If MKs control the courts, only criminals will be MKs

In an interview today (29.8.2024), Likud MK Hanoch Milwidsky claimed that “the court in Israel works against the right[-wing] and holds no Justice.” Announcing that he would work against the supreme court as soon as the war in Gaza is over, he urged “right-wingers” to avoid the courts, and to go instead to other forms of arbitration, including the Rabbinical courts. A month ago, Religious Zionism MK Simcha Rothman advised other MKs not to “obey the supreme court.” Earlier this week, when the Attorney General said that the unprecedented promotion of a police officer indicted by Internal Affairs for use of unnecessary force to chief superintendent and commander of the Tel Aviv-South station was unlawful, Jewish Power MK Itamar Ben Gvir refused to follow her injunction. During Ben Gvir’s tenure as Minister of National Security, the police have almost completely ignored violent attacks by Israeli citizens on other Israelis and Palestinians in the West Bank and even against soldiers on military bases. Last November, a former policeman, Yuval Castelman, was shot dead by Israelis after he neutralized a terrorist attack and the police refused to conduct a full investigation, and released the chief suspect (who boasted of his involvement on national television) almost immediately. All of these are but a few examples of a widespread effort of elected representatives to subject the Israeli judicial system to their authority.

Moses Maimonides, the 12^th century decisor of Jewish halakhah, wrote in his code of Law, Mishneh Torah, that no sage or student of the sages should live in a city that has no court that inflicts punishments and imprisonments. In this ruling, Maimonides follows the Babylonian Talmud, rather than the Jerusalem Talmud, which says that such a court should operate according to the Torah. Indeed, Maimonides includes doctors, baths, running water, and public toilets, as things sages and their students cannot live without, further adding to the impression that what is needed is an effective court, in general. That is, for Maimonides, rule of law cannot be dispensed with. More significantly, while a single individual or a small group can order their lives in accordance with Jewish law, they cannot do so with respect to the general rule of law if others live without it. Rule of law in general is accordingly more basic to human life than Jewish halakhah.

Ben Gvir, Rothman, Milwidsky, etc. do not, I suspect, see themselves as attacking the general rule of law, but imagine that they are merely rescuing it from the clutches of judicial overreach. They imagine that by securing control over judicial appointments, according to Likud MK Yariv Lavin’s “reform” plan, they will assert their rightful authority as judicial representatives. By encouraging the police to answer to him rather than to the courts (also against Maimonides in Laws of Judges 1:1), Ben Gvir imagines that he is bringing the police more directly under the control of the people, that is the people who elected him.

These men err fundamentally in their understanding of the powers of elected officials. As Alexander Hamilton pointed out in The Federalist no. 78, elected officials derive their power from the people, but so too does the constitution. Indeed, since elected officials are only elected through the constitution, the constitution is necessarily prior in importance to the elected officials. That is, in our case, Israeli democracy as a system of checks and balances, is prior in importance to any mandate given to lawmakers. Elected MKs, in other words, gain their authority first from Israel’s democratic character and only second from their voters. By attacking the courts, especially the supreme court, our elected MKs threaten all of democracy, and therefore undermine their own authority as MKs.

Without courts, life will be chaos. With courts controlled by the MKs and without their own independence, democracy will cease to exist.