When the Law Is Violence

Why it is vital we oppose the ICC decision alongside the current Israeli government’s renewed efforts at judicial overhaul

In 1986, one of the 20th century’s most important legal scholars, Robert Cover, published one of the more important works of legal philosophy to date: Violence and the Word. In it, Cover – a Jewish Talmud scholar and professor of the law at Yale – makes the important point that law is, after all, a form of violence. “When interpreters have finished their work,” he observes of judges, “they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.” He makes the point that this is true for States and voluntary communities alike: even the Jews of the Diaspora, living in a non-State relationship with one another, accept the violence of legal interpretation that define the boundaries of their communities and the shape of their shared lives.

Understanding the implications of Cover’s insight is especially important in light of the events of the past two weeks: the decision by the International Criminal Court (ICC) to reject Israel’s objections and issue warrants for the arrest of Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, the continued efforts of the current Israeli government to implement the judicial overhaul that would place the Courts under political control, and the decision by the newly appointed Defense Minister to cancel administrative detentions for Jews and not Arabs. All three constitute the application of violence in ways that must be opposed by anyone who believes that the philosophy of “might makes right” has no place in a Jewish State.

First, on the ICC’s decision. Under our current international State-based system it is, in fact, the right of any State to determine those laws by which they are governed and the application of those laws to anyone who crosses into their zone of sovereignty. If the 124 member-states of the ICC would like to outsource their legal decision making to a non-State body, who is Israel to object? If the United Kingdom of Great Britain or the Catholic Kingdom of Spain or the colonial government occupying aboriginal lands in Australia agree to implement the violence decreed by a court whose member states are primarily authoritarian or kleptocratic autocracies, far be it from Israel to tell them that they should reconsider. All Israel should do, on the face of it, is to tell its citizens that these States are not to be trusted for fear of erratic acts of enforcement.

The problem with the ICC decision is not, therefore, the decision by governments of supposedly democratic nations to implement said decisions, but rather that the ICC can make such decisions secretly based on evidence it alone can see, outside of the legal norms under which the actions in question were conducted, with no due process, justifying the detention of people without their consent. This is not only a non-democratic system, it is a deeply illiberal, politically biased, and corruptible system where violence is justified without transparent checks and balances.

In this particular case, Netanyahu and Gallant have been warned. But more often than not, the ICC issues secret warrants meaning that those it has deemed guilty are not given sufficient notice to decide whether to enter a jurisdiction under which they may be detained and harmed and as such caused pain. As Cover notes, “The deliberate infliction of pain in order to destroy the victim’s normative world and capacity to create shared realities we call torture.” The ICC ruling thereby justifies the torture of any Israeli who served to protect their country if that individual is deemed to be guilty by a secret panel of judges with secret evidence.

For the same reason, those of us who intuitively know that the ICC decision is deeply wrong should gather the moral fortitude to just as strenuously object to the current government of Israel’s efforts to remake Israel’s own legal system without broad agreement of its citizens.

When Yariv Levin dissembles and delays the application of the law and denies the citizens of Israel due process, impoverishing our legal system of a Supreme Court President, when the newly appointed Defense Minister seeks to impose a legal reality that would enshrine an unequal application of the law to individuals under the power of the Israeli state, they are doing violence to Israelis and our fellow humans under Israeli control. Unlike the Torah’s repeated and explicit exhortation that one law should apply to citizens and strangers, they’re set on implementing two. Their actions should be no less revolting to lovers of Israel, and no less loudly decried.

As Cover reminds us, “Law is the projection of an imagined future on reality” and acts as an “effective domination” of those who control the law over those who do not. The reason liberal democracy is so important to defend is that it provides a check on the powerful by protecting the powerless from the arbitrary imposition of interpretation by the judges in the powerful’s camp. Liberal democracies promise their citizens that they will always have a say in making the laws that will determine their future, that they will be protected from torture, from the destruction of their normative world. The Torah agrees: the law – agreed to through a covenant adopted by the people – must be maintained as superior to any individual, no matter their desires, and applied equally to all.

It is not ethical, not moral, not democratic, and definitely not Jewish to support might over right. The ICC’s lack of due process and the current Israeli government’s deliberately biased application of the law and its implementation must be opposed by anyone who seeks a better future for the Jews, for Israel, and for the world.