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David Page
US Lawyer and Israel Attorney

The Emerging Coalition in Israel Isn’t “Extremist”

(Image commercially licensed by author)
(Image commercially licensed by author)

The most reliable sign of true extremism is demonizing that opponent and refusing to deal with the opponent’s views on their merits.  It’s also a sign of insecurity about the merit’s of one’s own views.  Accusations of ideological deviance are usually the stock in trade of dictatorships — whether communist or fascist or Islamist.  In the past few years, however, this kind of rhetoric increasingly has infiltrated the West, and the United States and Israel are unfortunately no exception.

Israel still holds the only genuinely democratic and non-violent elections in the region — even though some of those elections end in stalemates.  But from reading the pages of the Times of Israel, and from the reaction in much of the US and European media, we’d never know it.  Instead, we are told that the “experts” feel that the result of these elections puts Israel back into the “dark ages” or into an “Ayatollah state,” the world is worried about “extremists” in the government, and the efforts to reign in the Israeli high court “threaten freedom.”  The truth is far more sober than that:  There has long been a reexamination going on by the majority of the Israeli electorate, and some of the conclusions they are drawing are different from the conclusions of entrenched elites in Israel.  It is worth discussing each of the issues one by one to understand them in a more balanced way.

The Supreme Court Canard: False Claims That Changing the High Court’s Selection of Judges and Knesset Override Will Be Undemocratic

The first claim about the Supreme Court — the one that’s inherently best calculated to generate hysterics — is the claim that the new government is going to harm the balance of powers by politicizing the judicial appointment process and by allowing the Knesset to override the high court’s decisions.  Both arguments are red herrings, as ably pointed out in Professor Eugene Kontorovich’s article in the Wall Street Journal.  With regard to judicial appointments, it is well known that the appointment of judges is a Byzantine process in which the current high court judges get to pick their own high court judge colleagues, with only a token voice given to the Prime Minister and the Knesset.  By contrast, in the US, judges are appointed by the President and confirmed by the Senate.  Isn’t it then clearly more “antidemocratic” to allow an entrenched elite judges to pick their successors?  Or should there be an appointment process more similar to that in the United States?  Obviously the US system is more democratic than elite judges picking other elite judges.  But that reasonable point is seldom if ever made in these pages or elsewhere in the media in Israel or abroad.

The other claim about the Israeli Supreme Court is that it clearly should have the power to declare legislation unconstitutional.  This sounds uncontroversial and basic on its face until the facts are revealed:  Israel has no constitution at all.  The so-called Basic Laws that the court has given “constitutional” authority were never intended to have that enhanced level authority when they were passed.  It was in fact only since 1992, when Aharon Barak became Chief Justice, that the so-called “Basic Laws” were given “constitutional” weight, in what was acknowledged as a total departure from the 44 years of precedent until that time.  The landmark ruling by Barak’s Supreme Court in that regard was the 1995 case, Bank Mizrahi v. Migdal Cooperative Village enunciating this arbitrary constitutional-without-any-constitution judicial review standard.

The usurpation of power was therefore in fact Barak’s and the Supreme Court’s.  Since then, the court has used its self-declared and self-conferred powers to overrule numerous laws using its own very low “reasonableness” standard.  That seizure of power by the court, coupled with its undemocratic process for appointing its own judges, has led to what can only be described as a dramatic usurpation of government powers.

So why, you might ask, would 100 professors of law write an open letter condemning this long-overdue restoration of the role of the court as a bona fide threat to democracy and freedom?  Perhaps it’s because they came of age in the post-Aharon Barak era and/or themselves are enamored of the oversized and over-weaning power given to the Israeli legal profession.  As an attorney myself, and as a former lecturer in the Faculty of Law at Hebrew University, I would add my vote to the other side of the scale.

That’s because the current emerging coalition is advocating nothing more than a return to the role of the court as it was for most of the State of Israel’s history:  Just as the Knesset passed the “Basic Laws” on which the court relies for its overreaching, the Knesset should have the power to override the arbitrary and capricious judgments of the group of judges who, as Barak’s pupils and indeed appointees, have drawn to themselves powers that they never had in the many decades preceding the mid-1990s and that they have since used in increasingly aggressive ways, overruling policies that have nothing to do with any basic freedoms and in fact erode those freedoms.  The position of the current coalition is simply that that power-grab should be reversed.

The Canard That the Pro-Settlement Position of the Coalition Undermines Peace and the Rights of the Palestinians

The second claim of those who seek to label the current coalition as “extremist” is that the Religious Zionist Party emphasizes the right of Jewish people to found settlements in the historic land of Israel as well as calling for those who use violence to fight against the State of Israel to be stripped of their citizenship.

The issue of settlements is much misunderstood, because the rhetoric has been hijacked by those who seek to destroy the State of Israel.  For example, in Jerusalem, Jews and Arabs, both citizens and those who are not, mingle freely and for the overwhelming majority of the time harmoniously.  There is a mixed presence of Arabs and Jews. By contrast, the towns and villages and territories run by the Palestinian Authority and the Hamas rulers of Gaza (as well as the increasingly lawless areas of the West Bank) are no-go zones for any Jew, and certainly not a place where Jews live.  Those areas are kept by the policy of the rulers strictly judenrein, entirely free of Jews.  There are Arab citizens of Israel who have equal rights under the law, including to serve in government (as during the last government and indeed most governments prior).  By contrast, what do the tolerant rulers of the ostensibly “free” Palestinian-run areas offer?  A judenrein territory with no free or fair elections, no basic rights of freedom of speech and personal freedom, and financial sponsorship of terrorism or actual terrorism itself (in the case of indiscriminate missile attacks by Hamas on civilian targets).

By contrast, the modest claim of those who support Jews’ rights to settle on the historical land of Israel is not to remove Arabs at all but rather to simply allow Jewish villages to be built within a territory (Israel) approximately the size of the State of New Jersey.  The extremism is not to be found in that modest policy position.

Indeed, as Joan Peters famously wrote in From Time Immemorial, a massively researched book given rave reviews in The New York Times at the time, the Palestinian issue — including the unprecedented definition of who counts as a Palestinian refugee (spoiler alert:  anyone who lived in Palestine for only two years prior to the founding of the State of Israel in 1948 as well as all of their descendants forever) is a definition — without precedent before or since in international law — that has been invented whole-cloth from otherwise non-existent international legal standards by the international community and weaponized for exclusive use against Israel.  As Jews, we are used to a double-standard being applied to us and accept that fate with faith and good humor.  But it is not “extremism” to suggest that at long last, with God’s help we are here to stay in the land of Israel, and it is unacceptable for areas of this land of Israel — the historic Jewish and democratic land of Israel — to be judenrein.

The second claim that is labeled “extremist” is that of stripping citizenship from those who actively engage in armed insurrection against the State of Israel.  If that is “extremism,” it would be wise for the West to examine its own identical policies that were instituted quite recently:  Those who joined the Islamic State’s self-proclaimed caliphate and worked to attack their respective Western countries were frequently stripped of their citizenship and treated as terrorist insurrectionists.  It is certainly arguable — without being on its face extreme — that support of violent overthrow of one’s country of residence is ample grounds for forfeiting the rights of citizenship.

The Canard of the “Ayatollah” State

The final set of accusations leveled against the current coalition is that they seek to create an “Ayatollah” State.  It would have seemed totally unnecessary to address this spurious claim if it did not receive so much press and credence in these pages, and indeed dress unbridled resentment of the Jewish tradition as a sober “analysis” based on “expert” opinions leveled against traditional Judaism by the anti-tradition Shalom Hartman Institute activists and other antireligious voices.  Torah Judaism, including that of the Ultra-Orthodox (a term the Haredim do not use to describe themselves and that is nevertheless applied to them disrespectfully) respects the right of free individual choice.  Judaism does not enforce its views on personal morality at the point of a gun — as does the Ayatollah State.  Instead, Torah Jews spend most of their time and energy connecting to God, via learning and supporting the Torah and performing the many commandments — Mitzvos — incumbent on Jews.  The claims of lack of care for their fellow citizens are belied by the fact that Torah-true Jews have more organizations and activities to help others, especially the elderly, the poor, the sick, and the otherwise vulnerable or simply those in need of kindnesses of various kinds, and have higher rates of charitable contributions per capita than any other demographic group in Israel.  (Meanwhile, the vanishingly small fringe group the Neturei Karta are deliberately given disproportionate coverage in the media because they are deliberately outrageous, even as they are condemned or deliberately and effectively countered by every other group of Haredim.)

Moreover, Torah Judaism’s place has been enshrined in practice in the State of Israel since its beginnings.  Unlike in Stalin’s Soviet Union, the early anti-religious leaders of the State of Israel did not upend such basic features of the Jewish faith such as the traditional work week in which Shabbat is the day of rest, nor did it neglect to make the Jewish holidays national holidays, nor did they try to annihilate the rabbinate.  Yet Shabbat and holidays as days of rest and the Orthodox rabbinate’s position are all historical positions that the antireligious parties are trying to upend and reverse in Israel.  That’s not to say that observance of the Torah’s precepts was encouraged by Israel’s founders, it certainly was not.  But the Israeli Declaration of Independence recognizes the State of Israel as a Jewish and democratic state.  If so, why would emphasizing Jewish content as our Jewish heritage in Jewish schools and in the public square be castigated as extremism?  Is the non-Jewish tradition and content in Jewish schools to be given precedence over the Jewish tradition?  We must bear in mind that the right of non-Jews in Israel to practice their faith — both publicly and privately — has been guaranteed since the beginning in Israel (as long as these do not missionize Jews).  Non-Jews are not accused of being Ayatollahs for taking their own faith seriously as long as they do not resort to violence and coercion of the kind employed in Iran.

Neither should Torah values be made the bugaboo that they are in the media.  Why not actually sit down with Jews steeped in the ancient wisdom of Torah and learn from them?   There is a reason why myriads of Koreans have been studying Talmud as the “secret sauce” that makes Jews thoughtful people.  Why should the study of Torah be encouraged in Korea but not in Israel?  Why should the Koreans recognize the academic success that is inherent in Talmudic debate, but in Israel that same study is shunned and scorned as useless and primitive?  As one who has experienced the intellectual rigor of Talmudic study, I would place it above any of the many high-level master classes in which I studied at elite universities.  Yet it is precisely that intellectual rigor and training that is labeled as “extremist.”

Are we all so utterly sure of our opinions that it has become a breach of ideological purity to present opposing viewpoints?  I, for one, would prefer that the media would seek to delve into and reveal truth by presenting different viewpoints (including from — gasp, dare we say it? — Haredim and Religious Zionists too) and leaving it to the readers to decide for themselves whose views are correct.  That balanced coverage used to be par for the course in high quality journalism, before the censorship days of social media “fact-checking” and before journalism had to be partisan.

Here in Israel, we still have preserved the joy of a lively debate.  What other country has people from every country of Europe, North America, South America, and Africa, the Arab countries of the Middle East, from as far afield as Australia, the Asian Steppe and India, all living side-by-side in relative peace and harmony?  We should make every effort to keep it that way and speak to one another and value one another and learn about and from one another.

For those who wish to drop the incendiary rhetoric and actually discuss issues together, I, for one, am ready to participate, in the tradition of democracy and free speech that honors free choice and freedom of conscience.

About the Author
David Page is a US and Israeli attorney practicing law in Jerusalem. David is a graduate of Harvard University and the University of Chicago Law School, after which he went to study European law at the University of Paris and to clerk on the US Court of Appeals. David also has learned at the Mir Yeshiva, and has taught at the Faculty of Law of the Hebrew University of Jerusalem and published in the field. He served as regulatory counsel in an American Israeli high-tech company for more than half a decade and heads his own law firm and is the founder and CEO of the business law tech platform InsideOutsideCounsel, www.insideoutsidecounsel.com. You can write David at david@davidpagelaw.com or visit him at www.davidpagelaw.com.
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