kook, Dilemmas of Ethnic Minorities in
Democracies: The Effect of Peace on the Palestinians in Israel, 23 POL. & SOC’Y 309, 312 (1995).
See LUSTICK, supra note 37.
Suhaila Haddad et al., Minorities in Containment: The Arabs of Israel, in THE POLITICAL ROLE OF MINORITY GROUPS
IN THE MIDDLE EAST 76, 84 (R.D. McLaurin ed., 1979).
Id. at 80–81; LUSTICK, supra note 37, at 133; Daphne Tsimhoni, Continuity and Change in Communal
Autonomy: The Christian Communal Organizations in Jerusalem 1948–80, 22 MIDDLE EASTERN STUD. 398, 412
(1986).
LOUËR, supra note 148, at 11; KAIS M. FIRRO, THE DRUZES IN THE JEWISH STATE: A BRIEF HISTORY 99–104 (1999).
Tessler, The Identity of Religious Minorities in Non-Secular States, supra note 34, at 359 (1978).
Two conceptsI•CON
of group 10
rights(2012),
for the Palestinian-Arab
332
304–339minority under Israel’s constitutional definition as a “Jewish and democratic” state
29
Palestinian-Arab community as a national group “by framing and co-opting it as a
religious population,” rather than as a national group.172 Terminology is indicative in
this respect. The Palestinian-Arabs in Israel were often referred to in terms of their
religious confessional identity as “Muslim, Christian and Druze”,173 or as “non-Jews”
or the “non-Jewish minorities” in order to also underline “the confessional distinctions
which obscured the national identity of the Arab minority”.174 The thick concept was
thus instrumental to Israel’s self-interests.
(b) The group level
The Palestinian-Arab minority as a non-assimilative and predominantly conservative
society in matters of personal status
As much as the state of Israel does not want to assimilate the Palestinian-Arab minority,
one can safely state that the Palestinian-Arab minority itself does not seek to be assimilated.175 Additionally, in matters of personal status, the Palestinian-Arab minority
is still largely conservative, preferring endogamy to a unified territorial secular
regime that sanctions inter-religious marriage. Therefore, preserving the jurisdictional authority granted to the religious communities in matters of personal status
was regarded as being in the Palestinian-Arab minority’s self-interest as well. Indicative in this respect was the reaction of the different Palestinian-Arab religious communities to the initiative to abolish the millet system altogether after the establishment of
the state of Israel. Once again Haim H. Cohn’s observations are illuminating in this
respect. He testifies that the proposition to abolish the millet system:
. . . aroused, first and foremost, vehement opposition on the part of the Muslims. They argued
that when they had been a large majority and the Jews but a very small minority, they
had willingly conceded to the Jews exclusive jurisdiction of their rabbinical courts in matters
of personal status; now that the Jews had become a small majority and the Muslims a large
minority, how could the Jews render evil for good and deprive them of their vested religious
privileges!176
Evidently, after the founding of the state of Israel the existing religious communal
structure was central to the group identity of the Palestinian-Arab religious communities as well.177 It is important to note in this respect that religious confessionalism,
though taken advantage of by the Israeli establishment, was not invented or created
by it, but was an integral defining characteristic of the Palestinian-Arab community
all along.178
172
173
174
175
176
177
178
See Barzilai, supra note 70, at 427.
Neuhaus, supra note 143, at 20.
Id.
The Arab minority in Israel as a non-assimilating minority; see Tessler, The Middle East: The Jews in Tunisia
and Morocco and Arabs in Israel, supra note 161, at 246.
Cohn, Religious Freedom and Religious Coercion in the State of Israel, supra note 121, at 94.
See Raday, Religion, Multiculturalism and Equality, supra note 124, at 194.
Neuhaus, supra note 143, at 16.
30 30
•CON
I•CON
0 group
(2012),
0 (2012),
36
1Palestinian-Arab
–36
TwoIconcepts
of
rights 1
for–the
minority under Israel’s constitutional defi nition as a “Jewish and democratic” state
333
A basis
A basis
for for
maintaining
maintaining
thethe
existing
existing
power
power
structure
structure
TheThe
Palestinian-Arab
Palestinian-Arab
religious
religious
leadership
leadership
internalized
internalized
thethe
group
group
right
right
perception
perception
with
with
respect
respect
to their
to their
individual
individual
religious
religious
communities
communities
because
because
thisthis
perception
perception
helped
helped
to to
179 179
TheThe
political
political
leadership,
leadership,
on on
thethe
other
other
preserve
preserve
andand
legitimize
legitimize
their
their
power
power
structure.
structure.
180 180
hand,
hand,
contributed
contributed
to the
to the
internalization
internalization
process
process
primarily
primarily
through
through
acquiescence.
acquiescence.
From
From
their
their
point
point
of view,
of view,
challenging
challenging
existing
existing
religious
religious
authority
authority
may
may
leadlead
to internal
to internal
friction
friction
among
among
community
community
members,
members,
which
which
may
may
jeopardize
jeopardize
their
their
political
political
campaign
campaign
181 181
for for
andand
among
among
their
their
constituencies.
constituencies.
All All
of this
of this
should
should
notnot
be taken
be taken
to mean
to mean
thatthat
thethe
state
state
of Israel
of Israel
waswas
altogether
altogether
indifferindifferentent
to the
to the
well-being
well-being
of individual
of individual
Palestinian-Arab
Palestinian-Arab
citizens
citizens
adversely
adversely
affected
affected
by their
by their
group
group
religious
religious
norms.
norms.
Over
Over
thethe
years
years
a number
a number
of measures
of measures
were
were
taken
taken
to safeguard
to safeguard
182 182
TheThe
individual
individual
well-being
well-being
against
against
thethe
encroaching
encroaching
effect
effect
of group
of group
religious
religious
norms.
norms.
Knesset
Knesset
hashas
taken
taken
thethe
following
following
steps:
steps:
183 183
184 184
• • (a) (a)
criminalizing
criminalizing
polygamy,
polygamy,
unilateral
unilateral
divorce,
divorce,
andand
thethe
solemnization
solemnization
of of
185 185
marriage
marriage
of minors
of minors
(under
(under
thethe
ageage
of 17);
of 17);
186 186
• • (b) (b)
guaranteeing
thethe
equal
rights
of women;
guaranteeing
equal
rights
of women;
• • (c) (c)
recognizing
common
lawlaw
marriages,
thereby
offering
individuals
who
recognizing
common
marriages,
thereby
offering
individuals
who
areare
unable
to marry
according
to their
relevant
religious
norms
thethe
unable
to marry
according
to their
relevant
religious
norms
possibility
of instituting
a form
of partnership;
andand
possibility
of instituting
a form
of partnership;
• • (d) (d)
restricting
thethe
exclusive
jurisdiction
of Muslim
Shari‘a
courts
andand
Christian
restricting
exclusive
jurisdiction
of Muslim
Shari‘a
courts
Christian
courts
only
to matters
of marriage
andand
divorce
courts
only
to matters
of marriage
divorce
Additionally,
Additionally,
thethe
Israeli
Israeli
Supreme
Supreme
Court
Court
hashas
rendered
rendered
a number
a number
of important
of important
decisions
decisions
thatthat
sought
sought
to protect
to protect
thethe
individual
individual
Palestinian-Arabs
Palestinian-Arabs
from
from
their
their
religious
religious
TheThe
quesquesjurisdiction.
jurisdiction.
OneOne
noticeable
noticeable
decision
decision
in this
in this
respect
respect
is Sultan
is Sultan
v. Sultan
v. Sultan
.187.187
tiontion
here
here
waswas
whether
whether
a Muslim
a Muslim
wifewife
who
who
waswas
unilaterally
unilaterally
divorced
divorced
by by
herher
Muslim
Muslim
husband
husband
cancan
bring
bring
a civil
a civil
wrong
wrong
claim
claim
for for
damages,
damages,
even
even
though
though
thethe
divorce
divorce
is valid
is valid
under
under
Muslim
Muslim
Shari’a
Shari’a
. The
. The
court
court
recognized
recognized
thethe
claim,
claim,
basing
basing
its its
decision
decision
on on
an an
explicit
explicit
provision
provision
in the
in the
Israel
Israel
Penal
Penal
LawLaw
(1977)
(1977)
(section
(section
181)
181)
thatthat
criminalizes
criminalizes
thethe
actact
of unilateral
of unilateral
divorce,
divorce,
irrespective
irrespective
of the
of the
factfact
thatthat
thethe
relevant
relevant
lawlaw
regarding
regarding
thethe
personal
personal
status
status
of the
of the
parties
parties
recognizes
recognizes
it asitaasvalid
a valid
act.act.
A major
A major
component
component
of the
of the
179
180
181
182
183
184
185
186
187
179
Id
. Id.
180
See
RSee
UTH
RH
UTH
ALPERIN
HALPERIN
-KADDARI
-KADDARI
, WOMEN
, WOMEN
IN ISRAEL
IN ISRAEL
: A S:TATE
A STATE
OF THEIR
OF THEIR
OWNO276–277
WN 276–277
(2004).
(2004).
181
Ran
Ran
Hirschl
Hirschl
& Ayelet
& Ayelet
Shachar,
Shachar,
Constitutional
Constitutional
Transformation,
Transformation,
Gender
Gender
Equality,
Equality,
and Religious/National
and Religious/National
Con-Conflict flinictIsrael:
in Israel:
Tentative
Tentative
Progress
Progress
through
through
the Obstacle
the Obstacle
Course
Course
, in T
, in
HE T
GHE
ENDER
GENDER
OF COF
ONSTITUTIONAL
CONSTITUTIONAL
JURISPRUDENCE
JURISPRUDENCE
205,205,
224–225
224–225
(Beverley
(Beverley
Baines
Baines
& Ruth
& Ruth
Rubio-Marin
Rubio-Marin
eds.,eds.,
2005).
2005).
182
For
For
a general
a general
survey
survey
of the
of the
improvements
improvements
civilcivil
norms
norms
havehave
brought
brought
to Muslim
to Muslim
women
women
in Israel,
in Israel,
see see
LAYISH
LAYISH
, supra
, supra
notenote
131.131.
183
Penal
Penal
Law,Law,
5737-1977,
5737-1977,
art. art.
176,176,
LSI Special
LSI Special
Volume:
Volume:
Penal
Penal
LawLaw
(1977).
(1977).
184
Penal
Penal
Law,Law,
art. art.
181.181.
185
Marriage
Marriage
AgeAge
Law,Law,
5710-1950,
5710-1950,
4 LSI4 158
LSI 158
(1949–50).
(1949–50).
186
Succession
Succession
Law,Law,
5725-1965,
5725-1965,
art. art.
155(c),
155(c),
19 LSI
19 58
LSI(1964–65).
58 (1964–65).
187
CA
245/81,
CA 245/81,
38(3)
38(3)
PD 169
PD 169
[1984].
[1984].
Two conceptsI•CON
of group 10
rights(2012),
for the Palestinian-Arab
334
304–339minority under Israel’s constitutional definition as a “Jewish and democratic” state
31
court’s reasoning was the objective behind the criminalization of unilateral divorce:
to achieve equal treatment of women on an individual basis as well.188
Another important decision is that of Bader (Mari’ee) v. Mari’ee.189 In this decision
the Court reversed the line of a previous holding under which the Druze religious
courts were considered to have exclusive jurisdiction in matrimonial property claims
when raised as an incidental matter to a divorce proceeding. Under the new holding,
for such an incidental jurisdiction to exist there needs to be an explicit provision in the
law, which the current law does not have.
Probably the most eloquent decision in this line of precedents is Plonit v. Ploni.190
Here, a Muslim mother and her daughter were successful in challenging the exclusive jurisdiction of the Muslim Shari’a court over declarations of paternity between
Muslims in Israel. The principal opinion of the Court, written by Justice Mishael
Cheshin, is a forceful liberal manifesto concerned with the individual well-being of
the child, giving it preference over the judicial autonomy of the Muslim Shari‘a court.
Justice Cheshin meticulously navigated the obscure statutory schemes to conclude
that no intention can be assumed that the Shari‘a court was granted exclusive jurisdiction to deal with a paternity action or with a maintenance allowance action
on behalf a child, where the Shari‘a court would summarily dismiss the action the
moment it is presented with it. In his concluding remarks Cheshin stated his satisfaction in being able to pave the way for “this little one. . . .” In his characteristically ornate style he added that “the call has come, and now we all know that our
concern—the concern of the [civil] courts in Israel—is the benefit, the welfare and the
happiness of the individual.”
On the basis of these developments one can justifiably question whether the thick
concept, as identified above, is really thick after all, at least today as opposed to the
past. Both the Knesset and the Israeli Supreme Court have seemingly made an impressive effort to safeguard individuals, including the Palestinian-Arab citizens, against
illiberal norms in their respective religious communities.
I would like to clarify that the existence of a thick concept of group rights does not
make the group right of the Palestinian-Arab religious communities an absolute concept. The concept leaves room for liberal guarantees to be applied through Israel’s
democratic constitutional values but only to an extent.
This aside, I am still convinced of the existence of the thick concept in light of the
picture one receives from how the safeguards were actually applied rather than their
mere existence as a norm on the books.191 Studies were conducted, for example, on the
effectiveness of the restrictions on the age of marriage among the Palestinian-Arab
188
189
190
191
Id. at 176.
HCJ 9611/00, 58(4) PD 256 [2004].
CA 3077/90 Plonit v. Ploni 49(2) PD 578 [1995].
See Zeina Ghandour, Religious Law in a Secular State: The Jurisdiction of the Shari’a Courts of Palestine and
Israel, 5 ARAB L.Q. 25, 31–32 (1990).
32
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0 (2012),
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–36
Two concepts
of group
rights for the
minority under Israel’s constitutional defi nition as a “Jewish and democratic” state
335
Muslim community. The conclusion of these studies was that enforcement by the
authorities was minimal and courts were lenient in their sentencing,192 if and
when indictments were ever filed.193 When the number of marriages of under-age
girls eventually decreased, this was attributed to changing social norms rather
than to criminal prohibition. Similar conclusions were reached in the case of
polygamy,194 which is still widely practiced in the Bedouin community in southern
Israel.195 Further, the intervention by the Knesset did not directly deal with the
validity of polygamous marriage; criminal prosecution was minimal, sentences
lenient, and the decline in such marriages was due to the changing social values
than due to criminal liability.196
At times, the problem with not effectuating equitable norms and policies is
not so much the passivity of law enforcement authorities but that of courts that
would rather allow patriarchal norms within the Palestinian-Arab community
to persist. For example, one of the long-standing hallmarks of the patriarchal
nature of the Palestinian-Arab community is women’s renunciation of their inheritance rights in favor of the male heirs in the family.197 Thus, even if female and male
heirs in the family are entitled to equal shares of an inheritance, the women often give
up their share. Though women probably do so as a result of social pressure and their
inferior status in a patriarchal society, courts have not been forthcoming in helping
such women to secure their rights as heirs.198
Probably the boldest move in favor of Palestinian-Arab women individual rights
was the amendment to the Family Court Law in 2000 whereby the exclusive jurisdiction of the Muslim Shari’a courts and Christian religious courts was confined to matters of marriage and divorce only. This in turn afforded Palestinian-Arab Muslim and
Christian women the option of filing their alimony claims before the Court for Family
Affairs rather than solely before their respective religious courts, as was the case until
this amendment. It is generally believed that granting such an option improves the
status of women given the general tendency of civil courts to be more supportive and
understanding than religious courts of women’s claims.199 Even if this assumption is
192
193
194
195
196
197
198
199
Alisa Rubin Peled, Shari’a under Challenge: The Political History of Islamic Legal Institutions in Israel, 63
MIDDLE EAST JOURNAL 241, 259 (2009).
See ROBERT H. EISENMAN, ISLAMIC LAW IN PALESTINE AND ISRAEL: A HISTORY OF THE SURVIVAL OF TANZIMAT AND SHARI’A
IN THE BRITISH MANDATE AND THE JEWISH STATE 171–177 (1978).
Id. at 178–186.
See Rubin Peled, supra note 192, at 251 (stating how in practice the Bedouin community found many
ways to circumvent the restriction on under-age marriage and polygamous marriages).
ANAT LAPIDOT-FIRILLA & RONNY ELHADAD, FORBIDDEN YET PRACTICED: POLYGAMY AND THE CYCLICAL MAKING OF ISRAELI
POLICY (2006); Rubin Peled, supra note 192, at 259.
See Haim Sandberg & Adam Hofri, Arab Israeli Women’s Renunciation of their Inheritance Shares: A
Challenge for Israel’s Courts, INT’L J. L. IN CONTEXT (forthcoming 2011).
Id. at 223. For an anthropological analysis of the phenomenon in the Palestinian-Arab society in
general, see ANNELIES MOORS, WOMEN, PROPERTY AND ISLAM, PALESTINIAN EXPERIENCES 1920–1990 48–76
(1995).
Id.
Two conceptsI•CON
of group 10
rights(2012),
for the Palestinian-Arab
336
304–339minority under Israel’s constitutional definition as a “Jewish and democratic” state
33
true,200 it should be borne in mind that the same option was granted to Jewish women
already in 1953, with the enactment of Rabbinical Jurisdiction (Marriage and
Divorce) Law.201 What accounts for this forty-seven-year delay in the equalization of
the religious courts, the major normative obstacle identified here? When it comes to
the Palestinian-Arab religious groups, the group comes first and the individual second.
To reconnect this discussion to the constitutional values of Israel as a Jewish and
democratic state I can state the following: while Israel’s Jewish values support the
group rights concept for the Palestinian-Arab religious groups, the democratic values come out split—with one component supporting the group rights concept and
the other component supporting individual rights against the encroachment of religious jurisdiction. The most significant result is that while in of the Jewish community, Israel’s democratic values will push in full force in order to safeguard individual
liberties against religious jurisdiction, this same value pushes at best only partially in
this direction when it comes to Palestinian-Arab individuals. As already indicated,
another portion of Israel’s democratic values backs the principle of group autonomy
of Palestinian-Arab religious communities.
2.4. The strategic normative significance of the thin and thick concepts
of group rights
The major significance of identifying these two concepts of group rights is that they
enable us better to understand the present status of the Palestinian-Arab minority in
Israel, at least in terms of their status as a single national group, in contrast to their
status as a cluster of religious groups. Other than that, this identification can aid in
contemplating strategies of change and reform. The thin concept of group rights in
the sphere of the Palestinian-Arab minority as a national group implies that there
is a considerable barrier to successful legislation or litigation when arguing in the
name of the Palestinian-Arab minority as a national group. It seems that the existing
constitutional structure even actively legitimizes the thinness of the Palestinian-Arab
group rights in Israel. Therefore, in the sphere of national group rights it might be
more beneficial to bring legal action in the name of individual members seeking recognition of their individual rights rather than group based claims. What can prove
to be instrumental in adopting this strategy is the relatively rich literature on liberal
multiculturalism which provides that group rights for minorities are essentially legitimized in that they seek to serve first and foremost the individual members of such
groups.202 The protections afforded to minority groups are made in the name of
individual group members, for without such protection individuals will be less able to
200
201
202
Though some doubts were raised earlier as to whether this amendment will indeed improve the
status Muslim and Christian women. See Karayanni, Living in a Group of One’s Own, supra note 150,
at 44.
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952–53), art. 4.
Joseph Raz, Multiculturalism: A Liberal Perspective, 41 DISSENT 67 (1994).
34
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0 (2012),
1Palestinian-Arab
–36
Two concepts
of group
rights for the
minority under Israel’s constitutional defi nition as a “Jewish and democratic” state
337
be autonomous as individuals.203 Disregard for one’s culture can thus infringe upon
an individual’s capacity to be an autonomous individual. Coming back to the Adalah
decision on the obligation to add Arabic inscription on road signs, the petition could
have been filed in the name of individual Palestinian-Arab residents in each of these
municipalities who in turn can argue that their personal right to equal treatment
and respect has been infringed.204 Disregard of minority language is a violation of
the fundamental human rights of individuals,205 since individuals are entitled to the
freedom of language as part of their freedom of speech.206 To further exemplify this
point one can refer to the case of Re’em Engineers v. Municipality of Upper Nazareth.207
A development company asked for permission to post notices in Arabic for Arab
citizens living in Upper Nazareth where it sought to advertise its housing projects in
a neighboring Palestinian-Arab village. According to the municipal by-laws of Upper
Nazareth, notices on city billboards are to be posted in Hebrew, or in Hebrew and
another language as long as Hebrew occupies at least two thirds of the notice’s space
and the Hebrew title’s letters are on top and are larger than those in the other
language. Given these by-laws, the development company was refused permission
to post its all-Arabic advertisement notices on the billboards in Upper Nazareth.
Consequently, the development company filed a civil action before the District Court
of Nazareth asking for injunction relief ordering the municipality to permit the posting
of its all-Arabic notices. The District Court dismissed the claim, but its judgment was
reversed on appeal and the development company ultimately prevailed. Even though
the Supreme Court acknowledged the special status of Hebrew in Israel, it recognized
the development company’s right to post notices in Arabic as part of its freedom of
speech. The court stressed that self-fulfillment is intrinsically tied with the ability to
use language in order to express oneself. Language is also connected to one’s way of
thinking and thus is also part of a person’s dignity. After discussing and evaluating
the conflict between the need to accord Hebrew a special status and the claimant’s
freedom of speech, the Court preferred the development company’s freedom of speech.
This decision clearly demonstrates how a right generally taken to be a group right can
be reduced to an individual right.
Given the thick concept of religious group rights on the other hand, it would seem
hard to push for reforms within the Palestinian-Arab religious communities, if these
reforms seek to diminish the encroachment of religious norms on individual members. Against the interests of individuals will always stand the interests of the community as a group, and the Jewish character of the state as well as a significant portion
203
204
205
206
207
See Carol C. Gould, Group Rights and Social Ontology, in GROUPS AND GROUP RIGHTS 43, 48 (Christine Sistare
et al. eds., 2001).
See Yuval Merin, The Case Against Official Monolingualism: The Idiosyncrasies of Minority Language Rights in
Israel and the United States, 6 ILSA J. INT’L & COMP. L. 1, 36 (1999).
Id. at 24.
Id. at 36.
CA 105/92, 47(5) PD 189 [1993].
Two conceptsI•CON
of group 10
rights(2012),
for the Palestinian-Arab
338
304–339minority under Israel’s constitutional definition as a “Jewish and democratic” state
35
of Israel’s democratic values support the interests of the Palestinian-Arab religious
community rather than the interests of the Palestinian-Arab individual apart from
the religious community. If one adds to this that the Palestinian-Arab community is
still patriarchal in nature and is in a permanent state of conflict with the state and its
Jewish hegemonic majority, it is not surprising that reform movements from within
are also silenced.208
However, if enough intra-group power is galvanized and is ready to push for liberal
reform, the prospects for success are relatively high. The initiative would be aligned
with the institutional perception under which the religious jurisdiction accorded to
the Palestinian-Arab religious communities is a form of group accommodation.
Concerns about the stability of a government coalition or the unity of this or that
Palestinian-Arab religious community is not a consideration for the dominant Israeli
political establishment as is the case when liberal reforms are suggested within the
Jewish religious community. A prominent example in this respect is the Druze family
law as applied by the Druze religious courts in Israel. By and large this body of law was
taken from the Druze family law of Lebanon and considered to be relatively liberal.
The law bans polygamy, it instructs the husband to treat his wife in an egalitarian
manner, and offers the husband’s adultery as cause for divorce.209 No particular reservations from Israel’s political establishment are recorded against this body of religious
norms. Once the community sought it, it received it. Partial evidence also exists in the
Knesset enactment of the 1950s in which certain religious practices were criminalized,
such as in the case of the marriage of minors, polygamy and unilateral divorce, there
is sufficient group backing for reform as well. At the time, it was stressed that similar
reforms were taking place in Arab countries in the Middle East.210 Additionally, the
resolution of criminalizing certain religiously sanctioned actions, such as under-age
marriage, rather than voiding the act altogether, was devised in a Shari’a court qaddis
that convened back in 1950—a resolution that served as a guiding principle
in the enactments that were ordained shortly afterwards.211 Once again, then, if an
internal initiative for liberalizing a Palestinian-Arab communities’ family law is
present, precisely the constitutional definition of Israel as a Jewish and democratic
state will guarantee success. Given the fact that these reforms are solely concerned
with the particular Palestinian-Arab religious community, Jewish interests are by
definition neutralized, and given the fact the reform is group-based and liberal in
nature, Israel’s democratic norms are also satisfied.
208
209
210
211
See Ran Hirschl & Ayelet Shachar, supra note 181, at 224–226.
Aharon Layish & Salman H. Fallah, Ha-Irgun ha-A’dati shel ha-Druzim [Communal Organization of the
Druzes], in HA-ARAVIM BE-YISRAEL: RITSIFUT VE-TMURA [THE ARABS IN ISRAEL: CONTINUITY AND CHANGE] 123,
134-35 (Aharon Layish ed., 1981).
EISENMAN, supra note 193, at 178.
See Rubin Peled, supra note 192, at 249.
36
I•CON
0 (2012),
1Palestinian-Arab
–36
Two concepts
of group
rights for the
minority under Israel’s constitutional defi nition as a “Jewish and democratic” state
339
3. Conclusion
This article attempts to reveal the legal substance of the group right concept as it
relates to the Palestinian-Arab minority under Israel’s constitutional definition as
a Jewish and democratic state. The analysis provides a dichotomy in the concept:
one governing concept when it comes to the national rights of the Palestinian-Arab
minority as a single national group and another governing concept when it comes
to the Palestinian-Arab minority as a cluster of religious groups. This is a descriptive
thesis. Yet as I argue towards the end, the descriptive thesis can be instrumental in
exposing the limits and opportunities for bringing change to the status of the PalestinianArab minority under Israel’s current constitutional conditions.