Jewish Collective Rights
The rights of individuals protect those of the group; this is a key principle of human rights in international law. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, speaks only of the rights that “everyone” has and “no one” shall be denied, making no reference to any universal group, collective, or national right. Recent years have seen a flood of scholarship on the history of human rights as a political concept. Yet at the same time, some political and legal theorists have also begun to consider how states legally regulate collective rights, and the strategies groups continue to employ to preserve them.
The idea that individuals have the right to equal treatment before the law is widely considered a hallmark of liberal democratic states, and the idea of human rights can be seen as part of the internationalization, at least in theory, of the liberal democratic value of individual rights. Yet collective rights still persist in different forms everywhere, and courts in liberal democratic states are increasingly deciding on questions about the rights and privileges of collectivities, especially religious minorities. The right to judge religious matters before a religious court, to teach in one’s own language, or to have institutions exempt from taxation, to give a few examples, tend to be justified by laws protecting individual rights, but can just as easily be seen as group rights. This may sound uncontroversial, except that ending the patchwork of special privileges and disabilities in feudal or corporate societies is considered by historians to be a central feature of state modernization. When European states modernized, so our understanding goes, they centralized, and attempted to eliminate competing authorities. There was no single historical model for this process and some states explicitly maintained (and maintain) certain group privileges for select linguistic, religious, and hereditary groups. But the dominant historical narrative explaining state modernization is one of the steady march of individual rights at the expense of group rights.
To make a larger point about the persistence of collective rights as a legal concept in liberal democratic states my current project explores the example of how Jews have pursued their collective rights as a minority group in Europe and North America, and as sub-groups of the majority in Israel. Jewish Rights, East and West explores how Jews adapted and continue to adapt their legal strategies to preserve collective rights in different legal environments, and also how legal systems and individual Jews have responded to various claims to collective Jewish rights. To do so, I isolate moments when Jewish collective and individual rights come into conflict, and explain why. Finally, I examine how different states have resolved or struggled with these conflicting rights as they arose based on their different histories. My hope is that comparing Jewish collective rights in different political contexts will provide insight into the broader question of how and why group rights persist in the modern world.
Defining Israel: Sources and Reflections on the Nation-State Law
Based on the Marginalia forum Defining Israel, this volume brings together essays on the significance and meaning of the battle over a Jewish nation-state law, as interpreted by a dozen leading legal scholars, political theorists, politicians, and historians: Israel Bartal, Ze’ev (Benny) Begin, Ruth Gavison, Yoram Hazony, Yousef Jabareen, Nahum Karlinsky, Nir Kedar, Yehudah Mirsky, David Myers, Gideon Sapir, and Alexander Yakobson. The volume also includes my substantial introduction “Jewish and Democratic According to the Law” and an interview with Tzipi Livni. Appendices include complete translations of all of the proposed basic laws attempting to legally clarify what it means for Israel to be a Jewish and democratic state and the complete official English translation of Ruth Gavison’s report, “Constitutional Anchoring of Israel’s Vision: Recommendations to the Minister of Justice.” Providing English readers the key documents at the center of this important debate, combined with sophisticated analyses from scholars with widely varying perspectives, Defining Israel is intended to be a resource for anyone seeking a better understanding of why Israeli society is still struggling to determine what it means for the state to be Jewish. To be published by Hebrew Union College/University of Pittsburgh Press.