Jerusalem Letter / Viewpoints
No. 445 6 Tevet 5761 / 1 January 2001
"THE POOR IN YOUR OWN CITY SHALL HAVE PRECEDENCE":
A NEO-ZIONIST CRITIQUE OF THE KATZIR-QAADAN DECISION
Gerald M. Steinberg
Post-Zionism in the Supreme Court? / Qaadan vs. Katzir - Reactions to the
Opinion / The State's Weak Case / Individual Rights and Personal Equality vs.
Group Rights / The Opinion: Walking the Tightrope / Land, Conflict, and
National Rights of Survival / The Illusion of Normalcy / The Zionist Case for
Reverse Discrimination and Affirmative Action
Post-Zionism in the Supreme Court?
As events that accompanied the establishment of the State of Israel receded
into the history books, the extraordinary accomplishments of the Zionist
movement also began to fade. For many Israelis growing up after 1948, Zionism
became a negative term, satirized and trivialized, and the details of its
achievements were rarely taught in the Israeli schools.
Only a half-century after reaching the seemingly inaccessible goal, a small
group of intellectuals have turned this unique triumph inside-out. Focusing on
allegations of systematic discrimination, self-styled post-Zionists place
primary emphasis on individual equality and rights, calling for the
transformation of Israel from a particularist Jewish state to a "state of all
of its citizens." Many adopt the terminology of post-modernism and
deconstructionism, and the more radical among them equate Zionism with
intolerant chauvinist nationalism, echoing the traditional Arab position that
the Jewish state was born in sin, at the expense of the rights of the
In response, critics argue that post-Zionists and "new historians" are
alienated from Israeli society,2 and reflect the exhaustion of decades of
conflict, the desire for individual attention, and other psychological factors.
(These factors were illustrated in the recent case of a graduate student at
Haifa University who admitted that his thesis claiming to document a massacre
during the 1948 War of Independence had been fabricated.)3 In many ways,
post-Zionism shares many of the characteristics of the intellectual and
political waves of secular messianism that swept the diaspora during the
turmoil of modernization and emancipation. Like the disproportionate and
self-destructive support for Bolshevism in Russia and Eastern Europe of the
nineteenth and early twentieth centuries, today's post-Zionists reflect a
profound desire for assimilation.4
Following the decimation of European Jewry and the disappearance of the largest
remaining diaspora communities through assimilation, efforts to dismantle the
achievements of Zionism from within are tantamount to collective suicide.5
Without the political base provided by the State of Israel, the institutional
and cultural foundations of the Jewish people are unlikely to survive more than
a generation or two. Reflecting this bleak forecast, even a number of liberal
secular Israelis such as MK Amnon Rubinstein (Meretz) have distanced themselves
from the self-destruction of post-Zion-ism, re-emphasizing the importance of
the Jewish state.
In the context of this debate, the decisions of the High Court of Justice take
on particular importance. Under Chief Justice Aharon Barak, the court has been
willing and often eager to play an active role in attempting to adjudicate the
most central and conflictual aspects of Israeli society. Judge Barak's
controversial opinions on issues such as the interaction between religion and
state, equality and individual rights, and the balance between the principles
of Western liberal democracy and the values of Jewish tradition have
transformed the judiciary into a highly visible and very active player in the
Israeli political process. In this process, Judge Barak has applied many
precedents from European and Anglo-Saxon jurisprudence, while generally
diminishing the importance of Jewish law and norms. In this and other contexts,
there are some disturbing similarities in approach between the opinions issued
by the High Court and the post-Zionist framework.
Qaadan vs. Katzir - Reactions to the Opinion
These similarities, as well as some important differences, were visible in the
March 2000 decision in the case of Qaadan vs. the Katzir Cooperative
Settlement. Based on the challenge posed by an Arab family (Qaadan) on the
question of land allocation for small Jewish outposts in the Nahal Irun (Wadi
Ara) region, the case encompasses many of the key elements in the social and
cultural divide, including the tension between individual and group rights, the
definition of such group (national and religious) rights, and the yearning for
"normalcy." The issues extend far beyond the substance of the case and the
tentative and carefully structured arguments in the majority (4-1) opinion,
written by the court's president, Justice Aharon Barak.
Post-Zionists and Israelis on the left of the political spectrum greeted the
outcome enthusiastically, seeing the ruling as evidence of the growing
acceptance of their positions. Ha'aretz editorialists declared that "The
court's ruling strengthened the citizen's entitlement to equality in his or her
dealings with state institutions....The principle of equality has been
affirmed, and without judicial wrangling over the Jewish character of the State
of Israel."6 Joseph Algazy wrote that "in denying the state the right 'to
allocate state lands...on the basis of discrimination between Jews and
non-Jews,' the High Court...smashed an old taboo that turns out to be
essentially racist in nature."7 In the Jerusalem Post, David Newman (from
Ben-Gurion University) wrote that the court's decision "struck at the very
heart of the Zionist enterprise...[and] raised the major contradiction which is
rooted in the definition of the State of Israel as a Jewish state and a
democracy." (With some imagination, Newman compared the situation with
neighborhoods in the U.S. or UK, where minority groups have difficulty
obtaining housing, and describes the ruling as a condemnation of the "blatant
discrimination" that has informed Israeli housing policy.8)
For the same reasons, traditional (i.e., non-post-) Zionists of different
orientations viewed this decision as a disaster. From this perspective, the
court's narrow focus on individual rights and equality, rather than on the
collective historic rights of the Jewish people and the long-term security
implications, was misplaced. They noted that in his long and detailed opinion,
Aharon Barak did not consider the central geographic, demographic, and
political factors in the Nahal Irun region. Between Afula and Hadera, the
population ratio is currently 5,000 Jews to 100,000 Arabs, many of whom live in
towns such as Umm el-Fahm and Arara, from which Jews are excluded. The area is
near the Jenin district in the Palestinian Authority, where 200,000
Palestinians live. There is no free market in land sales, and Arab land-owners
will not or cannot sell land to Jews without endangering their lives. In the
wake of the radicalization of the Arab population, and identification with
Palestinian and Islamic movements, Jewish Agency head Sali Meridor warned that
this decision would increase the threat to Israel's territorial integrity and
For some, the outcome provided further evidence of the dangers of Aharon
Barak's judicial activism.10 The decision reinforced the image of a judiciary
that is out of touch, unaccountable, and infected by the virus of post-Zionism.
Ma'ariv editorial writers argued that "An honored place is reserved in Zionist
history for the purchasers of Arab land to be used for the settlement of Jews.
For years, this was the essence of Zionism. Yesterday, the last nail in the
coffin of the holy mission...was nailed."11 Similarly, Yair Sheleg (in
Ha'aretz) declared that the ruling "undermines the basic Zionist principle of
promoting a Jewish presence on the land (as distinct from the obligation to
protect the rights of all citizens in their present place of residence)."12
Although Yoram Hazony's indictment of post-Zionism (The Jewish State: The
Struggle for Israel's Soul) was completed before the court's decision, the
book's release and the debate that followed underlined the centrality of this
erosion. In an op-ed column in the New York Times, Hazony cited the outcome as
evidence of the inability of the Jewish state to preserve its own vital
The State's Weak Case
However, a careful reading of the opinion shows that, within the limited terms
of this case, the responses of celebration and anguish from the respective
sides of the cultural divide were not entirely justified. As will be
demonstrated, the arguments presented by the defendants, particularly the State
of Israel (represented through the Ministry of Housing), were weak, technical,
and avoided presenting the core issues and principles. To the degree that the
outcome represented a victory for post-Zionism, it was won (and lost) by
default, rather than through the presentation of a convincing case. The
apparent inability of the state to defend traditional Zionist interests and
objectives should cause more concern than the court's ruling.
Aharon Barak was clearly aware of the implications of this case, using
tentative language and making it difficult to draw any far-reaching
conclusions. Although the court ruled that, in this specific case, the state
was not entitled to provide land to the Jewish Agency for the purpose of
building an exclusively Jewish community,14 it also did not order the Jewish
Agency to provide the petitioners with housing in the settlement. Rather, in
the lengthy and ambiguous opinion, issued reluctantly after four years of
delay, the court's majority told the state to reconsider its decision denying
the request by Adel and Iman Qaadan, and to "consider means by which the
petitioners could acquire housing in the community of Katzir."15
At the same time, in giving primacy to the issues of equality and other norms
usually associated with liberal homogeneous democratic societies, over the
collective rights of the Jewish people to defend their vital national
interests, the court's ruling may very likely become an important precedent,
and represent, in Justice Barak's words, "the first step in a long and
sensitive road."16 In the wake of this decision, other Arab couples have also
asked the court to reverse decisions in which their applications for housing in
Jewish communities in the Nahal Irun and Galilee areas were denied. In the
Katzir/Qaadan case, Barak indicated a general direction, but the eventual
destination for the Zionist enterprise in these areas, and, by extension, the
rest of the Jewish state, is by no means clear.
Individual Rights and Personal Equality vs. Group Rights
The core issue in this case was the conflict between the principle of
individual equality, and the collective rights of groups to limit, and in some
cases even violate, these norms on the basis of other overriding principles. In
such situations, while traditional Zionism, like other national, religious, or
other ethnic-based movements, emphasizes collective rights, post-Zionist
ideology gives priority (or even exclusivity) to the first set of principles
based on the centrality of the individual.
In their petition to the court, the lawyers for the Qaadan family (as
summarized in Barak's opinion) highlighted the issue of individual rights and
equality. They were careful to distance themselves from the most blatant post-
or anti-Zionist claims, acknowledging "the Jewish foundations in the identity
of the State of Israel, the history of settlement in Israel,"17 and the
important contributions of the Jewish Agency in fulfilling Zionist goals.18
They argued that the Jewish foundation of the state is of primary importance
only with respect to core issues, such as the Law of Return, and does not apply
to allocation of land for settlement. In their view, the settlement phase of
Zionism has been completed,19 and while not arguing for a reversal of earlier
policies, they stressed the "forward-looking" nature of their petition in
establishing the principles of equality in Israel's democratic society.20
The numerous respondents (the Israel Lands Authority, the Ministry of Housing,
the local council of Tal-Irun, the Jewish Agency, the Katzir settlement group,
and the Israeli Farmers Organization) emphasized different issues, and in many
cases their arguments - as described in the majority opinion - were weak and
avoided direct presentation of the central demographic and political issues.
The lawyers for the government and the Housing Ministry acknowledged the right
of individual Arab families to live in the area of Nahal Irun. However, they
also claimed that in the specific case of Katzir, the nature of this
cooperative organization and its by-laws, restricting admission to Israelis who
served in the IDF (in other words, excluding Arab citizens who are exempted
from military service), were legitimate.
This proved an easy target for Aharon Barak, who noted that other than IDF
service, the members of the Katzir cooperative settlement did not share any
distinctive factor, and thus were not entitled to protection from the principle
of equality under a form of affirmative action (see the detailed discussion of
this point below). A second claim, focusing on the role of the Jewish Agency,
"the arm of the Jewish people in the diaspora," in managing the land provided
by the state, was also weak and unconvincing. As Barak noted, beyond the
technical issues regarding the transfer of responsibility to the Jewish Agency,
the state did not provide special reasons to exempt this case from the general
rules of equality.21 While citing the statutes governing allocation of state
lands, the respondents apparently did not make the case that the particular
(Zionist) goals embodied in these statutes justify violating the principle of
In contrast, the Jewish Agency's response was far more substantive,
acknowledging the direct clash between individual and group rights in questions
of land distribution. The Agency's arguments were anchored in the historical
and national dimensions, emphasizing the continuing importance of settlement,
in general, and in peripheral areas where the Jewish presence is thin, in
particular. The Agency's advocates argued that these goals are entirely
consistent with the Jewish and democratic foundations of the state, as well as
the accomplishment of Zionist objectives.22 In addition, they warned that
acceptance of the petition would mean the end of the settlement program that
the Jewish Agency began at the beginning of the century.23 These respondents
also cited the security aspect of this settlement in the chain of Jewish
outposts in Nahal Irun and other areas, whose purpose is "to protect the Land
of Israel in the name of the Jewish people" (as written in the charter of the
The Opinion: Walking the Tightrope
In his opinion, Barak focused primarily on individual equality, concluding that
while full equality is not an absolute right in every case, when there is a
clash, this principle has primacy. Particular exceptions are acceptable only
when implementation of individual equality would harm the general welfare. In
this case, he ruled that there was no contradiction between the general
interests of society and the specific welfare of the Qaadan family.
The ruling did not come to grips with many of the arguments raised by the
respondents, and dodged questions on general principles governing land
allocation and security. The court determined that the respondents did not
present arguments that would justify granting the settlement of Katzir a
distinct status that would override the general principle of individual
equality. Barak noted that the respondents did not reject the right of Arabs to
live in other settlements in the Nahal Irun region, which includes mixed
communities, but no case was made for keeping this community, two kilometers
from the others, exclusively Jewish and thereby violating the principle of
At the same time, Barak distanced himself from the more radical version of
post-Zionism by linking the emphasis on individual equality in Israeli law to
the Jewish as well as democratic nature of the state, and citing the
Declaration of Independence. The review of precedents included an opinion
written by Justice Menachem Elon (one of Barak's major critics) rejecting
discrimination in a decision overturning the exclusion of women in religious
councils.25 Barak also cited an opinion written by Judge Berenzon paraphrasing
an ancient prayer - "When we were exiled from our land, and we were removed
from our land, we became victims of the nations where we dwelled." Berenzon
concluded that on the basis of this experience, the Jewish nation, as
represented by the State of Israel, must not tolerate inequality, except in
cases of affirmative action or "when special conditions obtain."26
Dismissing assertions that the values of democracy and the Jewish heritage are
incompatible, Justice Barak cited the elements of Jewish tradition focusing on
individual equality that are incorporated in the Basic Law: Human Dignity and
Freedom. "We reject the claim of a clash between the nature of Israel as a
Jewish state and a democratic state based on equality, or that a Jewish state
justifies discrimination on the basis of religion or nationality." According to
Barak, the Jewishness of the state is expressed in the use of Hebrew as the
national language, the calendar based on Jewish "national experience," and the
centrality of the Jewish tradition in religious and cultural dimensions.27
Furthermore, Barak acknowledged the legitimacy of restrictive land-use policies
in response to security requirements and to prevent transfer of land to
"undesirable elements."28 He explicitly acknowledged the legitimacy of
exclusive settlements for Jews (or for other groups, including Arabs, Druze,
etc.) under specific conditions, but demanded accountability from the
government in such cases. The opinion also notes the distinctive circumstances
of this case, and excludes the use of this judgment as a precedent with respect
to distinct communities, such as kibbutzim, or settlements related to state
This appears to be a strong hint that the outcome might have been different had
the respondents emphasized the security-related issues more strongly, and if
they had demonstrated why a single Jewish outpost amidst mixed-population and
exclusively Arab communities had important security and settlement
implications. Similarly, if the members of the Katzir group shared more
specific characteristics, such as religious practice, ideology, etc., the court
might have accepted its legitimacy.
In his dissent, Justice Kedmi emphasized the need to balance equality with
other values, including security requirements, which "insure the existence of
Israel as a Jewish and democratic state." While the need for exceptions to the
principle of equality has diminished since 1948, such security-based
considerations are still necessary in some cases. In this context, and in sharp
contrast to Barak, he emphasized the specific location, and the purpose of
designating this site for Jewish settlement. Kedmi noted that the decision
taken 18 years ago to restrict settlement in Katzir to IDF veterans was
justified at the time, and there was no basis for changing this retroactively.
In addition, in contrast to Barak, Kedmi argued that the existence of mixed
urban settlements in the area, created after Katzir, did not negate the
justification for restricted settlement in this settlement.
Land, Conflict, and National Rights of Survival
As Barak noted in his opinion, many of the points made by the respondents
avoided the key issue - the continuing conflict over the control of land.
Questions of borders, security, war, and the survival of Israel as a Jewish
(Zionist) state were given short shrift in this case.
The silence of the defendants on these issues, and the readiness with which the
judges in the majority avoided them, were, in themselves, reflections of the
creeping influence of post-Zionist ideology. Perhaps because for many years the
settlement rights of Jews in a Jewish (i.e., Zionist) state have been taken for
granted, the representatives of Zionist institutions are no longer capable of
making or defending this position.
Land is and has always been at the core of political Zionism and the
Arab-Israeli dispute. In this context, ownership and control of land is not and
has never been an issue restricted to property rights and questions of
The successes of the Zionist movement were made possible by the purchase and
development of land, beginning at the end of the nineteenth century. The land
that the Jewish people occupied and controlled, whether as individuals or
collectively, determined the pace of immigration and formed the boundaries for
the Jewish state.
By the same token, the Arab war against Zionism was manifested in violence
designed to terrorize residents of isolated settlements, and in efforts to
prevent Jewish ownership of land. During the 1948 war, Israeli forces were able
to gain and maintain control in Wadi Ara (Nahal Irun), thereby insuring
territorial contiguity. Most of Israel's Arab citizens reside in this region,
and despite policies based on paternalistic co-optation and force,30 the
influence of nationalist and rejectionist movements has increased in parallel
with Palestinian gains.31
As recent events have demonstrated, these movements continue to pose a threat
to the security and territorial viability of the State of Israel. At the end of
September 2000 (during the Jewish High Holidays), the violent clashes,
road-closures, and attacks against police and Jewish Israeli vehicles in
support of the Palestinians and opposing Israeli policy demonstrated this
potential. Situated adjacent to the Palestinian-controlled areas, the Arab
population of these areas of Israel could, at some point, seek to secede and
join a Palestinian state.
In the effort to prevent such developments, the Israeli government, the Jewish
Agency, and other institutions have sought to increase the level of Jewish
settlement and control over land in this highly sensitive area. In addition to
major urban settlement in areas such as Upper Nazareth and Carmiel, small
hilltop settlements (mitzpim, or outpost communities) have been created. This
is the vital but largely unstated context of the Katzir decision.
As noted, the State of Israel and the court avoided dealing directly with these
key issues in this case, and the more obvious expressions of violence came a
few months after this ruling. However, the conflict over land, and the means
used to pursue this conflict, remain primary, and will undoubtedly arise in
The Illusion of Normalcy
In making the case for the priority of individual equality, Justice Barak cited
a number of international documents, including the 1948 Universal Declaration
of Human Rights and the European Convention on Human Rights. He noted that
guarantees of equality and protection from discrimination based on race,
religion, and nationality are incorporated in most modern constitutions.33 In
Barak's view, Israel, as a member of the club of democratic states, is also
expected to prohibit discrimination and ensure equality.
Throughout his tenure on the court, Justice Barak has made extensive use of
foreign precedents and opinions imported from the U.S., Canada, and Western
Europe.34 In this case, the opinion includes extensive quotes from the classic
1954 decision in Brown vs. Board of Education, in which the U.S. Supreme Court
rejected the "separate but equal" argument on the basis that such arrangements
are inherently unequal.35 On this basis, in part, Barak rejected a "separate
but equal" formula for Jewish and Arab communities.
The extensive effort to transfer the norms and experiences of the U.S. and
other liberal democratic societies to the Israeli context provides a direct and
important link between Barak's judicial philosophy and post-Zionist ideology.36
From both perspectives, Israel is, or should be, a "normal" liberal and
universally egalitarian state. In the post-Zionist lexicon, "normalcy" is a
synonym for the idealized American condition, in which equality under the law
is the state's raison d'etre.
In contrast, from a Zionist perspective, Israel was established as a Jewish
state, first and foremost, and in key areas, such as language, calendar,
immigration, and control of land, the interests of the Jewish people have
precedence. Many Israelis - like others in the Middle East - identify
themselves according to ethno-national and religious membership rather than
primarily as individuals. In this framework, most Israeli Jews are either
Zionists themselves or descended from Zionists who chose to make their home in
the Land of Israel, for both religious and national reasons, in the past three
generations. When other options are available, the choice to live and raise
children in this difficult environment makes little sense when stripped of the
In this context, the Israeli situation is by no means unique. In many
democratic societies - including Europe, Japan, South Korea, etc. - the
nationality that forms the core of the state's existence enjoys primacy, in
terms of language, calendar, legal system, and other cultural factors. Even in
ostensibly multicultural societies, such as Canada, the U.S., and Australia,
the cultural foundations are based on dominant (usually Protestant Anglo-Saxon)
However, Israel is not a typical Western liberal democratic society, but rather
is a Jewish state that attempts to integrate the Jewish and democratic
traditions. In addition, the areas in which the Israeli situation is clearly
abnormal - the absence of recognized borders, and the denial of legitimacy by
neighboring states - were not even mentioned in Barak's text.
This illusion of normalcy can, in part, be attributed to wishful thinking,
particularly on the part of secular intellectuals who believe that they have
more in common with their counterparts in liberal societies than they have with
traditional (non-secular) Israelis. However, if the Israeli situation were
normal or comparable to that of the U.S. or UK, the difficulties that were
raised in this case, and that prevented the judges from issuing a clear-cut
statement, would not have existed. There would be no conflict between equality
for Arab citizens seeking to join a particular community and the security
interests of the state.
The reality, however, is very different. The growth of nationalist and Islamic
ideologies among Israel's Arab population was illustrated by orchestrated
violence at Haifa University, disturbances in Shfaram including an attack on
Druse leaders at the Israeli Independence Day reception, violence to mark
"Naqba day," the boycotting of the Israeli flag, flying of the Palestinian
flag, and open identification with Hezbollah. These events occurred shortly
after the court issued its decision. A few months later, as noted above, these
areas erupted in attacks against Israeli institutions and individuals, and in
other actions in support of Palestinian violence.
These expressions of Arab nationalism and hostility, particularly in the
Galilee and Nahal Irun regions, have led to increased statements of concern,
even from the Israeli left. MK Amnon Rubinstein warned of "flagrant political
irredentism," and of Arab leaders who preach that "the Jews have no right to
their own country." Rubinstein noted that "For those of us who climbed the
rocky face of the mountain in our crusade on behalf of greater equality for
Israel's Arab citizens, the present period is an excruciatingly bitter
disappointment....The goal of this upheaval is not the attainment of more
rights for Israel's Arab citizens, but rather to revolt against the very
existence and substance of Israel as the state of the Jewish people."38
Rubinstein also condemned the blatant abuse of the democratic process and of
sensitivity to minority rights and individual equality in order to undermine
the legitimacy of Israel. "Freedom of expression is not freedom to engage in
incitement or to proclaim support for murderers or to show disrespect for the
Israeli flag." In language that seemed directed toward Aharon Barak, Rubinstein
concluded that "You cannot expect equal rights from a state whose very
legitimate right to exist is something that you deny. The state, after all, is
the context in which you want to be an equal member, and only under the
protection of its flag can you demand equal rights for all citizens of the
state."39 In other words, as at least Rubinstein realizes (if not explicitly),
the Israeli situation is far from "normal," and efforts to apply "normal"
(liberal democratic) norms and values out of context have not been successful.
The Zionist Case for Reverse Discrimination and Affirmative Action
Since the establishment of the State of Israel as a Jewish state based on
democratic norms, its leaders and citizens have struggled with the difficulty
of reconciling these two characteristics. In the face of resurgent hostility,
this process continues to be very difficult. For post-Zionists, there is no
problem - they simply seek to erase the Jewish aspect of the state. However,
for the rest of us, the question of how best to protect the rights of
minorities (primarily the Arab population) while maintaining a Jewish majority
and core Zionist objectives is a serious challenge. Although the record of
other countries in the Middle East, such as Egypt, Syria, Saudi Arabia, etc.,
with respect to minorities is appalling, this scale is not appropriate for
In this context, the principle of "aniyi ircha kodmim"40 (translated roughly as
"the poor of your own city have precedence") is central. There are many liberal
democratic states that are, ostensibly, and without checking the details too
closely, "a state of all their citizens." Israel is not one of them, but
rather, as the only Jewish state, it has an important role to play in
preserving and rebuilding the Jewish people, society, and culture.
The judiciary, and, in particular, the High Court of Justice under Aharon
Barak, will continue to play a major role in this conflict. As demonstrated,
the court's decision in the Katzir/Qaadan case was not a strong endorsement of
post-Zionism. However, it does constitute what may turn out, in the long term,
to be an important step in this direction. In this sense, the court highlighted
the centrality of individual identity, rather than collective identities. Once
the framework of analysis is based on the individual, rather than group
membership and identification, it is obvious that all citizens are equal under
the law and in dealings with the state.
As in the U.S. and other countries in which discrimination is only acceptable
in extraordinary circumstances, such as affirmative action, Justice Barak
acknowledged the possibility that in some cases involving cultural
preservation, separate communities on state land would be acceptable, but these
are exceptions and, in his view, do not apply in this case.41
However, it is possible to take a different view, in which affirmative action
and reverse discrimination become the core issues. From a Zionist perspective,
the Jews, having been excluded from their homeland in the Land of Israel for
much of the past 2000 years, are entitled to the benefits of reverse
discrimination and affirmative action in resettling the land. This argument is
not mentioned in Mr. Barak's opinion, and was apparently not made directly by
the respondents, but in terms of Zionist ideology, it rings true.
Indeed, when Zionism is considered as the legitimate expression of Jewish
nationalism, and the threats to the existence and territorial integrity of
Israel are recognized, the designation of some areas for exclusively Jewish
settlement, in areas such as Nahal Irun, the Galilee, and the Negev, are
entirely justifiable. As in other cases of affirmative action and reverse
discrimination, which are clearly violations of the basic principles of
individual rights, the accomplishment of Zionist goals requires some
restrictions on equality. Despite the popularity of post-Zionism among some
secular Israeli intellectuals, the logic of affirmative action - in the spirit
of "aniyi ircha kodmim" - is compelling.
* * *
1. See Post-Zionism and the Holocaust, compiled and edited by Dan Michman,
Research Aids Series, No. 8, Faculty of Jewish Studies, Bar-Ilan University,
2. Nissim Kaldaron, Pluralists Against Their Will: On the Multiculturalism of
Israelis (Pluralistim B'al Korcham: Al Ribui Hatarbuyot shel Hayisraelim)
(Haifa: Haifa University and Zemora Beitan, 2000); see also Iris Milnir, "The
Yellow Submarine of Post-Zionism," Ha'aretz (Hebrew), 26 May 2000; Gadi Taub,
"Post-Zionism as Nostalgia," Kivunim Hadashim; Journal of Zionism and Judaism,
(Hebrew) 1:1, December 1999.
3. See Assaf Bergerfreund, "Historian Teddy Katz to Apologize for '1948
Massacre' Account," Ha'aretz, 22 December 2000.
4. Meyrav Wurmser, "Can Israel Survive Post-Zionism?," Middle East Quarterly,
vol. vi, no. 1 (March 1999).
5. Isi Leibler, "Is the Dream Ending? Post-Zionism and its Discontents - A
Threat to the Jewish Future," Institute of the World Jewish Congress,
6. Ha'aretz, 9 March 2000.
7. Joseph Algazy, "The Katzir Controversy," Ha'aretz, 3 April 2000.
8. David Newman, "A Fairer Housing Policy," Jerusalem Post, 15 March 2000.
9. Dan Izenberg, "Agency: Court Ruling Threatens Israel's Hold on Galilee,
Negev," Jerusalem Post, 9 March 2000.
10. See Hillel Neuer, "Aharon Barak's Revolution," Techelet (Azure) 3 (Winter
1998/5758); and "Israel's Imperial Judiciary," Commentary (October 1999).
11. Maariv, 9 March 2000.
12. Yair Sheleg, Ha'aretz, 14 March 2000.
13. Yoram Hazony, "Israel's Northern Exposure," New York Times, 13 June 2000.
14. Bagatz 6698/95, Qaadan vs. Israel Lands Authority, et al., para. 40a.
15. Bagatz 6698/95, 40b.
16. Bagatz 6698/95, 37.
17. Bagatz 6698/95, 7.
18. Bagatz 6698/95, 37.
20. Bagatz 6698/95, 7 and 37.
21. Bagatz 6698/95, 26.
22. Bagatz 6698/95, 10.
23. Bagatz 6698/95, 27.
24. Bagatz 6698/95, 28.
25. Bagatz 6698/95, 21, citing Shakdiel vs. Ministry of Religious Affairs.
26. Bagatz 6698/95, 23.
27. Bagatz 6698/95, 31. See also Aharon Barak, "The Role of the Supreme Court
in a Democracy," Israel Studies 3:2, based on a speech delivered at the Netanya
College of Law, 21 November 1997.
28. Bagatz 6698/95, 19.
29. Bagatz 6698/95, 37.
30. Ian Lustick, Arabs in the Jewish State: Israel's Control of a National
Minority (Austin: University of Texas Press, 1980).
31. Hillel Frisch, "The Arab Vote: The Radicalization of Politicization?," in
Israel at the Polls: 1996, edited by Daniel J. Elazar and Shmuel Sandler (Frank
Cass: London, 1998).
32. In August 2000, the High Court of Justice agreed to hear the petition of an
Arab couple from Nazareth who applied to Kibbutz Sollelim for rights to acquire
land in its new neighborhood of Nof Alonim. They charged that their application
was denied due to their race or nationality, and claimed that the conditions
for acceptance into the neighborhood - army service and eligibility for
membership in the World Zionist Organization (WZO) - were discriminatory and
intended to ensure that only Jews were accepted. Moshe Reinfeld, "Kibbutz
Denies Racism in Conditions for Acceptance into the Neighborhood," Ha'aretz
(Hebrew), 24 August 2000.
33. Bagatz 6698/95, 23.
34. See Neuer, "Aharon Barak's Revolution," and "Israel's Imperial Judiciary."
35. Bagatz 6698/95, 30.
36. For a critique of this view, see Yehezkel Dror, "Foundations for Jewish
Statesmanship," in Kivunim Hadashim; Journal of Zionism and Judaism (Hebrew)
1:1, December 1999.
37. For the Haredi community, fulfillment of the commandments associated with
the Land of Israel, rather than political Zionism, are central.
38. Amnon Rubinstein, "Who Benefits from Hadash's Radicalism," Ha'aretz, 16 May
40. Babylonian Talmud, Tractate Baba Metzia, 71:a (in the name of Rav Yosef).
41. Bagatz 6698/95, 30, based on an earlier case in which land was provided
exclusively to the Bedouin community, and this example of affirmative action
* * *
Gerald M. Steinberg is a Fellow of the Jerusalem Center for Public Affairs and
Director of the Program on Conflict Resolution in the Political Studies
Department at Bar-Ilan University, Ramat Gan, Israel.
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