A Fine Kosher Pickle

Israel’s Supreme Court all but ordered that Tel Aviv mini-markets and other shops be closed on Shabbat, and I’m all for that.

As of last Tuesday, not only is it illegal for supermarkets and shops to be open on the Sabbath in Tel Aviv, the municipality is actually obliged to make sure that they stay closed. This is a very good thing, but not for the reasons you might think.

For all practical purposes, there is no law in Israel that forbids businesses from opening on the Sabbath, and by that I mean that there is no countrywide law. As with so many other things that make up our Byzantine legal system, what prohibitions exist against commerce during the Sabbath are really bylaws enacted, not by the Knesset, but by individual municipalities (hookei ezer, in Hebrew).

The bylaws ordering the closing of businesses on Shabbat all come out of an astoundingly stupid policy dating back to the beginning of the State. That policy sought to reach an accommodation between the secular and religious public by preserving in amber the status quo ante; the state of affairs in religious/secular relations at some ill-defined moment in time around 1948. So if businesses generally did not open on Shabbat in Tel Aviv seventy years ago or so, then a bylaw would be passed preventing any future businesses from opening their doors on the seventh day. I over-simplify, but not that much.

Fortunately, things did not work out as planned. The greatly abbreviated version of what happened in Tel Aviv (and in other places) is simple: life got in the way. For the secular residents of Tel Aviv, the need to buy a carton of milk or a loaf of bread did not go away just because Friday turned into Saturday, and as is the way of things, people found solutions. First a local merchant discovered that he could make a lot of money by keeping the joint open past sunset on Friday. So much so, that even when he was fined by the municipality he still came out ahead. Quickly, other shop owners caught on and more shops opened on the Sabbath. Fast forward a number of years to find that two chains, Tiv Taam and AM:PM got in the game and pretty much took over the market. Suddenly you can find a clean, well-stocked mini-market almost everywhere and buying food or a pack of cigarettes during the weekend is the easiest thing in the world.

With the passage of time, this situation evolved into a murky and uncertain new way of life. The large chains could stay open (and pay the fines), but the family-run businesses clearly could not. For the Tel Aviv Municipality the fines imposed on Tiv Taam and AM:PM became less of a way to enforce the bylaws and more of a source of revenue. For these chains the fines were simply the cost of doing business. Things trundled along in this very Israeli fashion until the Supremes decided to step in.

In their ruling, the Supreme Court Justices essentially said that in failing to properly enforce their own bylaws, the Tel Aviv authorities were making a mockery of themselves and discriminating against some of their taxpayers. By treating the fines as revenue, the Municipality essentially made a paper tiger out of the bylaws while at the same time putting the mom-and-pop shops at a serious disadvantage. Tel Aviv was given a choice, either enact new bylaws or enforce the existing ones, but the current mess has got to go.

I like that.

Not the fact that the shops will be closing, that’s just dumb. Strictly enforcing religious bylaws mandating the closure of all businesses on Shabbat will only lead to rampant disregard for the law in one form or another. Instead of having clean and regulated businesses, we’ll have unregulated ones. No, I like the fact that the Supremes are asking us to take a look at ourselves, at the ways in which we live, and forcing us to face the fact that things here are changing and we need to drag our rule book out of Byzantium and into the modern world.

Ordinary folks in Tel Aviv and in other cities would like to be able to shop on Saturday, and no rabbinically inspired bylaw is going to change that. The half-baked bylaws now on the books are no longer useful and need to be replaced with something better. That something is likely to be more rational rules that expand our freedom, that make our lives more comfortable and that move us away from theocracy. And that would be good thing.

I realize that effecting real change is not going to be easy. The easy way out would be to muddle through and find some mealy-mouthed “compromise” that will settle nothing and please no one. Making a real change that truly serves Tel Avivians (and by extension the rest of us) will likely trigger a monumental brawl; its sound and fury would reach prodigious heights. Let it. We need to argue about these things and reach a new understanding. Even if the argument gets loud and uncomfortable. The status quo ante was always a fiction, a mumified relic of a different time. It’s been dead for many years, the ruling by the Supreme Court is simply giving us the chance to finally bury it.