Yariv Levin’s judicial reform deviates significantly from the liberalism of Jabotinsky and Begin, but even more so from the principles of governance in the Bible and the prophets’ vision. The basic idea of our Torah is that there is only one King and that human rule must be restrained.
The primary justification for the proposed judicial reform is that the nation elected us, and thus we have the right to govern. The legal system interferes with us. The government and ministry legal advisors limit us. The prosecutor’s office ties our hands.
The new Minister of Culture and Sports, Miki Zohar, described it well. After a televised interview with Aharon Barak, the former President (Chief Justice) of the Supreme Court, he said that he “checked carefully and did not find a single ballot with Aharon Barak’s name on it.” The conclusion: those who are not elected by the ballot box do not count. As we would shout (when we were kids) in the neighborhood, he declared, “The majority decides!”
But that is not exactly right. That principle may have worked back when we were kids in the neighborhood, but it only infiltrated into the right wing in recent years and that after the investment of millions of dollars by Evangelicals and Republicans. Suddenly it became possible to use simple principles like “governance” and based on these, do away with the ‘spineless liberal’ judges. How very far is all this from the liberalism of Jabotinsky and Begin? But even more so, how very far are they from the principles of governance found in the Bible and that of the vision of the prophets?
The basic idea of the received Torah is that there is only one ruler: the Holy One, the blessed one, is Ruler. God will reign eternally and exercise power through a constitution and through prophets and leaders, to whom some of God’s powers are imparted. But a Ruler of flesh and blood? This possibility is mentioned in the Bible. But the principle is that human rule must be weakened and restrained. “He shall not keep many horses…and he shall not have many wives…nor shall he amass silver and gold to excess” (Deuteronomy 17).
The Bible sees rule by humans as a default, as a human weakness. It reflects the understanding of the danger of a government that has too much power. Red lines are drawn to limit this rule. Military, diplomatic and economic power are restrained. Moreover, even before the option of establishing a government (with limitations) one must establish a judiciary and a law enforcement system. “You shall appoint magistrates and officials for your tribes (Deuteronomy 16).
For many years the nation of slaves which had gained independence and sovereignty did not appoint a king. The leaders and judges arose when there was a need to “calm the land”. Only the harassment of the tribes of Israel by the Philistines brought about the demand for a king. And even that only happened when the prophet Samuel was very old. When Samuel, humiliated and with a clear lack of choice, relayed the people’s demand to God, the response was surprising. “And God said to Samuel: Heed the demand of the people in everything they say to you. For it is not you that they have rejected. It is me that they have rejected as their ruler” (Samuel 1, 8).
It is probably not by chance that the ultra-Orthodox parties use the slogan of governance less. The Jewish lesson is that power must be restrained. The prophets were a restraining force who stood before the most powerful government criticizing the ruler. The biblical constitution demanded the restraint of royal power. When King Solomon violated the limits of the constitution in the most blatant way and enlarged his collections of horses, women, silver, and gold, this led to civil war and the splitting of the tribes into the kingdoms of Judah and Israel.
One cannot exaggerate about Israel’s lack of checks and balances. With only one chamber of parliament, the complete intermingling of the legislative and executive branches, and the lack of a constitution, our democracy is extremely fragile. We can also praise the Israeli tradition. We are no longer a small country, even if we are still young. To heap abundant praise on the State of Israel and on the other hand to destroy the infrastructure that enabled its existence a dishonest contradiction.
Rallying around the cry “the people are sovereign” in order to blatantly shore up power is a calculating move to take advantage of and anti-intellectual doubts that may exists in all of us and to manipulate this in order to appeal to our more destructive instincts. When we add this to the disrespect and accusations leveled against the Chief of Staff and the Police Commissioner you will realize that nothing is coincidental.
The current government prefers not to have a Supreme Court that would force it to build shelters for the disregarded residents of Sderot, legislate ways to deal with the inequality of the military draft and the quagmire of conversion to Judaism and halt the imprisonment of asylum seekers for months and years. Suddenly all of this (that the Government does not want to be told to do) sounds like the biblical injunction to protect the sojourner, the orphan, and the widow! Doesn’t it?
And it is important to say, and not for the sake of balance, that there is room for reforming the judicial system. There is such a need. The judicial system is plagued by exceedingly protracted proceedings and does not respect to dignity of those living in poverty. The system is partial when it comes to the powerful and the rich, who all too often manage to evade Justice. It is still not sufficiently diverse in relation to Arabs and Mizrahi Jews, even with the amendment favoring conservative judges in the last decade. The system ignores opportunities for rehabilitation and restorative community justice. And it did align itself in favor of the right-wing Sharon government during the disengagement from Gaza and supported the trampling of human rights of settler protesters if past sins are to be mentioned.
Yariv Levin and Simcha Rothman are not talking about this kind of reform. They speak on behalf of a strong, well-connected, and wealthy political elite that ignores Jewish values which call for restraint of governmental power.
Therefore, this is not just a struggle for Israel’s democratic character but also, and perhaps mainly, for its Jewish character.