1. I am writing these words before Passover, as we are about to conduct biur chametz (burning the leaven from our homes). They are an attempt to sort out my thoughts and clear my mind of false consciousness.
From all corners, we hear voices of disappointment, and complaints about the inability to rule and to realize the will of the electorate. There is a recognition that a strong minority has been able to force a weak majority to halt a legislative process that it had placed at the top of its agenda. The past few months have highlighted with ever-greater intensity the anomaly that we have been living with for decades since Aharon Barak declared a constitutional revolution and thus imposed a constitution upon us – without our knowledge. Due to controversial interpretations and a weak Knesset, the judiciary has become the governing authority without any checks and balances to restrain it.
Over time, the Supreme Court justices became drunk with power. At first, the Supreme Court annulled laws passed by the Knesset on the grounds that they contradicted Basic Laws – tantamount to chapters in the constitution declared by Barak – which are beyond the jurisdiction of the judiciary. But then, when we sought to legislate Basic Laws, the Supreme Court understood that its absolute control of the government was in danger of being weakened, and it decided to reinterpret legal texts and invent something previously unknown anywhere in the world – the power to debate the legality, or rather illegality, of Basic Laws.
The danger is that the court may one day – and that day is not far off – annul the Law of Return (which is a regular law) on the grounds that it contradicts Basic Law: Human Dignity and Liberty. In fact, the Aharon Barak school of thought believes that there is a contradiction between Israel’s being a Jewish state and being a democratic state. Esther Hayut ruled together with Aharon Barak in favor of the unification of Palestinian families, a ruling that for all intents and purposes would have acted in favor of the creeping implementation of the demand for the return of hundreds of thousands of Palestinians into Israel, thus changing its demographic balance. We were saved by a majority of one. But we cannot count on that forever. The judicial reform came to rectify this situation. To our very great sorrow, we didn’t succeed in passing the reform.
2. This has become all the more painful and frustrating since the euphoria of the victory in the November election. But now, we must take stock. The truth has to be said: We launched this fateful campaign without a sufficient army behind us. I say it was a “fateful campaign” because, for the first time since the Zionist Congress of 1931, the coalition camp tried to create a balance in the rules of the game, which so far have played mainly in favor of the other side. The equality we sought was on a very small matter, a little affirmative action: the appointment of two conservative Supreme Court justices, with another two judges appointed with the opposition’s consent. Even that however did not get through.
The equality sought was to correct the distortion in the legal system, which almost exclusively appointed judges mainly from the Barak school of thought. But other centers of non-elected power also made sure to expand themselves. This expansion did not always produce excellence: On the contrary, it often produced mediocrity, as the criterion of excellence clashed with the suitability of the candidates to the system, that is, their worldview wasn’t the desired one.
As aforementioned, this is the situation not only in the judiciary but also in academia, culture, the banking system, senior government bureaucracy, and the elite units and command of the security forces. We cannot deny that in recent decades there has been some change, and “unexpected” candidates have “infiltrated” the system, but recent months have illustrated how the majority in these institutions remains solidly on one side, and when they were called upon, they declared obedience not to the elected government, but to the representatives of the unelected government, namely the Supreme Court. (They called it the “law;” in other words, they created a symbiosis between the Supreme Court and the law, while in reality the Supreme Court too is subject to the law).
3. In this state of affairs, the current coalition has the support only of its millions of voters. This support, too, has been denied by most of the media, which continues to preach that the public does not support the judicial reform. The masses are good only for the ballot box. The government, in its role as the executive, is responsible for all executive branches: defense, economic policy, education, etc. But these branches have rebelled against the government’s authority. Even the chairman of the labor union managed to shut down Israel’s main international airport. We were served a lesson in modesty. The irony is that they tried to scare us by warning of a dictatorship…
The meetings currently ongoing at the Presidential residence in order to reach a compromise are important, and I very much hope that good tidings will be forthcoming. But in view of the recent moves that we have seen, the compromise may well prove to be problematic. The danger is that the views of the minority will be forced upon the majority by means of a constitutional plan that is worse even than the current situation. In light of all these things I have described so far, there is no choice but to recalculate our next moves.
When Absalom rebels against his father King David, he marches on Jerusalem to seize power (II Samuel, chapter 15). King David knows his son well and realizes that if he fights him head-on, “none of us will escape from Absalom” and that if Absalom catches up with King David, he will “put the city (Jerusalem) to the sword.” King David decides to withdraw to the Jordan River, to the town of Mahanaim where he will be able to reorganize his forces. After the withdrawal, King David is subject to manifestations of schadenfreude and contempt from his political rivals and enemies. He bows his head and refuses to be drawn into matters of honor; his mind is focused on how to thwart the rebellion and return to Jerusalem. It was a tactical withdrawal aimed at enabling a renewed attack.
4. In our case, there is no need for a frontal assault and the Israeli Supreme Court is not the Bastille. We are a people who believe in the evolution of ideas and their slow trickle down into society; we do not believe in revolution and the immediate imposition of ideas. I believe that justice lies with those asking for equality in the Supreme Court and the strengthening of democracy, in other words, the strengthening of majority rule, of demos, and the people. Of course, this should not be at the expense of minority rights, but neither should there be a tyranny of the minority. It is certainly possible to reach a compromise with parts of the opposition over the requisite changes to the judicial system, but this should be done quietly, through dialogue – once matters have calmed down.
The heated voices calling for the legislation to be passed no matter the cost, are not fully aware of the balance of power. That part in the opposition to the judicial reform that has chosen what I have called “the Samson Option” really is willing to destroy the togetherness that we have built here since the return to Zion. From their perspective, the emergence of a halachic state in Israel – something we see as an impossibility – is a distinct possibility.
5. When Nathan Alterman describes in Joy of the Poor the relationship between the maiden and her living-dead father within the besieged city, he presents a sickly symbiosis between them that even deteriorates to rape. The maiden is Zionism, and the father is the old Jew. This is how religious tradition has been perceived in the last two hundred and fifty years by a significant part of our intellectual and political elite. They blamed the father – namely God – for the lowly and inferior state of the Jewish people in the 19th century, a people that from a national perspective lived on the margins of history, subject to the mercies and whims of the nations of the world. “The Holy Rebellion” against the “abusive father” led to Jewish tradition being rejected and cast aside by an immense number of young Jewish people.
This sentiment is a central component of secular Zionism; any attempt to minimize or belittle it will lead to results similar to those experienced in recent months. Imagine the children of a family whose abusive father is about to return against their will, following a period in which he was kept away from them. Throughout that time, it was the courts that protected them from their abusive father, but now the courts are about to lose their power to protect them.
6. I do not justify the above picture and I think it is very far from reality today, but fear is not a rational emotion, especially when it is encouraged by irresponsible actors (including former prime ministers!) calling for a violent uprising. The attempt to create symmetry (“we too will refuse to defend the country and we too will harm the economy and the state, and tarnish its image”) will not succeed. We all know this. We are graduates of Oslo and the destruction of the Gush Katif. Even as the wrecking ball demolished the homes of the pioneers, we continued to pray for the peace of the country. This is how we were brought up – to show historical responsibility. We know the terrible alternative. We experienced it less than eighty years ago.
Therefore, if we want to put right this social and political distortion, if we want to restore the correct balance between the branches of government, if we dream of a court that will restrict itself to ruling on the law and which will leave ethical and political affairs to the public square and the Knesset, then we must understand the worldview of the opposing side. Understanding does not mean agreeing, but it certainly won’t hurt if we stop judging what is wrong with the other side, and instead offer a different way.
7. Fifty years after Absalom’s rebellion against King David, the king’s grandson Rehoboam faced a similar dilemma to that of his elder. The northern tribes asked him to ease the heavy tax burden that his father, King Solomon, had imposed upon them. The elders proposed a compromise, out of the understanding that in this way the rebellious tribes would accept his reign. But the young men pushed him to show them who was king, and so he did: “He spoke to them in accordance with the advice of the young men, and said, ‘My father made your yoke heavy, but I will add to your yoke; my father flogged you with whips, but I will flog you with scorpions’.” The result was calamitous, the division of the kingdom: “When all Israel saw that the king had not listened to them, the people answered the king: ‘We have no portion in David, No share in Jesse’s son! To your tents, O Israel!’…”. If we really want to rule, we should draw inspiration from the eternal sources of our nation and learn from the wisdom of the generations not to repeat mistakes, even if the cost is temporary retreat. The correction will come. Patience.
8. We recalled earlier the complex relationship between the maiden and her living-dead father, between Zionism and Judaism. Alterman describes how from this impossible pairing, the son was born, the salvation of the besieged Hebrew settlement, and the state that would emerge: “…And so it shall be said of the land of stones, / When you stand before God with a pale face: / Behold, God, your servant, the daughter of your handmaiden. / See her in your image and likeness. / Do not describe her, my God, without splendor, / And she hugs the son.”
In this prophecy from the mouth of the national poet: the son in the poem is of course the sabra, the native Israeli, containing within him both sides of our identity: the national idea and the religious idea. Truly, we would not survive in the valley of the shadow of death of peoples and nations, war and peace, destruction and redemption, without these two sides in our collective personality. Even today, we need these two sides within us.
Alterman concludes his poem with a prayer, which now, we can all agree to and join in with three months into a societal split that is growing ever wider: “Just give her strength, compassionate Father, just strength. / So that she will not fall exhausted before her time. / Blessed be He who gives his strength to the earth / And to her and the infant in her arms.” Amen.
{Reposted from IsraelHayom}
