by Fady Khoury
According to Antonio Gramsci, social hegemony comprises: “1.The ‘spontaneous’ consent given by the great masses of the population to the general direction imposed on social life by the dominant fundamental group … 2. The apparatus of state coercive power which ‘legally’ enforces discipline on those groups who do not ‘consent’ either actively or passively.”1 These two elements of social hegemony — consent to the existent social order and control of the non-consenting — are facilitated through the cultivation of belief structures that determine and limit the horizon of imagined alternatives with regard to life and the social order. These belief structures are informed by many sources, one of which is law. As Robert Gordon observed: “Law … is one of these clusters of belief — and it ties in with a lot of other nonlegal but similar clusters — that convince people that all the many hierarchical relations in which they live and work are natural and necessary.”2
As Duncan Kennedy explained, hegemony “is the notion of the exercise of domination through political legitimacy, rather than through force.”3
The ways in which ideological hegemony is sustained vary, but one that we can point to is the workings and basic principles promulgated through the legal system which, as a hegemonic system, promotes a “single body of beliefs, practices, techniques and knowledge that plays different parts in the lives of different social classes.”4
While this Gramscian analysis has been applied primarily to understanding the domination by the elite in capitalist systems, it is equally appropriate for understanding and analyzing social dynamics in other types of domination through processes that generate legitimacy, including by criteria of race and ethnicity.
In this sense, to understand how law generates hegemonic legitimacy, it is crucial to consider the social meanings of law. The legal system operates not only as a regulative framework for the behavior of individuals (what they do) but also constitutes society and informs social consciousness and, consequently, society’s belief structures. It is a powerful agent of socialization, alongside other agents, through which citizens’ worldviews are shaped and their values constructed. The relationship between law — constitutional law in particular — and society is characterized by a dialectic dynamic; society creates law, and law often shapes and molds society into what it is. This sociological analytical framework views legislation in its social context and provides a prism through which the extralegal operation of legal texts and practices can be better understood, addressed, and evaluated.
Understanding law as a socializing agent, however, is not enough. In order to capture the ways through which it informs social relationships, promotes hegemony and socializes, one must look to its communicative and expressive functions. This view of the law as a medium through which values and ideas are expressed and meanings are communicated is understood in terms of the expressive function of law.5 Legislation manifests an official collective state of mind, reflects beliefs and attitudes, and relays messages about their subject matter. This is most evident in criminal law where, through punishment, society reflects official collective hostility toward certain behaviors through norms that then act as a socializing agent in shaping citizens’ attitudes towards those behaviors.6 This function of law and the social processes that follow, however, are not limited to criminal law. To varying degrees, they inform the function of all laws and, most notably constitutional law, which reflects the polity’s most basic beliefs and principles. The messages relayed through a state’s most basic laws become a source — one of many — in the social learning processes that inculcate newcomers with the values of their social and political communities.
In this short essay, I seek to analyze the Basic Law: Israel – The Nation State of the Jewish People (herein after the Jewish Nation-State Law), which sets the constitutional vision of the State of Israel, focusing on its extralegal social impact which, in my view, constitutes a perspective that has been lacking in the debate about the law. I will turn next to the contours of this debate.
The Partiality of the Traditional Legal Debate
So far, debates surrounding the Jewish Nation-State Law have primarily focused on its legal dimensions, its projected immediate impact on Israeli jurisprudence and the protection of human rights, and its erosive effect on the Israeli democratic order as a whole. Both opponents and supporters of the law have debated it in legal consequentialist terms, i.e., whether or not it deviates from and violates basic constitutionalist principles, either existing, imagined or desirable.7
Opponents of the law on the Zionist Left decried the absence within it of any reference to democracy or equality. They were less concerned with the further entrenchment and consolidation of the exclusionary Jewish character of the state, embedded in the “Jewish and democratic” paradigm to which they continue to express their allegiance.8 On the anti- and non- Zionist left, and particularly within Palestinian political and civil society circles, the law was depicted as producing a new constitutional order, as promoting an apartheid-like exclusionary constitutional environment characterized by colonialist attitudes, and as presenting a qualitative shift in the Israeli legal system.9
Supporters of the law on the right have engaged with legally-centered arguments, with some arguing that it is merely a declaratory norm that sets in writing Israel’s already recognized basic principles, while others see it as reasserting the state’s Jewish identity both in theory and, as they hope, in practice.10
The immediate legal impact of the law remains unclear, primarily due to its somewhat abstract language, which requires interpretation by the judiciary to provide it with practical meaning. Consequently, many critics of the law are now engaged in a speculative discourse regarding what the post-Nation-State-Law world in Israel/Palestine might look like and, therefore, all eyes are turned to the Supreme Court, whose justices are tasked with the challenge of determining the constitutionality of the law after eight petitions have been submitted against it.11
The main arguments promoted within these petitions, not unlike the questions discussed in the political debates before and immediately after the law was passed, are all related to the law’s juridical effects and the extent to which it harms certain legally protected human rights or deviates from existing constitutional values. For these arguments to be convincing, critics of the law must be able to demonstrate that it introduces legally harmful changes to the Israeli constitutional order. Their claims do not necessarily have to presume that the pre-Nation-State-Law legal reality was acceptable; they only have to show that the law makes it worse.
Whether or not the court will strike down the law remains unknown, for many structural and political reasons. This would require the court to claim judicial review powers over constitutional norms and, in the current political environment, this constitutes a risky move which will motivate the current government to curtail its powers through new legislation.12 Alternatively, the court could choose a different and much less confrontational approach; it could adopt a more limited interpretation of the law informed by previous rulings regarding the appropriate balance between the Jewish and democratic characters of the state.13 This, most likely, would provide no one with everything they desire but would avoid both intensifying the conflict between the court and the other branches of government and realizing each side’s worst-case scenarios: For the right, that would be striking down the law, and for the left, that would be declaring the law unqualifiedly legitimate. From within this narrow legalistic perspective, this would be a “good enough” outcome, since the court would uphold the legal status quo concerning what can and cannot be done in the name of the “Jewish and democratic” constitutional paradigm that was in place before the law’s enactment, rendering it merely a declaratory constitutional norm.
Analysis of the law solely in consequentialist-legal terms, however, is too narrow a prism and does not capture the totality of the harms inflicted by it. This is due to the fact that the traditional legal analytical framework, with its emphasis on legal rights (e.g., equality), fails to account for the social and expressive harms the law causes, even if it is rendered legally ineffectual through interpretive means. The mere existence of the law on the books imposes extralegal harms that can only be understood in terms of the expressive theory of law and its function as an agent of socialization.
The Jewish Nation-State Law and Expressive Harms
As Anderson and Pildes put it, “[e]xpressive theories of law are concerned with evaluating state action. On the rights and equality side of constitutional law, such theories assert that state action is required to express the appropriate attitudes toward persons. State action must express ‘equal concern and respect’ for all persons […]. It also must express a collective understanding of all citizens as equal members of the State, all equally part of ‘us,’ notwithstanding their racial, ethnic, or religious differences.”14
The most salient aspect of expressive accounts of law is its articulation of expressive harms. This occurs when laws treat citizens, or a subset of them, “according to principles that express negative or inappropriate attitudes towards [them].”15
In this light, the Jewish Nation-State Law, whether it entails any negative legal impact or is gutted through interpretation, sends a signal to the citizens of the state as to who constitutes its demos (the people). According to Article 1 of the law, “[t]he State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination” and it emphasizes that “[t]he right to exercise national self-determination in the State of Israel is unique to the Jewish people.” This message, however, is not restricted to the geographical realm where Israel’s constitutional order applies, for, as the law stresses, “[t]he land of Israel is the historical homeland of the Jewish people.”
The message communicated in this context is that citizenship is not the decisive factor for inclusion in the body of sovereigns, as sovereignty is placed in the hands of a subset of the state’s citizens based on ethnoreligious criteria — namely, membership in the Jewish people. Palestinians, both citizens of the State of Israel and residents of the Occupied Palestinian Territories, are erased from the conceptual definitions promoted within the bounds of the law, both as part of the group entitled to exercise selfdetermination and as those for whom this land constitutes their homeland. This message is reinforced by Article 7, which requires the state to promote and encourage Jewish settlement.
As has been argued, these messages are not restricted to the legal sphere. They entail values with which citizens are inculcated and according to which new generations of citizens will be socialized. Once people in general and the Jewish majority in particular internalize the Nation-State Law's exclusionary and contemptuous attitudes toward Palestinians, which place them outside the bounds of the state’s demos, the law will have successfully established that Palestinians constitute “the Other” in Israeli society.16
The law’s stature as a constitutional norm that pronounces the state’s normative vision is important in this regard. The constitutional consciousness constructed through this law will necessarily extend beyond the public sphere where it directly applies, and inform the social consciousness that determines the dynamics within the private sphere, wherein social interactions between Palestinian and Jewish citizens take place with no direct government mediation. For if Palestinians are constituted as “the Others” through state action, what moral reason could there be for a private individual to view and treat them any differently? If the state is mandated to promote Jewish settlement, what moral claim could be raised against a private homeowner who prefers to rent his property exclusively to Jewish tenants? The law promotes the basic idea that this territory, which hosts both Palestinians and Jews, belongs only to the latter and that the state exists for the latter’s welfare. Palestinian presence and very existence in these spaces is constructed as inorganic and foreign, contradicting the most basic rationale underlying the state’s project. These attitudes, whether expressed by private or public agents, are constitutive of the relationship between the party expressing them and the party subject to them. And in this regard, when a party to that relationship is treated according to a principle that expresses an inappropriate attitude toward them, that person suffers an expressive harm.17
This was certainly true of the segregation laws, both in Apartheid South Africa and the American South during the Jim Crow era. They did not merely set rules according to which spatial resources were distributed; they reflected hostile attitudes toward blacks expressed publicly and internalized socially in ways that informed and structured the social relationships between whites and blacks. These laws constructed, among other things, whites’ hegemonic attitudes and reinforced ideas about racial hierarchies. The “separate but equal” paradigm, which provided the rationale for both the Apartheid regime and Jim Crow laws, while never really equal, was eventually dismissed not only based upon its adverse material impact but, and more importantly, because of the expressive harms it inflicted upon blacks. Expressive concerns led the American courts to denounce “separate but equal” as inherently unequal. This was the position of the U.S. Supreme Court in Brown vs. Board of Education.18 The court ruled that “segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal” would inherently be unequal. This position, according to Anderson and Pildes, can only be understood by reference to the expressive harm of segregation (or ‘stigmatic’ harm), which is independent of other possible harms.19
Similarly, evaluating the legitimacy of the Jewish Nation-State Law exclusively in terms of its legal impacts in the constitutional sphere obscures the ways in which it promotes Jewish ethnic hegemony and mechanisms of control in a binational setting. Through its communicative function, the law otherizes Palestinians in the collective consciousness of the masses and reinforces relational hierarchies both at the official state level and, no less importantly, at the social private level. Future generations, ushered into Israeli society through socializing processes that inculcate them with the by-then normalized and well-entrenched values expressed by such laws, will have little reason to view Palestinians in anyway other than “the Other,” who is “worthy” of suspicion, hostility and suppression.
The legal entrenchment of the “Jewish and democratic” constitutional paradigm had expressive effects in the context of the interethnic social dynamics in Israel long before the Jewish Nation-State Law. This law, however, is a reinforcing restatement of the values enshrined by this exclusivist doctrine, as it manifests a stronger allegiance to the Jewish component, against which democracy and its universalistic and egalitarian values is constructed — by way of omission — as a threatening concept.
Therefore, more than any legal impact it might have on the lives subjected to its force, which could be managed and limited by agents of legal implementation (e.g. the Judiciary), the Jewish Nation-State Law’s impact on the social legitimacy and standing of Palestinians in Israeli society, which are already compromised, may prove to be the real danger it imposes.
1ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS 12 (edited and translated by Quintine Hoare and Geoffrey Nowell Smith, 1971).
2ROBERT W. GORDON, NEW DEVELOPMENTS IN LEGAL THEORY, IN THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 281, 287 (first ed., David Kairys ed., 1982).
3Duncan Kennedy, Antonio Gramsci and the Legal System, 6(1) ALSA F. 32 (1982).
4Id., at 35.
5See, Elizabeth S. Anderson and Richard Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000) (hereinafter: Anderson and Pildes); Cass R. Sunstein, On the Expressive Function of Law, 144(5) U. PA. L. REV. 2021 (1996).
6BILL WRINGE, AN EXPRESSIVE THEORY OF PUNISHMENT 23-25 (2016).
7One platform on which such debate took place is in the legal blog ICON-S-IL where a symposium on the Law was held and in which the main points raised against it were limited to its possible impact on the democratic order of the State and the protection of human rights. See ICON-S-IL Symposium on the Nation-State Law and the Override Clause.
8In this context, it is telling that the first reservation the Meretz Party submitted against the law was to change its title to “The Law of the Obvious,” suggesting that the main ideas enshrined in the Basic Law are self-evident in the Israeli constitutional order, rendering it superfluous.
9See: Hassan Jabareen, The Origins of Racism and the new Basic Law: Jewish Nation-State, VERFBLOG, (November, 11, 2018) (It is worth mentioning that towards the end of this entry, the author hints in passing at the expressive function of the Nation-State Law).
10See Aviad Bakshi, Does the Nation-State Law Negate the Right to Equality? ICON-S-IL Blog (October 21, 2018) [Hebrew].
11One of the petitions that was submitted by Adalah – The Legal Center for Arab Minority Rights in Israel is available in English [PDF].
12The debate over the Israeli Supreme Court’s judicial review powers over Basic Laws has been the subject of major controversy. See, Yaniv Rosnai, Limits to Basic Laws, THE JERUSALEM POST (August 15, 2018); Yonah Jeremy, Shaked, Levin Threaten High Court not to Nix Jewish-Nation State Law, THE JERUSALEM POST (October 9, 2018).
13One example is the Court’s narrow interpretation of the scope of application of article 7A to the Basic Law: the Knesset which disqualifies political parties and individuals from running for elections if they, inter alia, deny Israel as a Jewish and Democratic state. See: EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi  IsrSC 57(4) 1.
14Anderson and Pildes, supra note 5, at 1520.
15Id., at 1527.
16Concerning the construction of otherness and its social implications, see: Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988).
17Id., at 1529.
18Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
19Anderson and Pildes, supra note 5, at 1542.