In Israel, It’s 1984

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With an twist of phrase that would have done George Orwell proud, Israeli Supreme Court President Dorit Beinisch rebuked those proposing Knesset legislation to restrain the Court, calling the proposed legislation “a direct blow to the democratic character of the State of Israel, a blow to the substantive democracy that has been built here and is the pride of the state.”

The Knesset, of course, is elected by the population of the State of Israel. The Supreme Court, by contrast (and it is practically alone among High Courts in the civilized world in this regard) exercises near-total control of the selection of its new members. Thus the Court does not represent a balance between diverse perspectives within the populace — it represents only itself. It is, by a vast margin, the least democratic of all branches of government in Israel. It also exercises greater power than the other branches; as the State proudly declares on its web site:

The Supreme Court also sits as the High Court of Justice. This function is unique to the Israeli system because as the High Court of Justice, the Supreme Court acts as a court of first and last instance. The High Court of Justice exercises judicial review over the other branches of government, and has powers “in matters in which it considers it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal.” As a High Court of Justice, the Supreme Court hears over a thousand petitions each year. [emphasis added]

The Court can self-select when it considers a matter relevant. It can override the legislature, State and local authorities and their officers, and the religious courts. It also continuously demonstrates a left-wing, secular bias in its decisions — no wonder that the Court and the leaders of the left are in an uproar at the prospect of someone forcing the Court to behave in a matter more consistent with its role in a Western democracy.

Hat Tip: Bill

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24 Responses

  1. Ori Pomerantz says:

    Loberstein, I think that Israel will be a sideshow in a much bigger kulturkampf. All over the western world secular elite groups are contracepting themselves out of existence. The people who breed tend to be a lot more religious, and typically poorer.

  2. Loberstein says:

    Many years ago there was a lecture at YU by Dr Yosef Burg on the topic of is there a kulturkampf in Israel. At the time I was in high school and had no interest in attending. However, there is such a war in Israel on what Israel as a state stands for. The ashkenasi elite feel threatened by the mizrahim and the chareidim who multiply and are outnumbering them . If they lose the court, they feel that Israel will go down the tubes. Who really knows how this will play out? Omert and Netanyahu also don’t want the darker Jews, either skin or clothing, to take over.They are as secular as the Supreme Court justices.

  3. Bob Miller says:

    “Ori: What does “all” mean? Do you think that at any time prior to Mashiach you’ll get 100% of Israelis, or even of Jewish Israelis, to accept such a theocracy? Or is it a matter of getting a sufficiently high majority?”

    If we manage to get our act together (possibly a really “high majority” will suffice), Mashiach will arrive that much more quickly. In any event, at some point before or after he arrives, all (meaning all!) will see the need for his rule.

  4. Ori Pomerantz says:

    Bob Miller: Once we as a people raise our Torah consciousness and level of mitzvah practice sufficiently, we’ll all deserve and welcome such a theocracy.

    Ori: What does “all” mean? Do you think that at any time prior to Mashiach you’ll get 100% of Israelis, or even of Jewish Israelis, to accept such a theocracy? Or is it a matter of getting a sufficiently high majority?

    A republic with an effective bill of rights would be ideal, IMHO.

  5. Bob Miller says:

    We do not need to be defensive about advocating the establishment of a Torah-directed “halachic theocracy” in our land in due course. Once we as a people raise our Torah consciousness and level of mitzvah practice sufficiently, we’ll all deserve and welcome such a theocracy. Right now, we’re clearly still in the consciousness-raising stage and need to manage our affairs through representative government in the form of a republic with an effective bill of rights.

    Israel’s form of rule today, a thoroughly corrupt, irresponsible, incompetent secular oligarchy poorly concealed by democratic trappings, is wrong both now and later.

  6. Ori Pomerantz says:

    Rabbi Yaakov Menken,

    I agree that Dorit Beinisch is being dishonest in calling her own position of unelected power democratic. If she were more honest, she’d probably make the claim that a position like hers is necessary to prevent one of the known failure modes of democracy: power-grab by a demagogue who is popular during a specific crisis and refuses to hand power back afterwards. She either doesn’t recognize the threat of degenerating into an aristocracy, doesn’t think it applies in this case, or doesn’t care.

    My own political tendency, BTW, is libertarian. I don’t care about the exact mechanism used to come up with government decisions. What I care about is keeping the decisions about my life with me and my loved ones rather than giving too many of them over to the government. Being that, I have great respect to the Charedi system, especially in the US where there is no government budget or threat of conscription involved.

    However, that current system is based on not having access to coercive power. Why do you think that an Orthodox majority in the Knesset will not lead to a Halachic theocracy? If you believe that all of Israel vouchsafe for each other, doesn’t that mean that if any Jew sins you might be punished for it? If you believe you might be punished for my sins, doesn’t it follow you have the right to stop me from committing them? Or from teaching my children to follow in my footsteps?

    I stand corrected about the Satmar position on settling the land of Israel. Thank you.

  7. Yaakov Menken says:

    Ori,

    Honesty is underrated. Pretending that Israel’s Supreme Court is democratic is the way that Israel’s Ashkenazi, secular left prevents the stream of calls for change from becoming a torrent.

    FWIW, the authority of Gedolei Yisroel is given in democratic fashion. You don’t have to be charedi if you don’t want to. I don’t know that the Sanhedrin was ever able to have power without popular consensus (by contrast to the Kings), but I may be forgetting an obvious counter example in the Nevi’im (Prophets). In any event, I very much doubt that an Orthodox majority in the Knesset would lead to an Halachic theocracy that imposed its will upon the private behavior of individuals.

    At the risk of sounding snarky, you don’t really believe in democracy either. None of us do. To believe that one man, one vote is the ideal, you must believe that you are personally no more capable of selecting our next leader than the least educated in our society. One third of Americans cannot identify the governor of their home state, and nearly two-thirds do not know the name of Russia’s President. [Contrary to popular opinion, George W. Bush is not in the latter group.] A Presidential candidate’s hairstyle, smile, jingle and advertising budget are of vastly greater importance than his or her policy positions.

    The current Halachic system, in practical application, is a loosely-governed Hierarchy of expertise. Yes, there are differences of opinion (although settling the Land of Israel is not one of them, as tens of thousands of Satmar chassidim residing there can readily attest), but at least everyone agrees upon what defines an expert, and while each generation does point to its successors, those successors must be ratified by the public in order to have any authority. We subscribe to the process, and whether or not we may have a gripe with individual decisions, we recognize that we are getting the best leaders we can.

  8. Calev says:

    One could be forgiven for thinking that even the greater rabbonim of this generation are not necessarily best equipped for handling the politics of governance of a society that is mostly not sympathetic towards them.
    On the other hand, these same rabbonim – and Torah observant Jews generally – have not only the right but the obligation to be involved in the Israeli political process. Politics is a dirty business, irrespective of the state machinery, and how closely involved religious people may want to be involved is a moot point. At the very least we should be organised on a pressure group level in order to bring Torah values and the interests of the observant communities into the debate.
    I agree that having direct representation – on a constituency basis – would be a huge advance for the Knesset. Having such MKs elected by the British first past the post system would bring stability to government. The fact that a majority government can be elected on a minority of total votes cast is a problem that could be offset by introducing a bi-cameral parliament with the upper house of review elected by a form of proportional representation. This upper house could also include a minority percentage of life seats alloted to the “great and the good”. And, for good measure, the elections could be fixed (easier to do if governments are not shaky coalitions, although there would have to be provision for a government losing a vote of confidence and emergency/crisis situations) – every seven years for the upper house to reflect the shmitta cycle and, barring exceptional circumstances, every five years for the lower house.

  9. Ori Pomerantz says:

    Bob Miller, sorry it took me so long to answer you. It was a difficult issue to think about (thank you for that). I can’t look into the judges’ minds, but I suspect they have some guiding principles that they follow, and once they come to a decision they find the excuses to justify it. From the outside, where you can see only the excuses, it would look completely arbitrary.

    Parts of Halacha also looks like that from the outside. How would an ignorant objective observer know, for example, if it’s a Mitzvah to settle Israel (as per the Chazon Ish), or if it’s an Aveirah (as per the Satmar Rebbe)? They both follow the same texts and principles, in theory. I’m sure you can find other big arguments.

  10. Ori Pomerantz says:

    Yirmeyahu, the Taliban are an extreme case. I think that a Jewish theocracy is likelier to be like Nehemia. Not as violent, but still enforcing its laws with force. Nehemia 13:23-24 – “כג גם בימים ההם, ראיתי את-היהודים השיבו נשים אשדודיות (אשדדיות), עמוניות (עמניות), מואביות. כד ובניהם, חצי מדבר אשדודית, ואינם מכירים, לדבר יהודית–וכלשון, עם ועם. כה ואריב עמם ואקללם, ואכה מהם אנשים ואמרטם; ואשביעם באלהים, אם-תתנו בנתיכם לבניהם, ואם-תשאו מבנתיהם, לבניכם ולכם. ”

    The reason I chose those specific examples, BTW, is because IIRC they have been political issues in Israel when I lived there (I left in 1998). Obviously “non-religious” folk found them to be some purpose – the leaders of both Likud and Avoda (labor, any relationship to Avodat Hashem purely incidental) needed the religious parties for their coalitions.

    HILLEL, I don’t expect people to be perfect. I am trying to investigate alternatives (I’m here, after all), but I admit I’m not spending that much time and energy on it. In my defense, all the alternatives that seem likely say I am obligated to take care of my family, which includes a job as well as childcare – so I give those tasks priority.

    BTW, did you look into all the alternatives (Atheism, the three main branches of Christianity, the two main branches of Islam, etc.)? Did you look into all the alternatives within Judaism, or even Orthodox Judaism? I don’t think I could investigate all the alternatives thoroughly, but you might have more energy than I do.

  11. HILLEL says:

    ORI:

    I see that you’re looking for perfection, and if someone doesn’t come up to your standards–if you find the slightest blemish–you will use that as an excuse to remain ambivalent.

    There is no perfection in this world. It’s a work in progress, on purpose.

    You’ve got to thoroughly investigate the alternatives, with respect to character and track record, and make a decision.

    Anything less is a cop-out!

  12. Bob Miller says:

    Ori,

    I have the sense that the justices are often winging it, piecing together learned justifications or even “principles”, with however many footnotes, as a smokescreen.

    In contrast, the true way of halacha has integrity. Poskim don’t have license to distort it to justify their own prior positions.

  13. Yirmeyahu says:

    Ori,

    Any sociological group can deviate from its basic ideology to the point it becomes unrecognizable (Quaker militants), but barring that I do not see the Chareidi community having what it takes to impose a theocracy…all ad hominem Taliban comparisons aside. We have our crazies and I can see how we can be accused of not keeping them in check, but a community who reveres Sages who removed themselves from being able to execute murderers when they became too rampant is going to be restrained about exercising power.

    Regarding Shabbos/Kashrus laws etc., first of all I do not think they are unreasonable for a state which claims to be Jewish. Furthermore, there are already restrictions along those lines and they are only possible because “non-religious” folk find them to have some purpose/benefit.

    I have a few more thoughts but I had probably let them alone for now.

  14. LAWRENCE KAPLAN says:

    I agree with Yaakov Menken. (See, I don’t disagree with you about everything!) Granted, a supreme court is necessary to protect the people’s basic liberties, but given that justices are unelected: 1) there ought to be some sort of external control by the elected bodies of goverment; and 2) the justices should exercise some self-restraint and avoid being overly ideological. Neither even begins to obtain in Israel. IIRC, there was a very good article about this some while back in Commentary by Hillel Neuer.

  15. Ori Pomerantz says:

    Bob Miller, you’re right but not completely. I’m pretty sure that if you asked Dorit Beinisch, she’ll be able to tell you the principles that guide her – just like a Torah sage will be able to tell you the main principles of the Torah. She might even be able to point out the precedents that will guide her.

    Her texts are not as detailed as the Torah, Mishnah, Gmara, Shulchan Aruch, the various Shu”ts, and the commentaries thereof – but it’s because she comes from a younger intellectual tradition, not necessarily because she doesn’t have limits.

  16. Ori Pomerantz says:

    HILLEL, claiming Divine Revelation does not guarantee good government. The Crusader Kingdoms claimed to follow Divine Revelation, as does the Hamas (may it join the Crusader Kingdoms bimhera beyameynu). Dorit Beinisch, for all her faults, doesn’t have the same rivers of blood on her hands. Having Divine Revelation is a different thing, but to accept that I’d have to accept the Rambam’s 8th principle, that the Torah we have now is an accurate transmission of what G-d gave Moshe.

    It may be unfortunate, but while I have read many inspirational articles here, on torah.org and on aish.com, I am yet to see evidence to convince me of that principle. Lacking it, I can only see a self proclaimed elite rather than a divinely ordained one. Hence my ambivalence.

    Yirmeyahu, in previous generations Gdoley Israel may have not wanted a state, but the state is there now and it cannot be dismantled without bloodshed. This means that this generation’s Gdoley Israel have to deal with having a state with its coercive power. Would this generation’s Gdoley Israel use such political power to enforce Halacha had they had it? To make the question more concrete, would they use the political power they do have to attempt to forbid the sale of pork or public transportation on Shabbat? IIRC their followers in the Knesset have already attempted the first and fought against the introduction of the second.

  17. Bob Miller says:

    Regarding Comment by Ori Pomerantz — August 29, 2007 @ 8:24 am :

    A halachic state, while not a form of democracy as we know it, is subject to Torah rules imposed on everyone, the ruling elite included. In such a system, Gedolei Yisrael are not free to fashion their own substitutes for halachic law. The ancient kings in this system were intended to be, in effect, constitutional monarchs, and even their expanded powers under martial law were not unlimited.

    The above is nothing like the arbitrary rule Israel’s ruling elite has attempted in the absence of constitutional guarantees.

    Regarding Comment by Calev — August 29, 2007 @ 7:18 am :

    Someone should take a hard look at reorganizing the Knesset to have members selected by district and not at-large, to finally create some accountability. However, even election by district can be problematic if gerrymandering is allowed to politicize district boundaries.

    I’ve noticed that some smaller parties have opposed election by district, fearing a loss in their representation, but their power in today’s government is mostly an illusion anyway.

  18. Yirmeyahu says:

    “Dorit Beinisch is a bit less honest and a bit more successful. An a member of neither group, I don’t see a huge difference otherwise.”

    The difference is that the State gets a great deal of assistance/support from the US because it is a “democracy”, at the same time it seems the “Judaic” tradition which is the source of much of the goodwill of Americans is disdained by many elite.

    The Gedolei Yisrael did not seek to build a State so they could impose their will on those who disagree. Rather the traditional approach that “Statehood” is to follow consensus on Torah.

  19. HILLEL says:

    ORI:

    Very perceptive comment.

    However, you have overlooked a major difference. Dorit Beinisch does not claim to have Divine Revelation. She just wants to impose her personal will on the rest of Israeli society–she and her elite colleagues want what they want!

    The Gedolei Yisroel–the Torah sages–want to give the Jewish nation the wisdom of G-D’s Torah, which has successfuly allowed the Jewish Nation to survive–against impossible odds–for thousands of years.

    (p.s. It is unfortunate that you remain ambivalent with respect to these two choices.)

  20. Steve Brizel says:

    Look at it this way-the court, in its present composition and method of selection, is a self perpetuating left wing Ashkenazic secular elite that views itself as subject to only its own discretion. I think that can fairly be analogized to the pro segregation, WASP male courts-state and federal-during the Jim Crow era in the US.

  21. Ori Pomerantz says:

    Dorit Beinisch wants Israel to be ruled by an unelected elite which chooses its own successors and bases its decisions on a moral code that only a certain segment of the Israeli population accepts. At the risk of sounding snarky, you should be sympathetic. A Halachic state would be ruled effectively by Gdoley Israel, who choose their own successors and whose Toraic moral code is not accepted by most Israelis either. Both groups view democracy is a tool to achieve their goals, not a system worth preserving for its own sake.

    Dorit Beinisch is a bit less honest and a bit more successful. An a member of neither group, I don’t see a huge difference otherwise.

  22. Bob Miller says:

    Regarding Comment by Gil — August 28, 2007 @ 11:28 pm :

    This court makes sure that the secular Ashkenazic elite (including members of the court)–not some mob-like majority–runs over the little guy. This court has taken on the mission of frustrating all aspects of majority rule, and abrogating all minority rights, that stand in the way of this elite.

    This court makes up legal doctrine and court powers as it goes along, and the Knesset, so far, has been too craven to assert its own powers as against their blatant usurpation by the court.

  23. Calev says:

    The problem is not so much the court’s role as its institutional bias, which reflects the ‘traditional’ Israeli Ashkenazi, secular elite’s interests. However, as Israeli society changes, so too will the High Court; it will simply take a generation or two to filter through. It’s common in politics that when we don’t like the decisions/actions of a particular body that we campaign against the body, to change it or disband it. But this leads to instability. In Israel in particular, instability is the LAST thing people need. While I share Rabbi Menken’s and others’ concerns about the High Court’s bias, I would argue that if anything in the Israeli State system needs major reform it is the electorial process. The current method of electing a Knesset leads to instability, corruption and a lack of direct representation between citizens and State. Small interest groups hold a disproportionate influence and large parties swagger with undeserved self-importance. Too many MKs owe their positions on the ballot sheet to behind-closed-doors wheeling and dealing – the same kind of shadowy brokering that goes on to form the coalition governments. The ineffeciency of this system is exceeded only by the number of opportunities, even expectations, for individuals to act with a lack of regard for the wider public interest.

  24. Gil says:

    Yakov,

    Of course a supreme court does not further democracy. That is because democracy is not what we want. A democratic nation can democratically be a vicious and evil place.

    You miss the nuance in the president’s words. He wants “substantive democracy.” A substantive democracy is more often known as liberal democracy. A democracy where the mob is not allowed to run over the little guy – religious or secular. Courts are not supposed to represent the populace, but rather the higher nature of the law; the protection of individuals rights.

    Where would America be if the court represented the populace in the 50’s?