Words of Wisdom: On Contamination - and On Moral Values

Dror Eydar:

The constant Arab argument which has also been seized upon by Western liberals posits that the Jews are not a nation, but a religion. Hence a religious grouping is not entitled to its own state. Those who espouse this view claim that it is the Palestinians who qualify as a nation.

What clever logic.

Creating a nexus between the tribes of Gaza, Hebron, Nablus, and the Galilee so as to form a national grouping is akin to the British colonialist practice of carving out artificial states like Iraq by lumping together the Kurds, Sunnis, and Shiites, or the French colonialist project that gave birth to the Syrian state inhabited by Druze, Alawites, Sunnis, and others. Due to the emasculating effects of political correctness, we have refrained from discussing the issue, instead preferring to emphasize the security arguments. This twisted state of affairs has contaminated the toothless diplomatic and political discourse.

and from the same article on Israel's Supreme Court:

The court metamorphosed into an arbiter of moral dilemmas that lie at the heart of the cultural and political discourse in Israel. Slowly but surely, the assumption that elected officials were unfit to make key decisions on burning issues on the agenda gained significant traction. As a result, the belief was that these officials did not need checks and balances, but a guiding hand.

This state of affairs alarmed retired Supreme Court President Moshe Landau, one of the founding fathers of Israeli jurisprudence. Landau watched with dismay as his handiwork was being tossed aside into the abyss. In an interview with journalist Ari Shavit in 2000, he said: “I think that [Supreme Court] President Aharon Barak does not reconcile with and has not reconciled with the proper place that the court needs to assume between our branches of government.” When asked whether Barak’s goal was to impose legal authority over every aspect of our lives, Landau replied: “Not to impose legal authority, but to impose certain moral values as seen fit by him. And this is a sort of judicial dictatorship that doesn’t seem proper to me at all.” In the same interview, Landau added that he noticed a tendency by Barak to concentrate “authoritative power” over the branch which he helmed, “and this, in my view, is not right. It leads to a dead end. Because the court is treading into water that is too deep, a challenging swamp of opinions and political beliefs, and this is dangerous both to the state and to the court. It’s dangerous to the state because it exacerbates the social fissures, and it is dangerous to the court because this is how the court loses its fundamental role upon which its standing is predicated: the belief in the neutrality of the legal system as it relates to public disputes.”

And the continuation:

In response to a question from Shavit about his concerns for the future of the court, Landau had this to say: "I belong to the first generations that founded the judicial system in Israel. You could say I'm one of the 'dinosaurs.' And this system is very precious to me. I love it and believe in it. But here, too, things have reached the crisis point. And, today, I truly fear for the proper future of the legal system. Because it is being led in a way that, sooner or later, will surely cause the court's public standing to be diminished. Already there are entire sectors of the public that truly despise the Supreme Court. And this process undermines the integrity of the judicial authority."

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Finally, Israel's True Judicial Revolution

In a close and secret vote, the Knesset voted MKs David Rotem (Israel Our Home) and Uri Ariel (National Union) as its representatives on the Committee for the Appointment of Judges.

Rotem, who chairs the Knesset Law Committee, was a foregone favorite to win one of the two slots - while Ariel was a surprise winner for the "opposition" slot. Ariel's race against Bar-On was the subject of great tension, with some Likud members saying they would vote for Bar-On - despite Bar-On's centrist-left orientation. In the event, Ariel received 59 votes, one more than Bar-On's 58.

The results of the vote mean that the nationalist camp, for the first time in memory, has a slight edge in the appointment of judges in the coming year.

An insight:

During the past decade and a half, a remarkable gap has opened up in Israel between the unprecedented activism of the country’s Supreme Court, on the one hand, and the paucity of substantive intellectual debate about the court’s practices, on the other. The Israeli High Court has been among the boldest anywhere in the democratic world, going well beyond the letter of the law in striking down the actions of the government and legislature in a range of areas including foreign and defense policy, religion and state, family law, edu­ca­tion, and the appointments of high-ranking officials. Moreover, a sub­stantial segment of the public has responded to many of the court’s decisions with alarm, and has made judicial activism a subject of mass de­­mon­­strations as well as a central issue in national elections.

In such circumstances, one would have expected Israel’s legal scholars to play a constructive role in shaping the public debate—by providing well-grounded arguments that could shed light on the pros and cons of judicial activism, by examining the jurisprudential philosophy of the court in its theoretical and comparative contexts, and by offering the public an example of reasoned debate in which adversaries are treated with respect. Unfor­tu­nately, the scholarly community in Israel has not risen to the occasion. With the notable exception of current Supreme Court President Aharon Barak—who, through his many books, articles, and extensive court decisions spanning two decades, has made himself not only the leading practitioner of an activist judicial philosophy but also its preeminent theoretician—Israeli scholars have produced hardly any written work on judicial activism beyond a smattering of narrowly focused papers in law journals. And, since critiques of the trend towards activism have been especially sparse, what little discussion has taken place has been rather uninspired, a dialogue among scholars who largely agree with one another.
But if scholarly writings on judicial activism have been rare, comprehensive treatments aimed at the general reader have been even scarcer.