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Wednesday, February 01, 2006

The rule of law, but of what law?

In today's JPost, Daniel Izenberg raises the specter of Haredim and National Religious citizens revolting against the State of Israel in The rule of law, but of what law?:

If the court's role is to make sure that the laws approved by the Knesset are just and in keeping with society's allegedly highest and most enduring values, it is the role of the government to make certain that the laws approved by the Knesset are enforced.

In more cohesive societies, law enforcement is usually aimed at individual lawbreakers. But in a highly divided society like Israel's, where there is no consensus on fundamental religious, ideological and ethnic issues, it is impossible for the law to embody such a consensus.

The events of any ordinary day prove this over and over again. Take Tuesday for example.

In Jerusalem District Court, Yishai Schlissel was sentenced to 10 years on charges of attempted murder for having stabbed three people during a Gay Pride parade in Jerusalem. "I came on a mission from God to kill," he said. "There cannot be such an abomination in this country."

Meanwhile, haredim rioted and blocked roads in Jerusalem and Tel Aviv after a court of law gave permission to the police to perform an autopsy on a woman to determine the cause of her death. "Every time the corpse is touched causes horrible torment to the soul of the dead," haredi rioters were quoted as saying.

At the same time, thousands of settlers and their supporters flocked to the outpost of Amona to resist - in some cases violently - the demolition by the army of nine permanent houses built without permission, without an approved planning scheme and, most likely, on land belonging to others. The facts of the matter are no more than a minor nuisance for the settlers. What matters is that God, himself, has given them the Land of Israel.

Izenberg is off the mark for many reasons. First, the Israeli Supreme Court does not just "make sure the laws are just," it has been making the law. Having done away with the concepts of "standing" and "justiciability" to open the court's doors, the court has been using two "basic laws" - that were passed with a less than a quarter of the members of the Knesset in the chamber - to legislate 'rights' that the legislators would never have thought of in their wildest dreams.

Second, the court has become a self-perpetuating institution that requires subscribing to Chief Justice Barak's hard left world view laced with 'judicial activism.' If you dissent from Barak's politics, as Professor Ruth Gavison found out recently, you're not a worthy candidate for the court.

Third, Izenberg makes a salad of three cases that are totally unconnected. In Schlissel's case, the court is right: stabbing people is not a way to bring about civil discourse and he should be punished for it. But in the case of the Haredim protesting the autopsy, my guess is that in any other western country, the family would be within its rights to say no. From reading the article about it, it sounds like the autopsy was pointless anyway - everyone knew the woman had been murdered. And in the case of 'Amona,' which only got worse today after Izenberg's article was written, the protesters are reacting to being shut out of the legislative process by having the unelected court enforce laws for an unaffected Peace Now. That case never should have been in the courts at all.

Fourth, the court's real role - which it has only undertaken selectively and inconsistently - is to protect minority rights. Under Aharon Barak, it is common knowledge in right wing circles that Arab rights will be protected to the hilt, as will those of other politically correct groups (gays, draft dodgers so long as they are not dodging 'disengagement' duty, etc.). But the rights of Haredim, other religious Jews and anyone on the political right will be trampled upon whenver the court's convenience requires it. People seem to forget that the largest demonstration ever held in this country was not over war or peace, but over the Supreme Court's handling of Haredi litigants.

Government is dependent upon the consent of the governed. When people feel that they have a voice in the government and can give their consent, laws are generally obeyed. When people feel that they have no means of influencing the government and that it is running roughshod over their rights, they ignore the law and/or protest.


At 12:11 PM, Blogger Soccer Dad said...

Hi Carl.
This is David Gerstman (I don't know if you remember me from 30 years ago.) These days I'm also known as Soccer Dad!

This is excellent and I want to encourage you to submit this to Haveil Havalim, the Jewish/Israel related blogging carnival. It's a part of the news that most people would be unaware of. Joe Settler recently wrote about it too. And when I commented on his observation I went to the APN website and was upset about how they described Gush Etzion.
It's amazing to me that Peace Now has lost every single election in the past 2 decades and claim that the "settlers" are out of touch. But they persist through what can only be described as "extra-legal" means.


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