Israel and the Zionist project have always been judged according to their morality. Their opponents present them as immoral and racist, while their advocates portray them as the manifestation of the morality of humankind.1 This assessment has direct implications for internal and international political relations. Whether one argues that a Jewish state in Palestine necessarily violates the moral rights of indigenous Palestinians or that the IDF (Israel Defense Forces) is the most moral army in the world, these views cannot be separated from the ongoing conflict between Israelis and Palestinians. The goal of this article, however, is not simply to appraise the morality of Israeli citizenship, but to present and analyze the effect of ethical considerations on the construction of the citizenship laws in Israel. I endeavor to illustrate the relationship between pragmatic calculations and ethical judgments as legislators deliberated on the formulation of the citizenship laws.
Citizenship scholars usually connect the rules related to immigration and naturalization with the normative perception of citizenship in each country. In this article I reflect on those laws in Israel. Essentially, I compare the two main laws in Israel that regulate newcomers and their citizenship status—the Law of Return (1950) and the Citizenship Law (1952). I open with a literature review that provides viable conceptual distinctions with which to work on the case studies. Next, I present the actual assessment process and methodology that determined the various justifications postulated for citizenship laws in Israel. Lastly, I provide a complex analysis of the tensions between the justifications for the amendments, the actual content of the laws, and the normative conflicts it exposed.
A wide range of academic works have been undertaken to study and analyze Israel citizenship laws. However, most of them focus their attention on the Law of Return (1950) (e.g., Carmi 2003, 2006; Gans 1995, 2006; Gavison 2010; Kasher 1985; Klein 1997; Lapidoth 1986; McGonigle and Herman 2015; Perez 2011; Rubinstein and Yakobson 2009; Weiss 2002; Zreik 2008). The Citizenship Law (1952) is usually ignored or presented as equivalent to the Law of Return.2 In this article I seek to contribute to the study of Israeli citizenship law by filling this lacuna.
The Ethics of Citizenship
The dominance of the national world order in the twentieth century established that possessing and acquiring citizenship was the main path to obtaining rights, both practically and theoretically. Although this world order began to crystallize in the eighteenth century, its implementation reached its peak only two centuries later. This ideal positions the nationstate as the most important factor in providing a large range of privileges for its citizens. The lack of citizenship signifies extreme political exclusion, not only from a specific nation-state, but from the national world order at large (Agamben 1998; Arendt 1973; Bauman 2004).
The national logic divides the whole world into states separated by boundaries. The Western geopolitical imagination endows territorial demarcation with normative significance: the border marks the sovereignty of each nation-state because the state, the nation, and the border supposedly coincide naturally. The border is also socially significant, creating a dichotomy between the social groups in every nation and thus between ‘us’ and ‘them’ (Kemp 1999).
The myth of a tight fit between the perceived ethnic, religious, cultural, and political borders of nationality and the territorial borders of the nation-state has always been challenged by population movement and conflicting citizenship laws. However, the centrality of the nation-state creates a paradox. Although there is no state in existence in which the four elements precisely overlap, most people perceive the world as divided into nation-states. Hence, as a subjective cultural frame, nationalism still provides a political formula for organizing the world (Herzog 2009).
Arendt (1973) argues that, since the nineteenth century, human rights have been exclusively associated with political rights and citizenships. Humans are not equal in their humanness, but rather become equal citizens with the guarantee of the modern state. Citizenship is the legal manifestation of the national logic that has divided the world into separable social communities. This bureaucratic measure has profound implications, both morally and practically, in shaping the realities of our world.
Since its emergence, nationalism (and citizenship), as an order-building project, has been viewed as morally ambiguous. On the one hand, as history has shown, nationalism, and specifically ethno-nationalism, has led to some of the most violent events on record and to extreme inequalities. On the other hand, it has represented an ideological stance that can free humanity from premodern chains and can advance natural liberties and self-representation. Although the national logic divides people into multiple ethnic, cultural, and social groups, the ideal of nationalism implied universal equality, for all nations were (theoretically) presumed to have equal standing.
Citizenship is usually defined (with some variations) as “both a set of practices … and a bundle of rights and duties … that define an individual’s membership in a polity” (Isin and Wood 1999: 4). However, defining citizenship as an analytical concept is a presumptuous task for two reasons. First, its definition is highly contested and has competing, if not contradictory, meanings (D. Smith 2004). Its conceptualizations range from a purely legal/bureaucratic term to a status indicator, a form of identity, and a set of practices.3 Second, this concept is constantly changing and will probably change in the future (Turner 1990). Citizenship in its varying forms is contingent on historical struggles and conflicts and has been contested by various political organizations, regarding both access to it and the type of privileges and obligations it entails.
Each of those perspectives of citizenship has a practical and an ethical component. Those elements are neither independent nor mutually exclusive. Citizenship as a bundle of rights can refer to the pragmatic list of privileges and obligations such as the specific combination of civil, political, social, and cultural rights guaranteed to the citizen alongside those duties demanded of him or her. However, it also suggests an ethical judgment as to the normative value and magnitude of these rights. In the same manner, citizenship, as a set of practices, is a technical array of citizenship acts that citizens in a particular country have to perform, but it also serves as a way of distinguishing between ‘good’ and ‘bad’ citizens. In this article I present both perspectives regarding citizenship in Israel.
When assessing citizenship, we can present this status as all-encompassing so that it includes all the rules with respect to the behavior and identity of citizens in each country, or we can limit our study to specific laws that are explicitly named citizenship laws—usually those that regulate the entrance to the polity. In this article, I employ the latter perspective and focus my attention on Israeli citizenship laws and their divergent interpretations, amendments, and implementations as indicators of moral conceptions of nationality in Israel.
The common denominator of many recent studies on citizenship is the articulation of immigration and naturalization processes as signifiers of the conception of citizenship and nationhood in a particular country (Brubaker 1992; Joppke 1999; Joppke and Rosenhek 2001; R. Smith 1997; Weil 2008, 2013). That is, the regulations governing entry into the national community and the inclusion of new members in it are dependent on the understanding of who, in the first place, should belong to the national ‘we’. Although citizenship and immigration policy are not the same thing, immigration policies are usually derived from the perception of citizenship in each country. Moreover, one of the main methods of investigating citizenship empirically is by looking at who can become a citizen through immigration. As Walzer (1983: 62) puts it: “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination.” Determining who becomes a member is the state’s way of shaping and defining the national community.
Both the scholarly and the general public’s interpretations of the notion of citizenship assume that citizenship depicts a different type of relationship with the state than that of ‘subjects’ or ‘members’. While a subject is perceived as a passive subordinate person without rights, and a member usually implies a conscious voluntary association, citizenship includes both obligations and privileges in relation to the state. Thus, compared to the status of subjects, all citizens can be seen as morally superior.
I am fully aware that the distinction between subject and citizen is not unequivocal, both historically and analytically. In his Social Contract of 1762, Rousseau (1997) distinguished between citizens as self-governing people and subjects as people bound by the laws of the state. However, linguistically, many times the two terms have been used interchangeably. In France’s ancien régime, for example, the term ‘citizens’ was used to refer to the subjects of the king. Analytically, it has to be argued that the conceptual distinction between subjects and citizens is questionable, as citizenship is a modern technique of constituting, regulating, and governing subjects (Cruikshank 1999). In the Israeli case, the differentiation between citizens and subjects is mainly relevant to the ethical dilemmas that are connected with the Israeli control of the Palestinians in the West Bank and the Gaza Strip.
It is important to remember that citizenship laws do not change easily. In his path-breaking study,Rogers Brubaker (1992) proposes a theory of citizenship as a coherent and stable worldview.4 While Brubaker’s conception of citizenship and nationhood is theoretically contingent on historical circumstances, in reality it is deeply rooted in national self-perception (which is reinforced by its institutionalization in immigration policies) and thus is unlikely to change. This viewpoint is shared by many in both the academic community and the general public.5 Thus, citizenship laws are not direct indicators of moral shifts in each country. In most cases, unless there are extreme transformations,6 the principal logic of the citizenship regime in each country remains stable. Therefore, in order to trace the marginal effect of ethics on citizenship policy, we should focus our attention on either the construction of new citizenship laws or on their amendment.
Rogers Smith (1997) expands upon Brubaker’s original arguments and argues that there are three conceptions of citizenship that can—and usually do—co-exist in the same modern polity. He asserts that liberalism, republicanism, and ‘ascriptive inegalitarianism’ can be expressed simultaneously “in logically inconsistent but politically effective combinations” (ibid.: 470). Adopting this useful distinction enables me to analyze the meaning of Israeli citizenship as multi-dimensional rather than simply dichotomous (citizens/non-citizens).
The liberal tradition of citizenship emphasizes the rights of citizens. Liberal citizenship is thus usually instituted in a political system that strongly emphasizes the individual and his or her capacity to transcend groups or other collective identities. Legal and civil rights are conferred regardless of (or at least have primacy over) the few obligations required of the citizen. When fully developed and implemented, liberal citizenship embodies the idea of equal rights for all citizens (Beiner 1995; Janoski 1998; Miller 2000) and automatic acquisition of citizenship upon birth in the country’s territory (jus soli). The liberal tradition of citizenship has dominated the West for about two centuries but is now being challenged by other political philosophies that question the individualist conception at the heart of the liberal theory of citizenship (Shafir and Peled 2002).
The civic ideal of republicanism rests on the assumption that an institution such as citizenship must rely on a meaningful human community. To form such a community, republicanism preaches an ethos of civic virtue, economic regulation, and active participation in advancing the common good (as understood by the state). Rousseau’s (1997: 50–51) notion of ‘general will’ reflects one of the early modern expositions of the republican idea: “Each of us puts his person and his full power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole. At once, in place of the private person of each contracting party, this act of association produces a moral and collective body [that] formerly assumed the name City and now assumes that of Republic.”
The third tradition, ‘ascriptive inegalitarianism’ or ethnic citizenship, also relies on the presence of a meaningful human community. However, in contrast to republicanism, this national community is understood as a pre-political community with a shared language, shared associations, a shared history, a common culture, and cohesive institutions. According to this tradition, national identity is based on descent (jus sanguinis) and therefore promotes the superiority of the origins of the current rulers and their heirs. In the Israeli case, such ethnic citizenship manifests as the hegemonic perception that Israel should be a Jewish state.
The three civic ideals—liberal, republican, and ethnic—can be treated as the ethical foundations of citizenship. That is, these traditions signify the normative basis for different approaches to the construction of immigration and naturalization laws. In order to assess the shifts in the ethics of Israeli citizenship, in the next section I analyze the ethical justifications for the amendments to those laws. This exploration enables me to present changes both in the two laws and in Israeli society between the 1950s and the beginning of the twenty-first century.
The Law of Return (1950) and the Citizenship Law (1952)
According to the ethnic principle of the Israeli state, the Law of Return (1950) explicitly refers only to the right of Jews, regardless of their specific situation, to immigrate to Israel, but it does not confer citizenship. In the vein of the central Zionist goal of encouraging Jewish immigration to Israel/Palestine, Article 1 of the law states the principle of return decisively and explicitly: “Every Jew has the right to come to his country as an oleh [Jewish immigrant].”
In many senses, the Law of Return signifies the ethical foundation of the State of Israel. The Zionists believed that a full Jewish existence could not be possible in the Diaspora. Thus, an important goal of the Jewish state should be to serve as a place of refuge for Jews who wished to become a part of it. This was especially significant after the Holocaust and the refusal of the then British Mandate to permit open immigration into Israel/Palestine (Gavison 2010) and for the symbolic ties between Israel and the Jewish Diaspora (Hacohen 1998). As articulated by David Ben-Gurion, Israel’s first prime minister, during Knesset debates: “The Law of Return is one of the State of Israel’s basic laws. It encompasses the central mission of our country, the ingathering of exiles. This law determines that it is not the state which accords the Jews of the Diaspora the right to settle here, but that this right belongs to every Jew by virtue of the fact that he is Jewish.”7
MK Zerach Warhaftig (1988) of the United Religious Front, who was intensely involved in the formulation of the Law of Return, maintained that there were 17 drafts of the law before its final version. However, the government ascribed to the Law of Return a ceremonial significance and passed the bill unanimously, without any debate, and in an unprecedentedly short time (two days) to ensure that it would be enacted on the anniversary of the death of the visionary of the Jewish state, Theodor (Binyamin Ze’ev) Herzl (Herzog 2010).
Thus, in the Knesset at least, the law was purely an ethical act. One can think of many pragmatic implications of the law: its lack of ability to select the desired immigrants, future implications for the Jewish Diaspora around the world, international relations (especially with regard to the Palestinians), the cost of this act, and the ability of the new state to absorb the new olim. However, none of these issues was raised during the discussions leading to the enactment of the law.
Despite the celebratory, normative, and historic foundations of the Law of Return and the broad and symbolic definition in its first article, the law did somewhat limit the eligibility for all Jews to make aliyah. Not only did it require the immigrant to acquire a visa as an oleh, but it also provided that the minister of immigration could deny the application if the applicant was engaged in an activity directed against the Jewish people or was likely to endanger public health or the security of the state. In the first amendment to the law in 1954,8 another condition was added: if a person had a criminal past or was likely to endanger public welfare, he could also be banned from making aliyah.
One of the central academic and public debates regarding the Law of Return is connected to the ethical standing of the law. On the one hand, there are those who maintain that it is tainted with racism, due to its ethnically based preference with regard to immigration. For example, Kimmerling (2001: 101) argues that “hidden political and social inequalities underlie the Law of Return,” and therefore it is a central obstacle to the transformation of Israel into a properly functioning democracy. On the other hand, many scholars claim that the law can be defended from the point of view of liberal and democratic standards. The Law of Return does not discriminate between citizens within the country. Following the right of self-determination, in international law a sovereign state has very broad scope for establishing and maintaining its policies of immigration and acquisition of citizenship by immigration. The scholarly debates represent the fundamental fact that “while for the majority of Jewish Israelis the Law of Return is part of the Zionist project providing the protection of the Jewish state, for the Arab citizens of Israel its exclusionary character is perceived as discriminatory and unfair” (Ben-Porat and Turner 2011: 11).
In contrast to the consensus on the Law of Return, deliberations on the Citizenship Law (1952) in the Knesset plenum and in the subcommittee of the Constitution, Law, and Justice Committee were extensive. The committee held 19 meetings in the 1st Knesset, between 8 August 1950 and 22 May 1951, and 14 meetings in the 2nd Knesset, between 5 December 1951 and 27 March 1952. These debates raised both ethical and practical reasons for the drafting of this law. There is no explanatory memorandum accompanying the bill.
The first part of the law describes the different routes for acquiring Israel citizenship. The first section restates the ethnic principle of the Law of Return—that any Jew who immigrates to or lives in Israel automatically becomes an Israeli citizen. The next provisions cover the granting of citizenship (but not automatically) according to other moral principles: citizenship is granted to permanent residents (i.e., Palestinians) who lived within the territory of Israel before and after its establishment; citizenship is established upon birth (jus soli) within the state’s boundaries (as long as one of the parents is an Israeli citizen); and the naturalization process requires residence, active participation, and cultural assimilation. The second part of the Citizenship Law (1952) deals with revocation of citizenship (Herzog 2017).
Since the enactment of these laws, the Knesset has revisited and amended the Law of Return (1950) twice and the Citizenship Law (1952) thirteen times, and complementary laws have been added. One hundred seventy-five more amendments have been considered by the Knesset, with some still under discussion. The main amendments do not evidence a transformation in the ethnic perspective of the Jewish state, but they do reflect social shifts in Israeli society.
One of the challenges raised by the Law of Return has to do with the thorny question of defining ‘who is a Jew’, especially as the original 1950 formulation of the law did not provide a definition or include any explicit criteria. During the 1960s, this ambiguity was challenged in court. The first case, resolved in 1962, concerns Oswald Rufeisen, known as Brother Daniel, a Polish Jew who converted to Catholicism during the Holocaust. When he sought Israeli citizenship according to the Law of Return, he was refused on the grounds that, following his conversion, he could no longer be considered Jewish. The Supreme Court upheld that decision. A second challenge came in 1968: Benjamin Shalit, an Israeli naval officer who married a non-Jewish Scottish woman, sought to register his children’s nationality as Jewish in the population registry. Following the state’s refusal, Shalit appealed to the Supreme Court, which ruled that he should be allowed to register his children as Jewish on the basis of his subjective selfidentification (Gavison 2010; Shachar 1998).
In response to these rulings by the Supreme Court, the Knesset in 1970 passed the most significant and well-known amendment to the Law of Return.9 For the first time, Israel articulated definitively ‘who is a Jew’ and officially distinguished between the Jewish nation and the Jewish religion. Namely, in section 4B, it is explicitly stated that “for the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has been converted to Judaism and who is not a member of another religion.” In addition, section 4A states that “the rights of a Jew under this Law and the rights of an oleh under the Nationality Law (5712-1952), as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew, and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.” The second amendment treats children and grandchildren of Jewish men as entitled to aliyah, although they are not considered Jewish under Halakhah (Jewish religious law). This change is regarded as the first time that the Knesset passed a law (known in Hebrew as okef bagatz) circumventing the High Court of Justice (HCJ). Thus, the amendment had substantial symbolic and actual implication for Israeli society (Gavison 2010; Lustick 1999; Shafir and Peled 2002). Most notably, it eventually enabled the immigration of about 350,000 persons not recognized as Jewish by Halakhah from the former Soviet Union (Weiss 2002).
The Citizenship Law, on the other hand, has been amended several times since 1952. Several of the changes were technical and involved only procedural adjustments. For example, Amendment 1 (1952) declared that a request for the renunciation of Israeli citizenship is not limited to citizens who are abroad. Amendment 3 (1971) stated that a Jew can express his intention to make aliyah before coming to Israel (and not just after immigration). Amendment 4 (1980) made it possible for Jewish parents to make a different decision for themselves and for their children with regard to not becoming Israeli after aliyah. In addition, the Knesset extended the period in which a child could overturn this decision from the age of 21 to 22. Amendments 5 (1987) and 8 (2004) enlarged the number of waivers that a non-Jew—him/herself or one of his/her immediate relatives—who enlists into the IDF can have before being naturalized. All of these changes do not reflect a philosophical shift in immigration or naturalization policies but rather slightly amend them to solve particular difficulties in the existing rules.
The second group of amendments is connected to social changes and shifts in cultural attitudes in Israel. By the end of the twentieth century, the adoption of non-Jewish children by Israeli parents became legitimate and accessible. Amendment 6 provided that those children, who are not entitled to Israeli citizenship according to the Law of Return or through birth to Israeli parents in Israeli territory, are nonetheless automatically granted Israeli citizenship.
Lastly, there are amendments that are connected to the changing security threats in Israel, particularly with regard to terrorism. Amendments 9 (2008), 10 (2011), 12 (2016), and 13 (2017) attempt to define the conditions for the expatriation of terrorists who are Israeli citizens.
The investigation of Israeli citizenship should be placed in the general context of immigration and naturalization procedures around the world. Although all regulations may have normative underpinnings, citizenship laws have traditionally symbolized the most fundamental ethical orientation of the nation-state. In the rest of this article, I analyze the tensions between the justifications for the amendments, the actual content of the laws, and the normative conflicts they expose.
Ethical Considerations in Israeli Citizenship Laws
The debates regarding these laws illustrate various civic concerns, both pragmatic and ethical, regarding Israeli citizenship. The deliberations in the special subcommittee that considers them present complex viewpoints that conflate the expected concerns over the Jewish identity of the state with many unexpected dilemmas and controversies over the nature of the relationship between the individual and the new state. During the1950s, politicians from all political parties were concerned not only about maintaining the Jewish majority in Israel, but also about issues such as dual citizenship, renunciation, opting out from becoming citizens, gender equality, and the naturalization of non-Jews (Herzog 2017).
With regard to both statutes, it is difficult to conclude whether the opponents justified their perceptions based on ethical values or on pragmatic calculations. Most laws include both aspects—they try to solve a particular issue while also underpinning a general ideal. Following Bourdieu (1998: 145), the task is “unveiling hidden differences between official theory and actual practice, between the limelight and the backrooms of political life.” Therefore, in order to assess the different justifications for the amendments, I have analyzed the subjective interpretation of the texts by the legislators who proposed them by examining the explanatory memoranda for each of the laws and amendments.10 It is customary for a short explanatory memorandum to be submitted when a bill is presented to the Knesset. In the surveyed bills regarding citizenship, these memoranda were several paragraphs or even a few pages long.
The assessment regarding the justification of each bill is not self-evident or unqualified since it is derived from the interpretation of the researcher, which will always be subjective. A few of the proposals did not have appended explanations, and even when there was a formal written justification, it did not necessarily represent the justification of those bills given in the speeches of the politicians in other arenas, or the genuine intentions of the drafters of these provisions. Lastly, while in reality each bill may have had multiple motivations, I have assigned a single justification for each.
I used several strategies to differentiate between the proposals. I began by evaluating the main logic of the text. While some of the bills were presented as measures to solve a specific difficulty of a particular person or group, others were presented as general guidelines for society as a whole. I classified the former considerations as ‘practical’ and the latter as ‘ethical’. At times, the explanatory memorandum explicitly presented the bill as following a legal directive of the HCJ, in compliance with the requirements of the international community. Such bills were classified as ‘practical’. The next stage was to look for terminology that signified a specific sub-category of civic traditions—liberal, republican, or ethnic. For example, words such as ‘equality’, ‘rights’, and ‘individuals’ suggested a liberal interpretation; expressions like ‘loyalty’, ‘civic virtue’, ‘emotional attachment’, and ‘military service’ indicated a republican outlook; and clauses that specifically target Jews and the ‘ingathering of exiles’ suggested an ethnic stance. If a bill was presented in one of these civic traditions, it was classified as an ethical move.
It is important to note that the goal of this study was not to classify an amendment as technical or ethical, but to observe that different laws were justified differently. These variations are summarized in table 1.
To illustrate the ambivalences in the justifications of the above legislative measures, I present some examples. The second amendment to the Israeli citizenship law, in 1958, included several changes regarding citizenship by birth and residence. It provided that children born in Israel after its establishment and who never possessed any other citizenship would be allowed to become Israel citizens if they requested citizenship between the ages of 18 and 23 and had resided in Israel during the preceding five years. This could have been presented as a significant transformation from an ethnic perception of citizenship to a liberal perception of citizenship that grants citizenship according to jus soli. Nevertheless, it was justified only as a technical move that Israel had to make in order to comply with the 1961 Convention on the Reduction of Statelessness.11
|Law||Amendment||Year||Goal||Explan. Memo.||Tech. Just.||Civic Trad.|
|Law of Return||1950||Enabling Jewish immigration||Ethical||Ethnicity|
|1||1954||Adding restriction to aliyah||Ethical||Republican|
|2||1970||Determining ‘who is a Jew’||Practical||HCJ ruling|
|Citizenship Law||1952||Establishing citizenship|
|Citizenship by birth and residence||Practical|
|3||1971||Granting citizenship without residence||Practical|
|4||1980||Limiting jus sanguinis for non-residence||Ethical||Republican|
|Prohibiting citizenship for Arabs from enemy states||Ethical||Republican|
|Granting citizenship to Arabs in the territories||Ethical||Republican|
|Extending citizenship for Arabs||Practical|
|5||1987||Extending granting of citizenship||Ethical||Republican|
|7||1998||Extending granting of citizenship||Ethical||Republican|
|11||2011||Entrance to Israel||Ethical||Republican|
Another example is a 1970 amendment to the Law of Return. As previously explained, this change was presented in public discourse as a significant symbolic shift in the state’s perception of Jewishness. Later, it had an unprecedented effect on the composition of immigrants after the collapse of the Soviet Union. However, in the explanatory memorandum, the amendment was presented as a practical change. It was argued that it did not represent an ideological transformation, but rather a procedural move that the government had to make following the HCJ ruling in the Shalit case.12 Therefore, in table 1, this amendment is coded as ‘practical’.
As discussed earlier, the Law of Return (1950) was presented as the ethical foundation of the Israeli state. In the bill’s explanatory memorandum, it was described as “the Bill of Rights for Jewish immigration.” The Israeli Citizenship Law (1952) also had moral elements and blended ethical, republican, and liberal civic traditions. The enactment of the ethnic component in the Citizenship Law (1952) was celebrated by the Knesset members as an important occasion that complemented the Law of Return (1950). Israel’s first prime minister, David Ben-Gurion, argued that “the Law of Return and the Law of Citizenship that you have before you are connected by a mutual bond and share a common conceptual origin, deriving from the historical uniqueness of the State of Israel, a uniqueness vis-à-vis the past and the future, directed internally and externally. These two laws determine the special character and destiny of the State of Israel as the state bearing the vision of the redemption of Israel.”13 By extending citizenship to Palestinian-Arab residents of Israel, the law also demonstrated Israel’s embrace of liberal values. Nevertheless, this article not only describes Israel’s citizenship laws as ethical, but also assesses the ways in which these laws and their amendments were formally presented.
As the literature suggests, Israel’s citizenship laws signify national precepts and, as such, are presented as mostly derived from ethical motives. Of the 20 explanatory memoranda analyzed, 14 were presented as normative stances regarding the social and cultural boundaries of the State of Israel. In other words, Knesset members usually understood that the procedural judgments were also symbolic indicators of the moral conceptions of nationality in Israel.
This was not always the case. In some instances, politicians chose to minimize the symbolic impact of the proposed bills. This is most recognizable in the 1970 amendment to the Law of Return. Although it was obvious, even at the time, that this amendment was a clear reform of the state’s immigration policy, it was presented as a technical provision that was passed only because the HCJ demanded it. By attributing responsibility to the HCJ for this change, politicians could preserve their relationship with the Orthodox political parties. From a theoretical point of view, citizenship laws always have moral underpinnings and implications; nevertheless, this does not mean that politicians always present them as such.
Another notable exception is the observation, as table 1 shows, that until the 1980s, the Citizenship Law was mainly presented as practical law. While politicians celebrated the ethnic measures of the law, its embrace of liberal values was perceived as a technical necessity since the law also governed the citizenship of non-Jews. As a result, its morality was not equivalent to the Law of Return. This different stance toward the two laws probably reflected the normative difference, according to Jewish Israelis, between universal and particular moral values, and their predisposition toward the former.
The content analysis of the proposals (and their explanatory memoranda) was not limited to the form of the law, since I was also interested in unveiling deeper layers regarding the ‘good citizen’. To this end, I also examined the citizenship tradition, which was used to explain the need for the proposed measures—liberal, republican, and ethnic. Except in one case, all Israeli politicians gave an ethno-national explanation for their ethical justifications regarding citizenship. While liberal and democratic values are also ethical, the Knesset members chose to present one form of citizenship (i.e., republican) as ethically superior. Shafir and Peled (2002: 34) argue that “in recent years the republican discourse, or principle, has been seriously weakened in Israel, while the liberal and nationalist discourses, or principles, have been revitalized.” The current study indeed shows that “the history of Israel, then, is the history of the pursuit of these contradictory goals” (ibid.: 2). However, at least regarding citizenship, the dominance of the republican discourse still prevails. Republican and ethno-national elements of Israeli citizenship are presented as being derived from ethical considerations and represent the ‘good citizen’, while liberal and egalitarian elements are described as procedural rather than reflecting the democratic ethical foundation of the state.
A noticeable exception to the overall republican terminology is Amendment 9 (2008), which regulates the expatriation procedure. This bill not only included liberal principles, but was justified as such. First, in keeping with the importance of the rule of law in upholding the rights of citizens, it was decided to specify which acts could be deemed breaches of loyalty and, as such, could lead to the revocation of citizenship. These acts include terrorism (as defined in the 2005 Law on the Prohibition on the Financing of Terrorism), assault on the country’s territory or sovereignty (Article 97 of the Penal Code), instigating war (Article 97 of the Penal Code), assisting the enemy in war (Article 99 of the Penal Code), disclosing secret information when not authorized to do so and with the intention to harm the security of the state (section 113B of the Penal Code), and the acquisition of citizenship (or right of permanent residence) in an enemy state, in contravention of Israeli law.
Second, according to international norms, which mandate that a person must not remain stateless, it was decided that the revocation of citizenship in Israel would be accompanied by the granting of permanent residency. Lastly, Amendment 9 also included the transfer of authority to revoke citizenship from the minister of the interior to the courts. This assertion—that the revocation of citizenship must be in a legal proceeding and not an administrative procedure—was generally advocated by those who opposed the employment of citizenship revocation. The accepted view is that revocation of citizenship by the executive branch can lead to the arbitrary and discriminatory revocation of citizenship of minorities, and therefore this authority should be held by the judicial branch. Moreover, the explanatory memorandum of the bill was presented as a move to minimize the use of an extreme form of punishment and to promote the natural rights of men and women.
However, if we look at the broader public discourse, in the Knesset and in the media, we can see that the egalitarian terminology was only masking, yet again, republican principles. The 2008 amendment was proposed by Gilad Erdan from the right-wing Likud party and was legislated by a right-wing majority. Paradoxically, the limited imposition of citizenship revocation in Israel, despite the minister of the interior’s authority to do so, led the government to believe that the transfer of authority to the courts would facilitate easier and more extensive use of this procedure.
Although Israel has been, and still is, struggling with the possible contradictions between its ‘Jewish’ and ‘democratic’ features, politicians prefer to explain citizenship laws as mainly republican. During the current Likud-led government, the coalition parties are constantly introducing new laws, such as Basic Law: Israel as the Nation-State of the Jewish People, adopted by the Knesset in July 2018, in order to present themselves as more nationalistic. This study suggests that such a motivation has been true for most of Israel’s history, and not only with respect to right-wing leaders. Even when the political elite formulated liberal citizenship policies, they preferred to conceal this ethical component.
I would like to thank the editors of Israel Studies Review and the anonymous reviewers for their helpful and insightful comments.
Gans (2016) presents three main moral justifications for Zionism: an egalitarian conception of the right to self-determination; the centuries-long persecution of the Jews in Europe and its continuation in the nineteenth century despite their emancipation there; and the historic bond between the Jews and Palestine. Please note that unless otherwise indicated, all translations from Hebrew are my own.
Exceptions to this observation are the articles by Barak-Erez (2008) and Carmi (2006) that analyze recent amendments to the Citizenship Law.
Although most scholars combine the various meanings of this institution, and almost none of them view citizenship as one-dimensional, this suggested division represents an approximation of the different attitudes held by academics about citizenship.
According to Brubaker (1992), Germany and France differ in their conception of citizenship. While France demonstrates a model of territorial inclusion and assimilative citizenship (jus soli), Germany applies a model of nationhood based on ethnic exclusion (jus sanguinis). The former gives priority to the protection of individual rights within the territory of the state, while the latter emphasizes ethnic origin as the criterion for equal citizenship or naturalization.
The broad generalization of citizenship practices and national culture can be very useful in locating overarching characteristics of large societies. The simplification of the notion of citizenship as consisting of a single and coherent value system is usually a necessity for both comprehending and explaining national trends. Accordingly, many scholars identify a nation-state with a particular coherent citizenship. This includes both descriptive and normative work. Among the researchers who ascribe a single kind of citizenship to the different nations are Conover et al. (1991), Miller (2000), Noiriel (1996), Ong (1999), Shklar (1991), and Walzer (1992). Many others argue that if a single coherent citizenship is not established, a conception of citizenship should be constructed for each specific state. These scholars include Benhabib (2004), Dagger (1997), Janoski (1998), and Kymlicka (1995).
Examples of transformations that would cause major citizenship changes include demographic fluctuations, social or cultural revolutions, the breakdown of empires (Herzog 2012), substantial shifts in international relations (Joppke and Rosenhek 2001), or, as in the case of Israel, the emergence of new states.
See “The Law of Return (1950); the Citizenship Law (1950), (first reading),” Divrey Haknesset 6: 2035–2037, 3 July 1950, translated by Dorothea Vanson-Shefer.
Sefer Ha-Chukkim, No. 163, 1 September 1954, 174.
Sefer Ha-Chukkim, No. 586, 19 March 1970, 34.
In Israel, all bills must undergo a number of stages, called readings. Every reading of a bill is adopted or rejected by a majority of the Knesset members present in the plenum at the time. Between each reading, there are debates within the Knesset committees, which prepare the bill for the next stage of legislation. After passing the third reading, it is published in the Official Gazette, with the signatures of the president, prime minister, Knesset speaker, and the minister responsible for the law’s implementation. The bill then becomes a law of the State of Israel.
See the Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, Vol. 989, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg&_no=V-4&chapter=5&clang=_en.
HCJ 58/68 Shalit v. Minister of the Interior (1970), IsrSC 23(2) 477.
See “The Law of Return (1950).” The last words (“redemption of Israel”) encompass the multiple meanings of the expressions that are at the core of this article. Although the common understanding of the term ‘Israel’ refers to the Jewish people in general, it can also be perceived as relating to the Jews who immigrated to Israel, the sovereignty of the state, or even the non-Jewish minorities who reside in the state.
Barak-ErezDaphne. 2008. “Israel: Citizenship and Immigration Law in the Vise of Security, Nationality, and Human Rights.” International Journal of Constitutional Law 6 (1): 184–192.
BeinerRonald. 1995. “Introduction: Why Citizenship Constitutes a Theoretical Problem in the Last Decade of the Twentieth Century.” In Theorizing Citizenship ed. Ronald Beiner1–28. Albany: State University of New York Press.
Ben-PoratGuy and Bryan S. Turner. 2011. “Introduction: Contemporary Dilemmas of Israeli Citizenship.” In The Contradictions of Israeli Citizenship: Land Religion and State ed. Guy Ben-Porat and Bryan S. Turner1–22. New York: Routledge.
CarmiNa’ama. 2006. “His Case Is Like That of One Who Made Aliyah According to This Law: The Impasse in the Stamka Case, the Purpose of the Law of Return and the Connection Between Return and Citizenship.” [In Hebrew.] Law and Government 10: 151.
ConoverPamela J.Ivor M. Crewe and Donald D. Searing. 1991. “The Nature of Citizenship in the United States and Great Britain: Empirical Comments on Theoretical Themes.” Journal of Politics 53 (3): 800–832.
GansChaim. 2006. “The Law of Return and Immigration to Israel.” [In Hebrew.] In From Richard Wagner to the Palestinian Right of Return ed. Chaim Gans200–224. Tel Aviv: Am-Oved.
HacohenDvora. 1998. “The Law of Return as an Embodiment of the Link between Israel and the Jews of the Diaspora.” Journal of Israeli History 19 (1): 61–89.
HerzogBen. 2012. “The Paradoxes of Citizenship Removal: Soviet and Post-Soviet Citizenship.” East European Politics and Societies 26 (4): 792–810.
HerzogBen. 2017. “The Construction of Israeli Citizenship Law: Intertwining Political Philosophies.” Journal of Israeli History 36 (1): 47–70.
JoppkeChristian and Zeev Rosenhek. 2001. “Ethnic-Priority Immigration in Israel and Germany: Resilience versus Demise.” Working Paper No. 45. Center for Comparative Immigration StudiesUniversity of California, San Diego.
KempAdriana. 1999. “The Mirror Language of the Border: Territorial Borders and the Constitution of a National Minority in Israel.” [In Hebrew.] Sociologia Israelit 3: 319–350.
LapidothRuth. 1986. “The Right of Return in International Law, with Special Reference to the Palestinian Refugees.” Israel Yearbook on Human Rights 16: 103–125.
LustickIan S. 1999. “Israel as a Non-Arab State: The Political Implications of Mass Immigration of Non-Jews.” Middle East Journal 53 (3): 417–433.
McGonigleIan V. and Lauren W. Herman. 2015. “Genetic Citizenship: DNA Testing and the Israeli Law of Return.” Journal of Law and the Biosciences 2 (2): 469–478.
NoirielGérard. 1996. The French Melting Pot: Immigration Citizenship and National Identity. Vol. 5: Contradictions of Modernity. Trans. Geoffroy De Laforcade. Minneapolis: University of Minnesota Press.
RousseauJean-Jacques. 1997. “Of the Social Contract.” In Rousseau: The Social Contract and Other Later Political Writings ed. and trans. Victor Gourevitch39–152. Cambridge: Cambridge University Press.
RubinsteinAmnon and Alexander Yakobson. 2009. “Democratic Norms, Diasporas, and Israel’s Law of Return.” Policy paper American Jewish CommitteeNew York.
SmithDavid E. 2004. “Indices of Citizenship.” In From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada ed. Pierre BoyerLindal Cardinal and David Headon19–30. Ottawa: University of Ottawa Press.
WeissYfaat. 2002. “The Golem and Its Creator, or How the Jewish Nation-State Became Multiethnic.” In Challenging Ethnic Citizenship: German and Israeli Perspectives on Immigration ed. Daniel Levy and Yfaat Weiss82–104. New York: Berghahn Books.