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INTRODUCTION
The common manifestation of the Israeli Grundnorm (basic norm),1 the
tension between the “Jewish” and “democratic” promises, is trumped by a de
facto Grundnorm construction—an individual Jew’s right to immigrate to
Israel—when matters of Jewish immigration are implicated. Although most
basic norm analyses, absent a constitution, do not contemplate the Grundnorm
as binding,2 the Israeli Grundnorm should be treated as a binding, inviolable
principle pursuant to the Israeli Supreme Court’s frequent utilization of
Biblical principles as fundamental legal precedent.3 Under this normative
construct, the Israeli policy barring, en masse, the immigration of a
controversial group of Ethiopians with Jewish ancestry, the Falasha Mura,
should be voided as a legally impermissible contradiction of the de facto Israeli
Grundnorm.
Israel’s Law of Return is the legislative expression of the Zionistic
worldview in which the Jewish state sprung into existence: Israel is not merely
the state of its citizens but is the state of all Jews, everywhere.4 Originally
passed in 1950, two years after Israel’s Declaration of Independence and the
subsequent Arab-Israeli War, the Law of Return today states that “[e]very Jew
has the right to come to [Israel] as [a Jewish immigrant].”5 “Every Jew” who
expressly states her wish to immigrate to Israel “shall be granted” an oleh’s
visa unless the individual “is engaged in an activity directed against the Jewish
people” or will likely endanger Israel’s public health, public welfare, or
1 Johan D. van der Vyver, Constitutional Perspective of Church-State Relations in South Africa, 1999
1946).
3 See infra Part III.
4 Edward W. Said, Invention, Memory, and Place, 2 CRITICAL INQUIRY 175, 190 (2000).
5 The Law of Return, 5710–1950, 4 LSI 114 (1950–51) (Isr.); The Law of Return (Amendment), 5714–
1954, 8 LSI 144 (1954–55) (Isr.) (“Every Jew has the right to come to this country as an oleh”). “Oleh” is a
Hebrew word meaning an immigrant to Israel, derived from the word “aliyah,” meaning, roughly, “ascending.”
“Aliyah,” in reference to immigration, means the act of immigrating to Israel. HIYA DIHAN, ENGLISH-HEBREW
DICTIONARY 601, 609 (1997).
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security.6 To qualify as a “Jew” under the Law of Return, a potential oleh must
either have a Jewish mother or have converted to Judaism and must not be a
“member of another religion.”7
Born in the heart of Theodore Hertzl’s Zionist movement, the Law of
Return facially resembles other nations’ leges sanguinis, legal immigration
privileges bestowed upon individuals with specific ethnic ties who are
currently citizens of a different nation-state.8 The Law of Return distinguishes
itself from other leges sanguinis, not by its content, but by its philosophical
and narrative depth. Israel’s first Prime Minister, David Ben-Gurion, described
the State of Israel’s roots as “go[ing] back to ancient times, and . . . nourished
by immemorial springs. Its rule is confined to its inhabitants, but its gates are
open to all Jews, wherever they may be.”9 The Jewish experience—God’s
“Chosen People” bound by blood and faith to a God-given land—adds a
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.”). In regards to related rights under the Law of Return,
see also 4 LSI 114, §§ 4, 4A(a)–(b) which states that:
4. Every Jew who has immigrated into this country before the coming into force of this Law, and
every Jew who was born in this country, whether before or after the coming into force of this
Law, shall be deemed to be a person who has come to this country as an oleh under this Law.
4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality
Law, 5712-1952, 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.
4A. (b) It shall be immaterial whether or not a Jew by whose right a right under subsection
(a) is claimed is still alive and whether or not he has immigrated to Israel.
Id.
8 See, e.g., Grundgesetz für die Bundesrepublik Deutschland (federal constitution) § 116, ¶ 1 (F.R.G.)
(giving a right of citizenship to all individuals of German descent who enter Germany as refugees); see also
Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 YALE J.L. & HUMAN. 73, 77 (1997)
(“[Jus saguinis] holds that, regardless of the place of birth, nationality is acquired by descent following the
status of at least one parent.”).
9 Menachem Elon, The Values of a Jewish and Democratic State: The Task of Reaching a Synthesis, in
ISRAEL AMONG THE NATIONS 177, 192 (Alfred E. Kellermann et al. eds., 1998).
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10 DAVID KESSLER, THE FALASHAS: A SHORT HISTORY OF THE ETHIOPIAN JEWS 63–64 (Frank Cass &
Conferências “Ciência nos Trópicos” [4th Annual Science of the Tropics Lecture Series] at Instituto de
Investigação Científica Tropical [Tropical Research Institute], From Beta Israel to Ethiopian Jews: Diaspora
and Migration (Sept. 1, 2009), available at http://www2.iict.pt/archive/doc/abstractLisbonLecture090901.pdf.
16 CORINALDI, supra note 12, at 55 (viewing the term “Falasha” as an indication that Beta Israel believed
Ethiopian sources,17 Beta Israel custom revolved around the Orit, a Ge’ez
translation of the To’rah and other ancient Jewish Biblical texts.18 Like
mainstream Judaism, Beta Israel viewed the Sabbath as holy; any breach of the
community’s Sabbath provisions was a capital offense.19 In addition, the
community circumcised their young men in accordance with Jewish law, albeit
by “Falasha ritual.”20 Members of Beta Israel purified themselves in ritual
baths, similar to mainstream Jewish mikveh purification rituals.21
Beta Israel faced anti-Semitism like the rest of the Jewish world. In
Ethiopia, Beta Israel faced violent persecution. In the fifteenth century, the
Ethiopian ruler Zar’a Yaqob was known as “the exterminator of the Jews,”
cutting out tongues and proscribing books in which Jews were said to eat
children.22 When the Portuguese came to Ethiopia in the sixteenth century, the
Ethiopian Christian Church increased their antagonism of the Jewish
community.23 Severe penalties were inflicted on individuals who refused to
work on the Sabbath.24 Forced conversions were commonplace:
[A]ll the [Ethiopian Jews] . . . in the low countries immediately in the
king’s power, were ordered upon pain of death to renounce their
religion, and be baptized. To this they consented, seeing there was no
remedy. . . . Many of them were baptized accordingly, and they were
25
all ordered to plow and harrow upon the sabbath day.
In the middle of the nineteenth century, Protestant missionaries succeeded in
converting some Ethiopian Jews by deceptively declaring that “Jews all over
the world had recognized” the Messiah, Jesus Christ of Nazareth.26 After
centuries of indignities, targeted Protestant missions, mass executions, and
enslavement, one scholar estimated that the Ethiopian Jewish population had
been reduced “from a powerful tribe of one million to a vulnerable remnant of
two hundred thousand.”27
17 Id. at 59.
18 Id. at 58.
19 Id. at 60.
20 Id. at 116.
21 Id. at 74–75.
22 KESSLER, supra note 10, at 95.
23 Id. at 98.
24 Id. at 103.
25 Id. at 102 (internal quotations omitted).
26 CORINALDI, supra note 12, at 122.
27 EDWARD ALEXANDER, THE JEWISH IDEA AND ITS ENEMIES: PERSONALITIES, ISSUES, EVENTS 199
(1988).
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28 Id. at 200.
29 Id. at 202.
30 Aron Heller, Israel’s Welcome for Ethiopian Jews Wears Thin, DAILY BREEZE, Aug. 13, 2008,
com/hasen/spages/974474.html [hereinafter Israel Is Losing Its Sovereignty]. The term “Falasha Mura” is
often found with several variations in spelling, e.g., Falas’ Mura, Falashmura. See Heller, supra note 30;
Pfeffer, supra note 30.
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38 Heller, supra note 30; Israel Is Losing Its Sovereignty, supra note 37.
39 Daniel Friedman, The Case of the Falas Mura, in THE BETA ISRAEL IN ETHIOPIA AND ISRAEL: STUDIES
ON ETHIOPIAN JEWS 70, 76 (Tudor Parfitt & Emanuela Trevisan Semi eds., 1999).
40 CORINALDI, supra note 12, at 135.
41 Id.; Israel Is Losing Its Sovereignty, supra note 37.
42 CORINALDI, supra note 12, at 135.
43 Israel Is Losing Its Sovereignty, supra note 37.
44 Editorial, Just 8,700 More People and That’s It, HAARETZ, Feb. 7, 2008, available at http://www.
haaretz.com/hasen/spages/998051.html.
45 Anshel Pfeffer, Falashmura Dream of Aliyah Fades as Deadline Approaches, HAARETZ, Apr. 11,
50 Id.
51 Id.
52 Anshel Pfeffer, Ethiopian Jews to Protest Gov’t Decision to End Falashmura Immigration, HAARETZ,
available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=250387&contrassID=1&subContrass
ID=0&sbsubcontrassID=0.
56 Heller, supra note 30.
57 Id.
58 Friedman, supra note 39, at 71.
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the foundation for all other legal statements made within and in regards to any
given legal system.62
The Grundnorm of a state is often defined in the context of its constitution.
Emmerich de Vattel stated in his eighteenth century work Droit des Gens that a
constitution is “the fundamental regulation that determines the type and
manner in which the public authority should be exercised . . . how and through
whom a people should be governed, which are the rights and duties of the
governed.”63 Professor Frederick Schauer believed that the “validity of the
constitution is established by the Grundnorm, whose validity is in turn
presupposed or hypothesized as valid.”64 Kelsen’s view of the state has been
described as having an absolute normative character with no existence separate
from the law and no identity past its consistency with its own laws.65 Thus, the
validity of a constitution is based on the existence of a valid Grundnorm,
whose validity is “presupposed.”66 In practice, as a “fundamental regulation,” a
state’s constitution acts as a sort of introspective declaration of its own basic
principles.67
How then is the Grundnorm of a given state defined within the context of a
constitution? First, this section will give greater texture to the concept of
Grundnorm through an American case study and a historical-metaphysical
approach. Second, the Israeli Grundnorm will be defined theoretically, then
functionally, through the unique prism of Jewish immigration. Finally, this
section will attempt to show that the pure Jewish immigration formulation of
Grundnorm trumps the traditional formulation of the Israeli basic norm.
62 Id.
63 CARL SCHMITT, CONSTITUTIONAL THEORY 95 (Jeffrey Seitzer ed. & trans., 2008).
64 Ryan P. Farley, Comment, Ireland and Divorce: Is a Little Rebellion Now and Then a Good Thing?,
11 EMORY INT’L L. REV. 515, 521 (1997) (quoting from Frederick Schauer, Amending the Presuppositions of a
Constitution, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT 149 (Sanford Levinson ed., 1995)).
65 SCHMITT, supra note 63, at 5.
66 Id.
67 Id.
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A. The Grundnorm of a given state permeates the entire system of laws as the
most fundamental norm from which all other legal elements gain their
character. Its content is derived from a historical analysis.
The U.S. Supreme Court explored the issue of Grundnorm in the famous
case of Schneiderman v. United States.68 In Schneiderman, the United States
attempted to revoke the citizenship of the petitioner twelve years after he
received full citizenship status.69 The United States claimed that the petitioner
illegally procured his certificate of citizenship because, as a member of the
Workers (Communist) Party of America, he was in violation of the Act of
1906,70 which provided in pertinent part:
It shall be made to appear to the satisfaction of the court admitting
any alien to citizenship that immediately preceding the date of his
application he has resided continuously within the United States five
years at least, and within the State or Territory where such court is at
the time held one year at least, and that during that time he has
behaved as a man of good moral character, attached to the principles
of the Constitution of the United States, and well disposed to the good
71
order and happiness of the same.
The petitioner testified that he believed in the correctness of Marxist theories
and the principles of Lenin but did not believe in a military takeover of the
government.72 The Court was forced to answer the question: What does
behavior antithetical to the Constitution of the United States mean?73
The United States claimed that because the petitioner desired a massive
overhaul of the Constitution, he could not be attached to it.74 The Supreme
Court responded that “[t]he constitutional fathers, fresh from a revolution, did
not forge a political strait-jacket for generations to come.”75 The Court instead
stated that the main values in the Constitution that warrant “unqualified
attachment” are the guarantees in the Bill of Rights, specifically the First
Amendment guarantee of freedom of thought76 (which, the Court stated, is also
found in Article V, which regulates procedure for constitutional
77 Id. at 137.
78 Id. at 151 n.36, 157.
79 See U.S. CONST. amends. I–X; U.S. CONST. art. V.
80 See Gordon S. Wood, Thomas Jefferson, Equality, and the Creation of a Civil Society, 64 FORDHAM L.
REV. 2133 (1996); R. B. Bernstein, Rediscovering Thomas Paine, 39 N.Y. L. SCH. L. REV. 873 (1994).
81 See Grant Dorfman, The Founders’ Legal Case: “No Taxation Without Representation” Versus
knesset.gov.il/.
88 See, e.g., YAACOV S. ZEMACH, POLITICAL QUESTIONS IN THE COURTS: A JUDICIAL FUNCTION IN
Palestine, in THE HISTORY OF LAW IN A MULTI-CULTURAL SOCIETY: ISRAEL 1917–1967, at 95, 97 (Ron Harris
et al. eds., 2002).
92 Basic Law: Human Dignity and Liberty, 5752–1992, 1391 LSI 150 (1991–92) (Isr.) (amended at Basic
Law: Human Dignity and Liberty, 1994, S.H. 1454) (emphasis added). The Law states that:
1. Fundamental human rights in Israel are founded upon recognition of the value of the human
being, the sanctity of human life, and the principle that all persons are free; these rights shall be
upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State
of Israel.
1. (a) The purpose of this Basic Law is to protect human dignity and liberty, in order to establish
in a Basic Law the values of the State of Israel as a Jewish and democratic state.
....
11. All governmental authorities are bound to respect the rights under this Basic Law.
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and the fundamental human rights they encompass, shall be “upheld in the
spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.”93 Elon stated that since the enactment of the Basic Law:
Human Dignity and Liberty, Israeli courts must apply a balancing test in all
rulings and decisions; all statutes must comply with the values of a democratic
and of a Jewish state.94 More specifically, the Grundnorm of Israel is the
tension found in this Basic Law between that state’s “Jewish promise” and its
“democratic promise.”95
The Israeli Grundnorm is, on its face, a paradox. How can a state be both
wholly Jewish and wholly democratic? Does not democracy prohibit the
preferment of one group over another for the entirety of history? Much like
Oliver Cromwell’s belief that the unthinkable act of Parliament declaring itself
a permanent body would be incompatible with English constitutional
jurisprudence, the two Israeli promises are incompatible.96 The fundamental
clash of values here resembles the paradox of the divinity of Jesus Christ
presented by Søren Kierkegaard in his work Philosophical Fragments: The
Christian vision of Jesus as both man and God are wholly incompatible.97 Like
Kierkegaard’s solution to the unbreakable riddle, can one merely jump into the
Israeli Grundnorm paradox and embrace it on faith?
The “democratic promise” seems simple enough. Israeli scholars have
found “dozens of normative sources such as ‘a universal principle in every
democratic country,’ basic principles of equality, liberty, and justice which are
the heritage of all orderly and enlightened States . . . .”98 The issue presented
here is that the principles of the “democratic promise” come from a set of rules
derived from a common heritage with all enlightened states.
The limiting reagent in this amalgam must be the issue of the “Jewish
promise,” as this element makes the Israeli Grundnorm unique. Unlike
democratic principles, which radiate from around the world, Jewish principles
can only be found in the history of Judaism, the Jewish people, and the Jewish
Id.
93Id.
94Elon, supra note 9, at 180.
95 Shachar, supra note 91, at 97.
96 SCHMITT, supra note 63, at 92.
97 See SØREN KIERKEGAARD, PHILOSOPHICAL FRAGMENTS (David F. Swenson trans., Princeton Univ.
historical experience. It must be noted that in the first draft of the Basic Law:
Human Dignity and Liberty, the “Jewish promise” was absent; only after the
Basic Law had been run through the grinder of the Legislative Committee of
the Knesset was the “Jewish promise” added.99 Elon whole-heartedly endorsed
the comments of the Chairman of the Legislative Committee of the Knesset
while speaking of the phrase “the values of a Jewish state”:
The law provides . . . that we are required to follow the values of the
Jewish people . . . and of Judaism. Similarly, there is no doubt that
the term “Jewish” includes the values of the period of National
Awakening, as expressed by the Zionist movement, which led to the
establishment of the State of Israel, which in turn enacted these Basic
100
Laws.
Here, rather than descending into what “Judaism” means at its religious and
pseudo-historical roots, a discussion of Zionism as Judaism is more than
sufficient for the purposes of this Comment because Zionism is a modern
offspring of traditional Jewish values, and the Basic Law: Human Dignity and
Liberty declares that the rights found in the Basic Law “shall be upheld in the
spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.”101
C. The factual and ideological climate from which the State of Israel emerged
points to Jewish immigration as the highest functional manifestation of the
Israeli Grundnorm.
Kelsen in General Theory of Law and State noted that all legal norms are
created on the validity of other, “higher” legal norms until the analysis is
terminated at “the [Grundnorm] which, being the supreme reason of validity of
the whole legal order, constitutes its unity.”102 Because the Grundnorm is
presupposed as valid,103 a non-legal analysis is required to determine its
content. Looking to the U.S. Supreme Court’s analysis in Schneiderman for
guidance, it is clear that an historical examination into the circumstances and
ideology surrounding the birth of a state is absolutely fundamental to the
104 See Schneiderman v. United States, 320 U.S. 118, 135 (1943) (“We agree with the statement of Chief
Justice Hughes . . . that the behavior requirement is a general phrase which should be construed . . . in accord
with the theory and practice of our government in relation to freedom of conscience.”).
105 Genesis 12:1–2, 15:18.
106 Joshua 1:2–3.
107 Exodus 3:8.
108 See 1 Kings 8:10–11.
109 Isaiah 1–3; Jeremiah 6, 11:10–13 (“[T]he house of Israel and the house of Judah have broken my
covenant which I made with their fathers. Therefore, thus says the LORD, behold, I am bringing evil upon them
which they cannot escape . . . .”).
110 2 Kings 24:10–17, 25:8–12; Louis Rene Beres, Response to John Quigley, 12 AM. U. J. INT’L L. &
111 Rabbi Burton L. Visotzky, The Myth of Divine Law in Secular Society, 51 DEPAUL L. REV. 1061, 1065
(2002); see also FLAVIUS JOSEPHUS, THE JEWISH WAR (E. Mary Smallwood ed., G. A. Williamson trans.,
Penguin Books 1984) (75).
112 Sharon Harzenski, Terrorism, a History: Stage One, 12 J. TRANSNAT’L L. & POL’Y 137, 140 n.17
(2003).
113 JAY Y. GONEN, A PSYCHOHISTORY OF ZIONISM 18 (1975).
114 Id. at 31.
115 Id. at 42.
116 MICHAEL PRIOR, ZIONISM AND THE STATE OF ISRAEL: A MORAL INQUIRY 3–4 (1999).
117 Eliezar Ben Yehuda, The Revival of Hebrew, in ZIONISM: PROBLEMS AND VIEWS 115, 115 (Paul
the State of Israel and the importance of immigration to this end has a legal
history that predates the existence of the state itself. In 1917, during British
rule of Palestine, the famous Balfour Declaration, a letter from Arthur Balfour
to Lord Rothschild, stated the British position on the future existence of a
Jewish state:
His Majesty’s Government view with favour the establishment in
Palestine of a national home for the Jewish people, and will use their
best endeavours to facilitate the achievement of this object, it being
clearly understood that nothing shall be done which may prejudice
the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any
120
other country.
In 1922, the Council of the League of Nations then stated that the British King
was responsible for securing the establishment of the Jewish state in
Palestine.121
In 1939, after years of Jewish and Arab conflict and Jewish agitation and
terror campaigns against British Rule, the “White Paper” declared that,
because 450,000 Jews had already settled in Palestine under the British
Mandate, Jewish immigration would be limited to 75,000 for five years and
later only by Arab consent.122 Speaking on the White Paper, Justice Brandeis
of the U.S. Supreme Court declared that Great Britain assumed a legal
obligation which was the basis for the Jewish state construction in Palestine
and that the legal right could not be undone for “private advantage.”123 Even
Winston Churchill declared at the House of Commons in May 1939 that the
White Paper was “a plain breach of a solemn obligation.”124 In these formative
years, Jewish immigration was inexorably linked to the creation of the state.125
The Holocaust was the most extreme and horrific episode in the ancient
saga that forms the basis for the practical and humanitarian justifications for
the necessity of the Jewish state: an escape from violent, near-universal anti-
120 Letter from Arthur James Balfour, British Foreign Secretary, to Lord Walter Rothschild (Nov. 2,
History/paper39.html.
123 LOUIS D. BRANDEIS, BRANDEIS ON ZIONISM: A COLLECTION OF ADDRESSES AND STATEMENTS BY
126 See DANIEL JONAH GOLDHAGEN, HITLER’S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE
Prophet Muhammad as declaring that “[t]he Hour shall not occur till the Muslims fight the Jews, and the
Muslims will kill them so much so that the Jews will seek shelter behind stones and trees and the stones and
trees will proclaim ‘O Muslim! O servant of Allah! this is the Jew behind me. So come and kill him’ . . . .”);
see also Ilya Feoktistov, Preaching Hatred at Dartmouth, DARTMOUTH, June 29, 2004, at 4.
128 See, e.g., WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 2, sc. 8 (mocking Shylock “[a]s the
dog Jew did utter in the streets: ‘My daughter! O my ducats!”’ among other, seemingly senseless slanders).
129 See, e.g., Matthew 27:25 (describing the Jews as declaring “[Jesus’] blood be on us and our
children!”).
130 MICHAEL ALPERT, SECRET JUDAISM AND THE SPANISH INQUISITION 11 (2008).
131 See BREGMAN, supra note 125, at 40, 44.
132 van der Vyver, supra note 1, at 671.
133 Shachar, supra note 91, at 248.
134 Friedman, supra note 39, at 194.
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The Law of Return states that every Jew has a right to immigrate to
Israel.135 This right stems from the fact that Israel, both in development and
practice, views itself as the one and only state that represents the Jewish
people. In Ben Shalom v. Central Elections Committee, the Israeli Supreme
Court ruled that, given the factors which led to the creation of the State of
Israel, an individual cannot run for office “if [his] goals and actions explicitly
or implicitly negate the existence of the State of Israel as the state of the Jewish
people.”136 This view of Israel as the state for all Jews was reemphasized by
two specific government actions: (1) the capture and trial of Adolf Eichmann
for crimes committed against the Jewish people, not against the state137 and
(2), as previously noted, the daring extraction operations of the Beta Israel in
the 1980s and 1990s.138 This worldview of Israel was best expressed by the
Former Israeli Prime Minister David Ben Gurion, who stated that “[t]he Law
of Return is a foundation stone for the laws of the State of Israel. It reflects the
central goal of our state—the in-gathering of exiles . . . . [T]hat right is part of
the natural heritage of every Jew, if only he desires to join in the settlement of
the land.”139 If Israel speaks for all Jews, then the Law of Return grants a right
of immigration to all Jews, wherever they may be.
Furthermore, from a very realistic standpoint, the principle of the
ingathering of exiles upon which the Zionistic Jewish immigration paradigm
stands is, in actuality, the foundation of the Israeli state. Without the Zionistic
impetus to return to the Promised Land and the evident necessity to escape
virulent anti-Semitism, the State of Israel would not exist as it does. The
territory of Palestine held only a smattering of Jews before the birth of modern
Zionism.140 Following waves of immigration between the years 1941 and
1950, a time span encompassing the Declaration of Independence of the State
of Israel, the Jewish population rose from approximately 470,000 to
approximately 1.2 million.141 The State of Israel in 2005 had over 5.5 million
142 Population, by Religion, 60 STAT. ABSTRACT OF ISR. 88 tbl. 2.2 (2009), available at
http://www1.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab=st02_02&-CYear=2009.
143 SEGEV, supra note 140, at 113.
144 See id.
145 See Shachar, supra note 31, at 243–44.
146 Id. at 242.
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These clauses teach us several things. First, the retroactivity of the law shows
the strength and primacy of the Law of Return itself. Secondly, the use of the
singular, yet unlimited, phrase “every Jew” shows that the determinations of
the validity of an oleh’s status are both individual, yet unlimited, even by
death.152
This Part will begin by defining an oleh’s rights under the Law of Return as
an individual’s choice to freely associate with the Jewish people: a choice
borne of that individual’s own volition. Next, this Part will show numerous
historical and anecdotal accounts regarding how both individual members and
a group of Falasha Mura were in one way or another denied or hindered in
their desire for free association. Lastly, this section will attempt to show that
denying oleh status to an individual member of the Falasha Mura under the
Law of Return due to the State of Israel’s perception of the Falasha Mura as a
whole is irreconcilable with the de facto Israeli Grundnorm of Jewish
immigration by individual right.
A. An individual’s right to oleh status under the Law of Return requires a free
association with the Jewish community defined by personal choices.
The determinative issue for the Falasha Mura rests in Section 4B of the
Law of Return which states that “[f]or 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.”153
It must be noted that Section 4B did not exist in the original versions of the
Law of Return. In the case of Shalit v. Minister of Interior, the Supreme Court
of Israel decided whether the Halakhic definition of a Jew, as born from a
Jewish mother, applied in regards to the citizenship benefits of the Law of
Return when only the father of the child was Jewish.154 The Court held that the
government did not have the legal authority to determine the religious
affiliation of any given individual.155 It held that “the only relevant criterion
was a person’s bona fide statement of such an affiliation.”156 However, in
response, the Israeli Knesset amended the Law of Return to include the current
the Supreme Court of Israel: Special Volume 35-191 (Asher Felix Landau & Peter Elman eds., 1971); see
Shachar, supra note 31, at 245 n.72.
155 See Shachar, supra note 31, at 245.
156 Id.
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B. There are numerous accounts that many Falasha Mura were denied the
ability to freely associate with the Jewish community at large due to severe
external pressures.
The Israeli government has recognized the Jewish heritage of the Falasha
Mura. The Jewish Agency and the Falasha Welfare Association of England
took a census of Beta Israel villages in 1976, supervised by Gershon Levi.163
The census did not take into account any statistics of Falasha Mura villages,
instead referring to the Falasha Mura as “non-practicing Falasha.”164
How then is “free association” defined relative to the Falasha Mura? They
are clearly descendents from the same clan as the Beta Israel who “converted”
157 Id.
158 The Law of Return (Amendment No. 2), 5730–1970, 24 LSI 28, § 4B (1969–70) (Isr.).
159 See id.
160 ELMER BERGER, JUDAISM OR JEWISH NATIONALISM: THE ALTERNATIVE TO ZIONISM 38 (1957).
161 Id.
162 EMMA KLEIN, LOST JEWS: THE STRUGGLE FOR IDENTITY TODAY 109 (1996).
163 CORINALDI, supra note 12, at 130.
164 Id.
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165 Michael Corinaldi, Protecting Minority Cultures and Religions in Matters of Personal Status Both
Within State Boundaries and Beyond State Frontiers – the Israeli System, in FAMILIES ACROSS FRONTIERS 390
(Nigel Lowe & Gillian Douglas eds., 1996).
166 CORINALDI, supra note 12, at 120 (citations omitted).
167 Id. at 123.
168 Id.
169 Id. at 124.
170 Id.
171 Id. at 125.
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time when the Ethiopian Jewish communities’ walls were crumbling around
them, their heritage and knowledge was in the process of being destroyed, and
community members were dying, while external pressures to convert
abounded.
Jacques Faitlovich, in 1905, stated that “the tyranny of the missionaries and
of an ignorant clergy, supported by the violence of the chiefs” brought about
the conversion of many Ethiopian Jews to Christianity.172 He described a
situation where chiefs would treat the Jews inhumanely, forcing them to erect
churches, eat forbidden meat, and work on the Sabbath.173 Faitlovich noted the
desire of many to return to practicing Judaism and the counteracting penalty
for reversion:
I was able to notice . . . how many [Falasha Mura] do in fact wish to
return to the cult of their fathers, and how much they are hampered
by . . . chiefs who act under the influence of the Orthodox clergy.
Such chiefs punish them, rob them, confiscate their possessions,
174
abduct their women and children.
It should be noted that these observations by Faitlovich were taken down
several decades before the establishment of the State of Israel and almost one
century before any “free ticket to Israel” could have been considered by the
Falasha Mura as a realistic possibility.
The reign of Haile Selassie I later brought new pains upon the Jews due to
his policy of “Amharaisation.”175 Amharaisation was a “cultural
subjugation . . . which accorded the Amhara culture pride of place as a national
culture” within the Ethiopian state and resulted in many Falashas being
converted to Christianity.176 Although more controversial,177 there are
individuals who contend that some 15,000 Ethiopian Jews led a “double life,
secretly maintaining the traditions of the [Jewish] community.”178 If these
accounts are true, living a double life—with the outward appearance of a
172 Id.
173 Id.
174 Id. at 126–27.
175 Id. at 127.
176 BERTUS PRAEG, ETHIOPIA AND POLITICAL RENAISSANCE IN AFRICA 65 (2006); see KESSLER, supra
BETA ISRAEL IN ETHIOPIA AND ISRAEL: STUDIES ON ETHIOPIAN JEWS, supra note 39, at 58 (“[V]arious pro-
Falasha organizations attempted to place the Falashas in the arena of world Jewry by exaggerating the impact
that the [Italian] occupation had on Beta Israel . . . .”).
178 CORINALDI, supra note 12, at 128.
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Christian and the internal, spiritual life of a Jew—would demonstrate the near-
impossibility for free association with the Jewish community.
It was well known that many of the Falasha Mura followed the practices
and traditions of Judaism to some extent and formed a community apart from
the Ethiopian Christian majority. In the middle of the twentieth century, it was
noted that intermarriage and family relationships were maintained and
continued between the Falasha Mura and Beta Israel, while such relations
between the Falasha Mura and Ethiopian Christians were rare.179 The
Ethiopian Christians were “aware” of the fact that many Falasha Mura
“follow[ed] the traditions of [their] fathers” and, thus, rejected them as
members of their own community.180
Given the historical and anecdotal evidence available regarding individual
members of the Falasha Mura community and their choice, or lack thereof, to
freely associate with the Jewish community at large, it is possible to see how
many Ethiopian Jews would be denied their birthright to immigrate to Israel as
an oleh under the Law of Return due to Israel’s policy of denying these rights
based on group identity.
C. The Israeli government’s policy of placing all Falasha Mura into one
common group for the purpose of denying oleh status under the Law of
Return is incompatible with the de facto Israeli Grundnorm of Jewish
immigration by individual right.
In 1991, Prime Minister Yitzhak Shamir appointed Eliakim Rubenstein to
head what became known as the “Rubenstein Committee” to decide whether
any Falasha Mura could claim a right of immigration under the Law of
Return.181 The Rubenstein Committee reported that the Falasha Mura became
Christian converts “[n]ot by force or under duress, but voluntarily, prompted
by the desire to improve their social and economic standing within the
Ethiopian society.”182
In this context, the Israeli classification of a large group of individuals as
having one categorical motivation for conversion is most problematic. The
Law of Return states that “[e]very Jew” shall have the benefits of the Law of
179 SIMON D. MESSING, THE STORY OF THE FALASHAS: “BLACK JEWS” OF ETHIOPIA 98 (1982).
180 CORINALDI, supra note 12, at 128.
181 Id. at 133–34.
182 Id. (quoting RUBENSTEIN REPORT (1991), reprinted in MENAHEM WALDMAN, FROM ETHIOPIA TO
JERUSALEM 243–49 (1992).
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Now, imagine that there was another larger segment of the Jewish
population in fourteenth and fifteenth century Spain that was subjected to
persecution but were not forced, per se, to convert to Christianity; instead, this
group converted to Christianity to improve their social influence and living
conditions. Would a member of the former Jewish community, who was forced
to be baptized into the Christian faith on pain of torture or slavery and who
ceased to publicly act like a Jew, really be considered a “member of another
religion” under the Law of Return? Would such a person be said to have
forfeited her birthright? Would a Spanish Jew during the Inquisition who held
personal Jewish beliefs but was a descendent of those who were forced to
convert be excluded under the Law of Return? If the Falasha Mura test
presently applied by the State of Israel is at all instructive, the answer to all of
these questions is a resounding “Yes.”
This cannot possibly be the result intended under the Law of Return, a law
rooted in religious traditions of personal fulfillment of an individualized
spiritual journey imbedded in the larger framework of the Jewish nation. Just
as the Prophet Isaiah could not be considered as blameworthy, under any moral
or normative standard, as those to whom he prophesied,190 one cannot be
excluded from a birthright based on the external perception of the beliefs,
motives, and practices of those around her.
Given that one of the strongest roots of the moral justification of Zionism
and the creation of the Jewish state has been global anti-Semitism, the
exclusion of Falasha Mura who lived like Christians but who profess to feel
Jewish at heart191 is a gross contradiction of the de facto Israeli Grundnorm of
Jewish immigration by individual right and should be considered invalid as
being irreconcilable to the entire ethos of the nation.
who had converted to Christianity and who now wished to immigrate to Israel
as either “anusim, or forced converts (evoking the Fifteenth-century Iberian
conversos), or as mitnazrim, voluntary Christianizers.”192 In the end, the Israeli
media called them “Felashmura,” a term essentially meaning “Falasha who
exchanged his religion,” as it was considered a more neutral term.193 Professor
Don Seeman viewed the battle over the nomenclature as significant:
The difference between anusim and mitnazrim is a difference
between victims of catastrophe, who are in principle deserving of
“Jewish solidarity” (in the words of one expert witness to the 1994
interministerial committee), and traitors for whom the State of Israel
bears little or no responsibility. . . . [Voluntary] [c]onverts and their
descendents were portrayed as individuals who had abandoned their
people for personal gain during periods of persecution. This was
significant because although apostasy as a religious sin may be
canceled by repentance, . . . this kind of secular apostasy is a stain
from which [voluntary] converts and their descendents may never
194
recover.
Although the neutral term “Falasha Mura” was chosen, the debate surrounding
the naming of the group exhibits two important issues: the importance of
individual intent and purpose in conversion and the inherent dangers of group
characterization.
In the end, considerations for upholding the basic principle upon which the
state rests must trump all concerns that some Falasha Mura, if granted oleh
status under the Law of Return, will arrive in Israel as “unwanted ‘economic
refugees,’”195 or as anusim. According to Hans Kelsen, because the
Grundnorm of a state is permanent and inviolable, only a revolution that
changes the essence of the state will bring about its alteration.196 However,
while the concept of Grundnorm is one formed in a purely positivist
construct,197 it is not necessary to follow it to its final, legal positivist end. Here
is the point of divergence for Kelsen:
192 Don Seeman, Agency, Bureaucracy, and Religious Conversion: Ethiopian “Felashmura” Immigrants
in Israel, in THE ANTHROPOLOGY OF RELIGIOUS CONVERSION 29, 33 (Andrew Buckser & Stephen D. Glazier
eds., 2003).
193 Id.
194 Id. at 33–34.
195 Id. at 33.
196 KELSEN, supra note 61, at 118 (stating, in reference to one hypothetical revolution, that “[i]t is no
longer the norm according to which the old monarchical constitution is valid, but a norm according to which
the new republican constitution is valid, a norm endowing the revolutionary government with legal authority”).
197 Id. at 116.
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That a [Grundnorm] is the basic norm of the national legal order does
not imply that it is impossible to go beyond that norm. Certainly one
may ask why one has to respect the first constitution as a binding
norm. The answer might be that the fathers of the first constitution
were empowered by God. The characteristic of so-called legal
positivism is, however, that it dispenses with any such religious
198
justification of legal order.
While positivists such as Kelsen may not recognize as valid a religious
justification of legal order (although implicitly admitting that such a
justification could be considered valid under a different philosophical regime),
the State of Israel clearly has. In the case of State of Israel v. Guetta, Israeli
police officers performed a full body search, stripping the defendant naked in
public.199 The Supreme Court held that the removal the defendant’s clothing in
public was an illegal act, stating:
The infringement of “human dignity” signifies the humiliation or
denigration of the image of God in man. . . . The Halakhah
strenuously objects to humiliation or denigration of the image of God
that is in man . . . there is no difference between the denigration of
God’s image in a fellow human and the denigration of God’s image
200
in oneself.
The fundamental belief in man’s creation in the image of God comes from the
first chapter of Genesis, where “God created man in His own image; in the
image of God He created him; male and female He created them.”201 As such,
Israeli law allows, if not demands, that powerful religious and Biblical
principles form the basis for its judicial decisions.202
According to judicial precedent, the State of Israel does not have the power
to restrict the immigration of any individual who qualifies as an oleh under the
Law of Return.203 As the Supreme Court may use Biblical law in deciding the
merits of the cases within its jurisdiction, the de facto Israeli Grundnorm of an
individual Jew’s right to immigrate to Israel may be considered a “binding
198 Id.
199 CrimA 2145/92 State of Israel v. Guetta [1992] IsrSC 46(5) 704, reprinted in Elon, supra note 9, at
194–95.
200 Id.
201 Genesis 1:27.
202 Elon, supra note 9, at 194–95.
203 Cf. HCJ 7052/03 Adalah v. Minister of Interior [2006] IsrSC 1, 114 (“[I]ndeed, I accept that every
state, including the State of Israel, may determine for itself an immigration policy. Within this framework, it is
entitled to restrict the entry of foreigners (i.e., persons who are not citizens or immigrants under the Law of
Return) into its territory.” (emphasis added)).
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norm,” in that its philosophical basis originated from God (and His covenant
with Abram).204 As the Supreme Court of Israel has the power to overturn the
laws and acts of the Knesset,205 the Supreme Court should overturn all official
Knesset declarations, executive decisions, and legislation which would hamper
the possible aliyah of any of the Falasha Mura who would qualify on an
individual basis.
In reference to the Falasha Mura’s “Return to Judaism,” the conversion to
Orthodox Judaism required under the Law of Entry, Professor Don Seeman
stated that Israeli authorities functioned as “religious gatekeepers,” noting “the
agents of the state construct plausible narratives of human motivation and
circumstance in order to determine who benefits, and how, from the protective
network of state and international law . . . .”206 As such, it is imperative that
such a “religious gatekeeper” paradigm not only apply to determine the “purity
of heart”207 of those who wish to re-convert to Judaism, but also to determine
the validity of the individual’s claim that she has never truly left Judaism by
her own volition. The traditional Orthodox Jewish response to penitents is to
show flexibility “so as not to lock the door before those who return . . . .”208 If,
in the process, many of the Falasha Mura who left Judaism for personal gain
subsequently re-convert and are let into Israel, the benefit of those few whose
valid birthright will be redeemed will outweigh all harms through the legally
unsurpassable value of affirming the Grundnorm of the state.
CONCLUSION
The common formulation of the Israeli Grundnorm—the tension between
the Jewish and democratic promises—should be considered trumped in all
matters relating to Jewish immigration by a de facto Grundnorm: an individual
Jew’s right to immigrate to Israel. In the case of the Falasha Mura, the State of
Israel’s policy mandating the absolute exclusion of all individuals deemed to
be members of the Falasha Mura community from the rights of an oleh under
the Law of Return is a clear violation of the de facto Grundnorm. In response
to this violation, the Supreme Court of Israel should void all government
(2009).
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DAVID D. DAY∗