1.
The public debate about the interventionist attitude of the Supreme Court is far from being a solely legal one. It is entwined with the debate about freedom – the freedom to think differently, and our freedom as citizens to make our own decisions about our future here in the land our ancestors coveted.
I'll review the basics: Human society includes many opinions and values and ideas and directions. A group of people decides to band together to establish a state - how will they decide what values and ideas should unite them and on behalf of which they should work together? A ruler can be appointed who will decide things and determine what is good and what is forbidden. That leader's personality will tie into the rules of the regime and its laws, and set the rules of the regime and how it conducts itself in civil matters. The citizens won't have any real opportunity to question it.
It is also possible to hold an election, but for a parliament that won't have final say on controversial principles. The top-ranking leader will have veto power, under the assumption that he knows the truth better than anyone, knows what values are worthy, and knows how a functional country should be run. Plato, for example, thought this way. As far as he was concerned, only the philosopher sees the true light, unlike us plebeians who are groping in the darkness of a complicated reality (we won't say in ignorance). Therefore, in an ideal nation, the philosopher deserves to be king. In any case, even the rule of an ideal king is still a dictatorship. An enlightened one, but a dictatorship.
Devotees of the Supreme Court are proposing a similar regime here. They aren't apologizing for the current situation of judicial intervention; they actually see it as fitting, because Israeli society isn't mature enough to decide for itself. So judges must constantly step in to ensure that we don't veer off the path. What path? The path of the liberal Left. So what if there's a dispute about that path? Not among themselves.
2.
Even a researcher like Professor Menachem Mautner, who has criticized the Supreme Court, spoke up in justification of this untenable situation in a piece last week in which he attacked Dr. Gadi Taub, a brave thinker who has become a punching bag for Haaretz for his well-reasoned step down from the chorus. Why did Mautner go after him? Because "the conditions for action in which Israeli democracy has functioned from its first days [are] under threat by Jewish nationalism and Jewish religiosity." According to Mautner, "They both contain core values that are opposed to the core values of a liberal democracy."
Anyone who could write such a thing doesn't really know the religious tradition of the Jewish people. We are the descendants of people that never accepted absolute rule by a flesh and blood human being. We have always battled against tyranny. We never even stopped struggling with God or arguing about or questioning his authority. The kings of Israel were not absolute monarchs, like the ones in Europe or in Islamic countries. They were the leaders of their citizens, military generals, managers of their kingdoms, but never tyrants. The king was counterbalanced by prophets or sages who represented morality and the legislative entity. The king was dependent on the people's agreement to his rule, and the people, of course, never took for granted that God had chosen whoever it was to rule. The king needed the assent of the people.
Even after we were exiled from the Land, we managed our people's many communities by consensus. Not only the community leadership and leaders but even its rabbis and Torah scholars depended on the public agreeing on their being chosen. For us, democracy wasn't a default choice, it was a fundamental principle, even if we didn't call it by that name.
3.
Why does Mautner assume that the threat is unilateral – that nationalism and religion threaten what he calls "liberal democracy"? We are seeing the opposite threat for ourselves! Some of the believers in "liberal democracy" object to Jewish nationalism and religious tradition. Objecting is fine because that has been a part of our people's war of ideas since time immemorial. The problem is that the judges illegally exploit the authority invested in them by the people, the vast majority of which supports nationalism and religious tradition, to dismantle those ideas and narrow their application in the name of debatable principles.
Democracy is a framework, a regime into which the public inputs its values and ideas. It does so through "an egalitarian discourse between citizens about their shared lives." Who takes part in the discourse? "Not only elected politicians, but also unelected institutions – the media, academia, research institutes, civil society organizations, the school system, and the arts." Mautner wrote that before going on to contradict himself.
This discourse is vital to democracy, but it can only take place through public discussion, education, and persuasion, after which the people vote and decide - for or against. The Supreme Court cannot force its opinion on us because it doesn't know any better than anyone else where the Zionist ship should sail. Nor does it have the authority to do so. We, the people, gave it the authority to make judgments based on laws passed by the Knesset. Followers of the Supreme Court identify democracy with a specific kind of liberalism, one whose values could clash with liberalism as others – no less wise - understand it. In short, a certain group has decided that its values are the ones that will prevail and shut down the debate, because it has the power to.
4.
Mautner eventually reaches the final excuse that justifies the watchmen stealing the public's sovereignty: "Since 1967, the face of Jewish nationalism has been the face of occupation, which in its essence is contrary to democracy, and which in recent years has taken on characteristics of apartheid."
Rivers of ink would be insufficient to condemn these erroneous ideas, which have taken hold among the old elite, and which is left standing on one basic pillar: the occupation. That is why it has adopted mendacious terms that have no real link to the political history of South Africa.
I've published many columns that contradict that description of reality. For now, we'll stick to the fundamental discussion – that the citizens' freedom to decide their future being stolen from them is justified in the name of a disputed interpretation of reality that hinges on a certain ideological and political worldview. That claim gives special weight to my main argument, which is that this is what the Supreme Court does on almost every matter that arrives on its doorstep. It applies values that come from outside the legal world and include the judges' political or ideological views to Israeli society by parsing the "spirit" of the law as written, without taking into account the years of public discussion that led to the laws being enacted in the first place.
The Supreme Court's interpretation of the "spirit of the law," which it applies to legislation passed by the Knesset, is an appropriation of the will of the legislative branch for the good (or bad) of the personal prejudices the judges bring to the courtroom. In other words, the judges invent new laws through interpretation that undermines the existing language of the law. They have more creative words for it, but this is what they mean: You, the elected public officials, can pass any laws you want, but we judges will decide what you meant, even when the lawmaker declares it!
That is how our freedom was stolen from us.
Dror Eydar has been appointed Israeli Ambassador to Italy
