Does the Law Of Return Deny the Jews the Status of a Nation?

* Inspired by a conversation with my friend Aziz Abu Sarah.

The effort to delegitimize Israel, which is ever growing, is now returning to examining first principles. Among these efforts involves casting doubt on whether the Jews makeup a real nation. This is an old obsession (dating back to the 18th century), but it has been given new life: If you can prove that the Jews do not constitute a nation, the argument goes, then you undermine the Jewish claim for national autonomy and self-determination within a political framework. So much for Israel being the nation-state of the Jewish people (also, if we are going to be logically consistent, so much for a bi-national state).

A recent article in Haaretz, for example, written by poet Salman Masalha (Druze citizen of Israel) argued that the phrase Jewish and democratic are irreconcilably in contradiction since religion and democracy don’t mix. In response to this article, Shlomo Avineri published a rebuttal stating:

“One of the problems that complicates attempts to resolve the Israeli-Palestinian conflict is this very issue – the fact that the Arab side has difficulty recognizing that Jews in the state of Israel view themselves as a nation. Identity is a matter of self-definition, not external definition. Just as Jews are not the ones who will determine whether the Palestinians are a people or not (there are more than a few of us who have yet to be reconciled with the existence of the Palestinian people ), Salman Masalha cannot determine whether the Jews are a people or not. It is a question of self-determination.”

Professor Avineri is absolutely correct. It is the Jewish people themselves who are going to decide their own identity (though he is not correct in suggesting that self-identity is formed without external influence.) However, in his effort to dismiss Masalha’s assumption, Avineri ignores a glaring fact that complicates his argument: namely, according to the state of Israel, as articulated in the 1970 amendment to the Law of Return, if a Jew converts to a non-Jewish religion he is no longer a Jew. The amendment states: “For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.”

On the surface, this clause suggests that by privileging religion as the only way to opt out of the Jewish people (as opposed, for example, an identification with another nationality) the Law of Return provides religious identification an overriding influence in determining “proper” Jewish identity (despite the paradoxical fact that it goes against Jewish law [i.e. matrilineal decent]). Does this mean, however, that according to the state of Israel Jews are not a nation? Or is such a conclusion derived from a conceptual confusion. Before we crack open this argument, some background is in order.

The law of Return enacted in 1950, and passed unanimously by the Knesset, gives every Jew (so long as the Jew in question does not pose a danger to the state) a right of citizenship in Israel. The idea behind this law is that Israel constitutes a home not only for those who live under the authority of the state, but also for Jews everywhere. It’s the legal embodiment of the Zionist principle that a Jewish state will serve as a safe-haven for Jewish people and Jewish culture. Indeed, the Declaration of the establishment of the state of Israel promises to “open the gates of the homeland wide to every Jew.”

In 1970, partially as a result of a large wave of immigration from Poland precipitated by a government-backed anti-Semitic campaign which saw many highly assimilated and inter-married Polish Jews come to Israel, the amendment to the law was added.

“The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 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 amendment in general reflects a recognition that the anti-Semite’s definition of the Jew (as expressed in the Nuremberg laws, for example) and the Jewish definition (as defined by Halakha) were at odds. Therefore, in an effort to placate diversity of voices within Israel, it gave right of citizenship not only to those individuals who were recognized by Jewish law as Jewish (matrilineal decent or conversion), but also to those with more distant relations to the Jewish people.

This is all makes sense. But the bewildering component of the amendment is the last clause which states that a Jew who voluntarily changed his religion is no longer considered a Jew (the word “voluntarily”, I would think, rules out Jews who were born into another faith). I say this clause is bewildering because according to the The Nuremberg Laws on Citizenship and Race, a Jewish person who converted to another religion is still a Jew and is to be treated as such. Moreover, according to Jewish law, a Jew who convert is still a Jew (though for practical purposes such as marriage and Minyan he/she may be excluded from the community, his status as a Jew, and therefore obligations to fulfill the commandments, remains unchanged.)

What is going on here?

The Case of Brother Daniel

The impetus for conversion clause was 1962 Supreme Court case of Rufeisen v. Ministry of the Interior. Oswald Rufeisen was born Jewish, belonged to the Zionist youth movement and persecuted as a Jew during the Nazi era. During the war, he was able to obtain a certificate as a German Christian and worked as a translator for the Nazis. Rufeisen used his access to vital information in order to warn Jews of specific German plans. He even supplied the Jews within his reach with arms. Once discovered, Rufeisen was imprisoned yet managed to escape and took refuge in a convent where he converted to Catholicism. Not one to shy from battle, Rufeisen joined the Russian partisans. After the war Rufeisen became a member of the Carmelite order and was ordained as a priest, taking the name Brother Daniel.

Of course the Carmelite order was not chosen by chance. Brother Daniel knew that it would eventually allow him to live his life as a Christian monk at the Carmelite monastery in Israel (thereby fulfilling his dream as both a nationally-identified Jew and a religiously-identified Christian.) Yet the Interior Ministry in Israel, while sympathetic to his life story, refused to grant him the status of a Jew and allow him to become a naturalized citizen. In his petitions, brother Daniel declared himself a member of the Jewish nation, by birth, history and self-consciousness.

Eventually, in 1962 his case was taken up by the Israeli Supreme Court. The court, which ruled (not unanimously) in favor of the government, argued that by converting to Christianity and by remaining a Christian, Brother Daniel had broken his historic ties to the Jewish people. Basing their argument on a common usage and understanding of the word “Jew”, the court stated:

“Insofar as the above-mentioned Law of Return is an Israeli law and not a law in translation, it is common sense to interpret the use of the term Jewish as we, the Jews understand the meaning and substance of the concept Jew. In the light of the usual Jewish significance of the noun Jew, a Jew who has converted to Christianity is not known as Jewish. Therefore, the applicant, despite his many qualities and the sincere love he holds for Jews, which he has proved, cannot define himself as Jewish.”

In its decision, the Supreme Court also articulated its position vis a vis Jewish law:

Clearly the term ‘Jew’ as used in the Law of Return (1950) does not have the same meaning as it does in the Rabbinical Court’s Jurisdiction (Marriage and Divorce) Law (1953). The latter is religious in meaning, as prescribed by the laws of Judaism; the former is secular in meaning, in accordance with its ordinary meaning when used in popular language by Jews. (Israeli Supreme Court Decision 76/62, Osvald Rufeisen v. Ministry of the Interior (1962) 14 P.D. 2428).

However, as stated above, the decision was not unanimous. Justice Haim Cohen dissented, stating: “A Jew is somebody who believes bona fida that he is a Jew”.

“History is one thing: continuity is another since it implies evolution. The latest and greatest historic change for the Jewish people – the creation of the State – implies an evolution of the people’s values and definitions. The Law of Return itself includes not objective criteria for deciding whom to register as Jewish with all the accompanying rights, so we must assume it intended the criteria to be subjective, namely a declaration in good faith, such as presented by Rufeisen. This is the limit of its mandate; no exclusions can be accepted for they do not exist within the Law itself; religious considerations or affiliations are irrelevant.”

In the end, brother Daniel was naturalized but his nationality was left blank. He spent the rest of his life in Israel.

A secular court giving a religious ruling in contradiction to the Jewish faith.

What is interesting about the 1970 amendment to the law of Return, inspired by the case of Brother Daniel, is that you have a mixture of criteria that are contradicting one another. On the one hand you have biology (matrilineal decent) and conversion (though type of conversion not specified) that is according to Jewish law. On other hand you have ideology (via converting out) overriding biology, which is against Jewish law. The conversion clause may lead people to conclude that being Jewish is primarily a religious identification – but notice the religious identification is not Jewish (since the Jewish identification [according to Jewish law] is more than religious). So in the end you are left saying that according to the (secular) Law of Return being Jewish is primarily a religious identification, but the religion in question is not Judaism. Huh?

Is the conversion clause a problematic position from the perspective of Jewish nationalism? That depends on how you understand what nationalism is. Many times we talk about nationalism as if it’s a fact that exists “out there” in any objective sense of the word. Yet it’s important to remember that the whole concept of nationhood is a social construct: an inter-subjective phenomenon co-created by individuals and projected on a collective level – what Benedict Anderson called an “imagined community.” Nations are imagined communities, explains Anderson, because “the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion.”

“Two men are of the same nation”, writes Ernest Gellner in Nations and Nationalism, “if and only if they recognize each other as belonging to the same nation. In other words, nation marketh men; nations are artifacts of men’s conviction and loyalties and solidarities.

Yeshayahu Leibowitz, the iconoclastic religious philosopher and editor of the Encyclopaedia Judaica, was particularly adamant about the subjective nature of nationalism:

A “nation” is not a natural entity amenable to objective definition. A “nation” is a being of the mind, which exist in so far as there is a mental awareness of its existence. It has no existence apart from this awareness. Is there a British nation, or perhaps only an English nation, a Scottish nation, and a Welsh nation? Is there an objective answer to his question? Which is the German nation-the population of the two Germanies only, or perhaps one should include also 8 million Austrians and 4 million German-Swiss, who all speak the same language, have the same literature and cultural tradition, and for much of their history formed a single political unit. Are the Indians , who never had one language, a nation? Which is the Arab nation? Is it the population between the Atlantic Ocean and the Persian Gulf, or perhaps there is a Moroccan People, an Egyptian nation, a Syrian nation, and so on? Is there a Jewish people? Consciousness of Jewish nationality has existed among the Jews for some 3,500 years and persist to this day, yet in view of many historians, social theorists, and political scientists of the 19th century and today, liberals as well as Marxists, its existence ended long ago. All these questions and similar ones have no objective answer. The answer is determined by the consciousness of those who feel they constitute a national identity.

(To hear Leibowitz speak about this (in Hebrew), including the above passage, click here.)

The key point when it comes to nationalism is that the people who belong to a given group identify themselves as a people and/or a nation. Jews are bound together (as are people of other nations) by sense of national consciousness and a sense of mutual relations (augmented [though not exclusively defined] by shared religion, language, territory, collective memory [also amnesia] and culture.)

The fact that according to the state you opt out (via religion) doesn’t necessarily mean being Jewish is not a nationality, or that it’s exclusively religious. Nor is it true that only Jewish nationalism provides religion with a salient role in its makeup (Irish or Polish nationalism are other examples that spring to mind). It needs to be remembered that according to the law of return you don’t have to be religious to count as a Jew (hence you can be a Jewish atheist who eats bacon with cheese everyday), but you just can’t have willingly converted and identify as a member of a non-Jewish religion.

What the conversion clause does suggest, on the other hand, is that secular Jewish identity is tied, by way of history, to Judaism as a religion: the form of secular Jewish identity (symbols, language, rituals, holidays, etc.) is borrowed while the content is new. Secular Jewish identity without the Jewish religion is like a fish without its skeleton. But secular Jewish identity, as an emergent ideational property, is also something that transcends religion. This is the unique characteristic of the Jewish nation as it is today. And it is for this reason why it’s mystifying for most Jews (as the Supreme Court judges reasoned) to speak of Jewish-Christians, or Jewish-Muslims or Jewish-Hindus. It is also for this reason why it’s not bewildering for most Jews to accept a secular (and atheistic) Jewish identity.

At the end of the day, it is the Jewish people themselves, as professor Avineri pointed out, who get to define what constitutes their union as a nation.

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4 responses to “Does the Law Of Return Deny the Jews the Status of a Nation?

  1. I am Often reminded what was Written by my Professor at Berkley ,Robert Bellah,Social Ethics in his Book,”America the Civil Religion”.When the Religion becomes the Politics and it becomes a Civil Religion.When every thing out side itself is Alien and not Us but Them.It easy to Dehumanize an Outsider and Easy to kill what is not considered Human.I like Martin Buber when He Wrote I-Thou.With a Spirttuality that is not Civil Religion, I-It,Subject-Object.True Spirituality of Compassion and kindness and Healing and Forgiveness embarces I-Thou.Given This Humanity is not Objectified into Genicide.All Civil Religions create I-It,Subject-Objective,War and Cinflict,Us and Them.With Martin Buber I-Thou,Perso to Person,Human Being to Human Being ther can be no Separation only Peace.Please Note the Commandment.Thou Shall not Kill.It is not Causuistic Law,Its Apodictive Action coming from I-Thou.I will not Kill.Or the Great Creators saying to his Children You will not Kill.Civil Religions of any Type based on I-It,Subject-Object is a Great Traditgy and Sin.Where there is no Love,Compassion and Healing and Forgiveness there is Ignorance and Sin.P.S. Roi I alwas enjoy what you share and your Deep sence of Humanity and Compassion and Social Justice.I send you a Big Hug from Bros. St.Thomas,I-Thou.

  2. Perhaps the most Jewish thing – and one of the only things that is still almost universally agreed upon among Jews – is the total comfort (maybe need) for the most complex, abstract, and dialectic definitions possible.

    Your last paragraph is wonderful, whether one agrees with it or not, because it characterizes so well the Jewish angst, that tension, of being and thinking many contradictory things at once – and holding this complexity aloft.

    Of course, as you point to at the start of your essay, this lack of clarity is also our undoing – others see it as deception, hypocrisy, and an Achilles Heel; and also, Jews often lose themselves (to one pole or another) in the maze. But trading the complexity for absolutism, as has happened in circles at either extreme, erodes our culture beyond recognition. And so, we contradict ourselves. So be it.

  3. Thank you Thomas and Sara , I appreciate the insights and kind words.

  4. Yes, the gordian knot of Jewish identity. Very interesting.

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