Posted on July 16, 2002

It is a good thing the government has decided to have another discussion of MK Haim Druckman's bill that aims to establish settlements for Jews only. It is very important that the discussion delve deep and not remain at its current level, with the bill's opponents saying it is "racist" or circumvents the High Court of Justice, and its supporters saying it is vital for the future of Zionism.

Enactment of this bill would deviate from legislative practice consistent throughout Israel's history, by which with the sole exception of the Law of Return the state's laws apply equally to Jews and non-Jews. It is vital to maintain a tradition that stresses the equality of citizens in the eyes of the law, and to avoid legislating the proposed bill.

On the other hand, not every arrangement that distinguishes between national communities is racist and unjustified.

Given the complexity of Israel's situation, any attempt to completely ignore differences of national origin, language, religion and culture is doomed to fail because such differences, closely linked to the identity of the citizens of this country, are in many cases more important to them than their common citizenship.

Druckman's proposal didn't come out of the blue. It was a response to the High Court of Justice's decision in the matter of the Ka'adan family's demand that they be allowed to buy a plot in the communal village of Katzir.

The proposal is based on a reading of the decision, according to which the (agreed) commitment to forbid discrimination between Jews and Arabs prevents the creation of settlements whose goal is to strengthen the Jews' presence in regions of Israel and declares illegitimate the wish of Jews to choose to live in a communal village whose public culture is Jewish-Hebrew.

According to this reading, the Ka'adan decision requires a "color blindness" to national, religious or cultural identity in decisions to admit residents to communal settlements at least when it comes to the majority group in Israel, non-religious Jews.

Minorities such as Arabs, haredim, Beduin or Druse can demand homogeneity in their settlements in order to conduct their distinct way of life and protect themselves from assimilation.

The nonreligious Jewish majority does not share that concern, and therefore cannot demand the prohibition of cultural and nationalist elements different from itself without that being considered improper discrimination (and even racism).

IF THE Ka'adan ruling really does mean all that which is not clear I think it is wrong.
Jews may be the majority in Israel, but they are a small minority in a hostile region. Within this country there is a large minority that belongs to the Arab nation, which is the overwhelming majority in the region.

The desire to establish control in Israeli territory, as long as it does not impinge on inherent Arab rights, is a legitimate interest. It requires planning and legislative possibilities to increase the Jewish presence even in areas with a concentrated Arab population.

Precisely because Jews and Arabs are not eager to live together, there is need for a mechanism to ensure that the settlements of one group do not become binational or taken over by a majority of the other group.

This requires a legal means to prevent massive Arab infiltration of Jewish settlements, and vice versa. It cannot be reconciled with a "color-blind" approach.

Nor do the Arabs want "color blindness." They oppose the settling of collaborators among them. Druse object when non-Druse settle in their villages in large numbers. The opposition to selling land to Jews has existed from the start of Zionism and goes on to this day. It is part of a national struggle, not a show of racism.

Israel is the only country in the world where Jews are the majority and can enjoy the advantages of living in a state whose language, holidays and symbols are their own. They can ask to live in their state without fearing they will become a cultural and national minority in their settlements.

I therefore agree with the proponents of the bill that the implications of the Ka'adan ruling are undesirable. Nor do they stem from the correct and important principle it sets, non-discrimination of Arabs.

But it does not follow that a bad law needs to be legislated. As in the past, the attempt to correct legal rulings with laws may cause bigger problems than the ones the law aimed to correct.

More importantly, the dispute over the law distracts attention from the real problem raised by the Ka'adan affair. If Arabs had varied choices of good-standard housing in Arab settlements, they would prefer to live in their own cultural environment, for obvious reasons.

In such circumstances, the few who might still prefer to live in Jewish settlements would not pose any practical problem.

Under the circumstances, prohibiting them from living in Jewish settlements that offer a better standard of housing can certainly be construed as discrimination.

The correct way to deal with the Ka'adan issue is not legislation that explicitly permits establishing Jewish settlements, but the designing of a comprehensive settlement and housing plan offering varied and satisfactory solutions to all sectors.

Within such a plan one could surely defend the establishment or expansion of settlements that allow each sector of Israeli society to live in its own cultural environment, along with opportunities to choose living in a multinational community.
This would be Zionism well-reconciled with full political and social equality regardless of religion or nationality as Israel's Declaration of Independence promises.

The writer is a Hebrew University law professor.

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