The Torah and Judicial Reform

(First published at Israel365.com and Israelnationalnews.com)

Did the Supreme Court disqualify Aryeh Deri from serving as a minister because the justices genuinely believed that his multiple criminal convictions rendered him unfit to serve in high office? Or did the Court banish him because it is its last best hope to topple the Netanyahu government and thwart the intended reforms that will dilute the Court’s current nearly unlimited powers? Or maybe it was a combination of the two?

      The fact that these questions are legitimate and that we will never know the answer underscores the credibility problem Israel’s Supreme Court has with a large part of the public. On one hand, there are cogent reasons to ban Deri from serving as a minister. But those same reasons easily pertained to banning him from politics altogether. Thus, on the other hand, it is inherently undemocratic to negate the vote of hundreds of thousands of Shas voters who voted for him knowing of his ethical challenges. It seems odd to allow someone to run with the strong presumption that if his bloc won a majority he (the party leader) would become a minister, only to have an unelected judicial body pull the rug out from under him after the election. It is odder still that the Court took this drastic action without even a semblance of statutory support but simply based on the Court’s own conclusions of what is reasonable. No wonder so many thoughtful people think the Court is out of control and needs to be reined in. 

      In essence, the Court here without authority usurped the role of the prime minister in choosing his cabinet, just as it routinely commandeers the role of defense minister by decreeing security strategy and tactics, just as it routinely appropriates the role of each minister by dictating policy when it is so inclined, just as it arrogates to itself the role of Knesset when the Court invalidates laws or preempts their enactment by leaking that, if passed, the law will be invalidated, and just as it seizes the function of the Chief Rabbinate when the Court deigns to determine conversion standards and which establishments should be deemed kosher. 

      Israel’s Supreme Court thus serves as a Super Minister (above the Prime Minister), a Super General (above the Chief of Staff),  a Super Legislator (above the Knesset) and a Super Posek (above the Chief Rabbis). And it fills all these roles without statutory sanction and without being elected by or accountable to the people – and the Court even controls the selection process of its future members.

       Thus, the Supreme Court controls the judicial branch of government and for practical purposes dominates the executive and legislative branches. If I didn’t know any better, I would think that such an institution is a threat to democracy and needs to be reformed. Imagine, for a moment, that the United States Supreme Court decided unilaterally that it is “unreasonable” that Pete Buttigieg serve as Secretary of Transportation and must be summarily fired. That is not an implausible recommendation but it is unimaginable and unthinkable that such should occur because the US Supreme Court operates under constitutional and statutory constraints. No such limits currently pertain to the Israeli Supreme Court; hence the purpose of the reforms.

     Is there a Torah perspective on the proposed judicial reforms? The instant answer is negative. The secular court system is not a Bet Din and the High Court is not a Sanhedrin (ironically, the Sanhedrin served a quasi-legislative function – but ancient Israel did not have a legislature). The qualifications of the judges and the standards of evidence applied do not adhere to the Torah’s framework for a judicial system. The laws that the Court enforces (or concocts) do not always conform to Halacha  and the Court  for more than a quarter century has studiously avoided applying the Foundations of Laws Act (1980) that calls on the judges of Israel to refer to Moreshet Yisrael (the historical heritage of the Jewish people) when a clear statutory framework is lacking. 

     Instead, it supplants the heritage of Israel and the will of the electorate by basing its most controversial and lawless decisions on, one supposes, Moreshet Tel Aviv, the values of the people (primarily, in the first instances, the justices themselves) whom they deem to be enlightened. And for that, people demonstrate in Tel Aviv and have, through misrepresentations, hysteria, and falsehoods, incited indignation across the world to Israel’s detriment.


      And yet, perhaps we can glean some guidance from the Torah as to the substance and desirability of the proposed reforms. What is the purpose of the judicial system according to the Torah? Well, it is to do justice, which is defined as applying the law equally and fairly to all. The Jewish court does not favor the poor over the rich, the alien over the citizen, the Arab over the Israeli, the Muslim over the Jew, the enlightened over the unenlightened, or the secular over the religious. “Justice” is not social justice, economic justice, racial justice, environmental justice, or any other qualifier. To preface “justice” with an adjective is to distort the very concept of justice. “One law for everyone.” That is the primary role of the court.

      Similarly, since Halacha is given to us as a holistic (and holy) system, the Jewish court does not fabricate laws or substitute its own thinking for that of the Torah. In our context, the role of the court is not to legislate or to create new laws but to interpret the laws as passed by the Knesset and adjudicate cases and controversies that arise between the citizens. Like the other branches of the Jewish government, the system is intended to elicit the divine presence and make us a holier, more faithful people – not a nation that is enamored with Western decadence.

     Furthermore, one of the 613 commandments requires the appointment of judges “in all our gates” (Sefer Hachinuch, mitzvah 491). This is generally done by the people and/or the leadership. The judges do not appoint their successors nor are they given veto power over new nominees as the current Court has, all the better to ensure ideological conformity.

     It is worth noting that the authority of the Sanhedrin derived from the Torah (Devarim 17:11) and thus from G-d. The people accepted its rulings because such deference was commanded by the Torah and rooted in one of the 613 commandments. But from where does Israel’s Supreme Court derive its authority? Presumably from the laws of the Knesset that created it and defined its jurisdiction. Thus when the Court exceeds its statutory authority and adjudicates matters beyond its delegated capacity (such as the revolution waged by Aharon Barak that renders any and all matters justiciable) it has no recognized authority. The government and public’s adherence to those rulings would be discretionary but for Israel’s secular media that treat the pronouncements of the Court with greater reverence that they have for the revelation at Sinai and deem dissenters and even questioners as ignoble heretics.

     Finally, perhaps the greatest lesson from the Torah relates to the qualifications for judges. Certainly, a Jewish court requires “men of wisdom and understanding, exceptional in the wisdom of Torah, with broad intellectual potential, and familiar with other wisdoms” (Rambam, Laws of Sanhedrin 2:1). For our purposes, though, Rambam (2:7) noted that judges should possess “wisdom, humility, fear of G-d, distaste for wealth, a love for truth, beloved by the people and possessors of a good reputation.” We assume that is hard to find – but note the importance of “love of truth” which precludes having a social or political agenda that the judge seeks to implement. Loving truth means following the law even if it does not accord with one’s personal preferences. The judge should be “beloved by the people,” not deem the people as unenlightened, social inferiors, and “possessors of a good reputation,” not usurping authority on specious grounds and threatening civil war if that authority is not conceded.

     The judicial coup d’etat sparked by the Barak revolution has now been joined. Democracy is being defended, not subverted. And the current reforms that seek to limit judicial review, curb the Court’s unlimited powers, restrain its jurisdictional overreach, restore authority to the people, and restructure the judicial selection process have an added advantage: they promote the ideals and values of the Torah as it perceives a functioning judiciary in the kingdom of priests and holy nation.

Death of the Oligarchy

  (First published at Israelnationalnews.com)


Wow! About 80,000 people stood together in the Tel Aviv rain protesting the Netanyahu government and all it stands for and all the people who serve in it and all the policies it wants to promulgate. This is a major news story only in a media that sees itself as part of that crowd and eggs them on through fawning coverage and uncritical support because they share the same hostility towards Israel’s democracy.

     Let’s crunch the numbers. Far more people attended the funeral last week of Rav Shimon Baadani zt”l not too far from the protest site, but that received a tenth of the coverage of these protests. In the middle of Tel Aviv, 80,000 people got together to hammer the new government just days after it took power. But in Tel Aviv approximately 170,000 people voted for the parties that are not in power, including more than 29,000 people who voted for Meretz alone. In other words, the rally attracted fewer than half of the Tel Avivians who voted for Lapid, Gantz, Labor and the defunct Meretz, and they didn’t really have to travel that far. 

     It stands to reason that no one there voted for Likud, the Religious Zionists, Shas or Yahadut Hatorah.  Why then is it even interesting – much less worthy of front page coverage in the Wall Street Journal and banner headlines in Israel’s left wing media outlets – that a relative handful of those whose election favorites lost are disappointed in the results? It is because these protests are aiding and abetting those entities that seek to harm Israel. The disgruntled are bolstering those who profess that Israel is a corrupt, illegitimate tyranny. Free people have a right to protest but thinking people who protest have some attainable goal in mind and know when the exercise of certain rights is foolish and counterproductive. And it has led to the wildest and most outlandish accusations levied against Israel in recent memory: that the peoples’ vote heralds the end of democracy. 

      Irony does not begin to describe how preposterous this sounds. It is quite astonishing how un-self aware many people can be. The protesters bloviate about the death of democracy simply because the people voted as they did, the truest expression of democracy. These democrats like the “crat” (government) a lot more than they like the “demos” (people). They unwittingly recall Brecht’s sardonic advice to the government that had lost the confidence of the people: “it should dissolve the people and elect another.” Worse, they seemed floored that, for once, politicians are trying to implement the platforms on which they run. In essence, they are asserting, politicians who campaign on the issues, attract voters accordingly, and then attempt to fulfill those promises are threats to the public order. That is the height of cynicism, especially in light of the previous government whose leaders voided their promises shortly after the votes were counted. And who then is the real threat to democracy?

      You cannot claim to love democracy and then declare the people’s choices illegitimate. You cannot claim to love democracy and then vest unlimited power in the hands of one or even fifteen unelected people. You cannot claim to love democracy and coyly threaten violence and civil war in order to thwart the will of the majority. Democracy is “government by the people.” Government by the elites is an oligarchy but it is hard to conceive of an international media uproar if the Tel Aviv protesters chanted that the new government represents a “threat to the oligarchy.” It is not as catchy. And there is no more formidable oligarchy in Israel than the judicial establishment.      It takes a special brand of narrow mindedness to bewail the proposed limitations on the jurisdiction of Israel’s Supreme Court. The morally compromised, “two-state delusion” supporting Alan Dershowitz feels that Israel’s Supreme Court is the “gold standard” of international judiciaries. Really? Is he referring to a court that intervenes to halt the demolition of a terrorist’s home but does not intervene to stop the expulsion of 9000 Jews and the destruction of their homes? Is he referring to a legal system that allows the investigation and prosecution of right-wing politicians to continue in perpetuity? Is he referring to an attorney general who sets up himself or herself as an unelected power center to determine which government policies may be adopted and which laws may be enacted by the peoples’ legislature? 

   This Supreme Court did not allow PM Netanyahu when he served as an interim prime minister to appoint a dog catcher in Nahariya while it allowed – in open violation of an existing statute – the previous interim minister to give away some of Israel’s previous natural assets to a hostile foreign power. The legal reasoning that rationalized that and improperly removed its determination from the Knesset is unworthy of a first year law student. 

    The “gold standard” is looking a little tarnished and needs to be polished, which is the purpose of the proposed Knesset legislation that has so relatively few people in a tizzy.  It is the death of the oligarchy, not the democracy, that has brought the likes of Aharon Barak to scream from the rooftops. It seems that many of those who insist that Israel always define itself as “Jewish and democratic” want Israel to be neither Jewish or democratic. They wish to preserve the secular oligarchy that has long trampled on the rights of Israel’s traditional and conservative majority. 

     It is the death of the oligarchy that brought only 80,000 people into the streets. Perhaps that shows that, media oligarchs aside, most Israelis prefer democracy to oligarchy. 

Banana Republic?

(First published at Israelnationalnews.com, January 1, 2023 )

After a series of American objections to Israeli policies (culminating in the annexation of the Golan Heights more than forty years ago) led to protests and suspensions of signed agreements with Israel, Prime Minister Menahem Begin called in US Ambassador Samuel Lewis and gave him a tongue-lashing: “Are we a vassal state? Are we a banana republic? Are we 14-year-old boys that have to have knuckles slapped if they misbehave?” And Mr. Begin continued: “You cannot and will not frighten us with punishments… Threats will fall on deaf ears… We shall not allow a sword of Damocles to hang over our heads. The people of Israel have lived for 3,700 years without a strategic agreement with America, and it will continue to live without it for another 3,700 years.”

     We are missing a Begin-like response today.

      The American government’s hostility to Israel’s new administration is offensive. That is not ameliorated by the fact that it is being prompted, aided, and abetted by so-called American Jewish “leaders” whose progressive politics darkens their attitude towards the Jewish state. The United States has routinely interfered in Israel’s elections, and its domestic and foreign affairs, but the extent to which it is attempting to micromanage Israel’s democracy, duly elected government and policies is unprecedented and shocking.

       We are hearing US government officials stating openly that Israel may not expand settlements in Judea and Samaria and better not annex the central part of our ancient homeland. Furthermore, Israel may not change its rules of engagement under fire for either our military or our police. We may not amend the law and limit the jurisdiction of the Supreme Court nor amend the “Grandfather Clause” of the Law of Return that has engendered the Aliyah of mostly Gentiles to Israel over the last several years, if not longer. Israel may not change the status quo on the Temple Mount – i.e., it must maintain discriminatory policies against only Jews – nor may Israel’s Knesset enshrine religious freedom protections in our laws to prevent violations of conscience created by the new immorality sweeping the globe. Similarly, Israel may not take preemptive action against Iran if it so chooses without prior coordination with the US, knowing that prior coordination will certainly abort the potential success of any mission and knowing, as well, that the US will never take preemptive military action against Iran.

      Most critically, and repugnantly, Israel is being ordered that its newly elected government may not implement any of the policies on which it was elected and for which the government was formed. In essence, the US will only support the new government if it continues the policies of the government that was routed from office and rejected by the people.

      Many Israelis reflexively fear the wrath of Uncle Sam and would willingly forego making any improvements to life in Israel that irritate our benefactor. That contention was never sound, although it was certainly more plausible in Begin’s time that it is today. There is a fear of cutting off American military assistance, but let’s face it. The amount is a pittance in the US budget, not that substantial in Israel’s budget, and – since it is all spent in America anyway – essentially subsidizes the American arms industry which would be the first to protest a cut off. And Iron Dome money is an investment that benefits the US as much as it does Israel.

     How much money are we taking about? By comparison, the US has provided Ukraine in one year with the equivalent of 15 years assistance to Israel. It squandered in Iraq and Afghanistan the equivalent of centuries of assistance to Israel. It is not about the money. It is more about the fear of the unknown, of being disfavored by an older sibling whose approval we crave. But nationhood requires independence and life as a banana republic can get very slippery.

      Add to America’s condescension towards Israel the FBI’s demand that it investigate the death of the shaheed (as the PA media described her) journalist Shireen Abu Akleh. Apparently, the FBI has concluded its investigations of the dozens of journalists and thousands of civilians killed in America’s twenty-year war in the Middle East. And, apparently, it has no time, interest, or resources to investigate the Jew hatred and related attacks that are sweeping across the United States that has made Jews the number one targeted ethnic group in the entire country.

      If interference in domestic affairs of another country is fair game, here are two suggestions: a learned colleague noted that Israel’s Ministry of Justice should send Israeli investigators and attorneys to determine why assaults on Jews go unprosecuted in America – why Jews can be attacked on the street and brutalized and their assailants, if arrested, released immediately on bail, and rarely prosecuted, convicted, or incarcerated. That certainly is unacceptable and should be a high priority for Israel.

      Additionally, Israel’s Ministry of Diaspora Affairs, now headed by the estimable Amichai Chikli, should form a task force to investigate the prevalence and virulence of Jew hatred in America and issue a report that is balanced and caters to no American political party’s agenda. Indeed, such is within the mandate of the ministry which seeks to nurture close ties with Jewish communities around the world and, if necessary, come to their defense. There might not be a Jewish community outside of Israel today that is more under siege than is American Jewry – both spiritually and physically.

      The sad reality is that for all the bluster, America is in decline. It is essentially bankrupt, carrying a debt of over thirty trillion dollars and sustaining its economy only by printing money. Its work force is shrinking as government handouts of the freshly printed money to favored constituents disincentivizes work. Its borders are porous and millions of migrants are pouring into the country, further sapping its resources. Some of those illegals have already introduced into America enough Fentanyl to kill every American several times over. Its infrastructure is collapsing. The recent cold wave killed dozens of people and its electricity grid is unable to fully heat many parts of the country. All that is third world stuff. And its politicians are focused on grandstanding for the cameras, earning money for themselves, and keeping power by suggesting how more awful life would be if their opponents were elected.

     It is also in Israel’s interest, as has happened over the last decade, to cultivate and strengthen ties with other superpowers around the world. America is perceived as weak across the globe (Ukraine has paid the price for that) and nations such as China, Russia and North Korea show it little deference. Israel, then, is a ripe target for bullying to try to regain for the US some international prestige.

      The contempt that the American government has for Israel’s new administration is breathtaking. It deigns to prescribe for Israel who can be a citizen, who is a Jew, how its police and army should conduct itself, what laws we can pass, where and how we can pray, and even where we are allowed to build our homes and factories. In due course, the Americans will insist on setting the price of every Milky and choosing who can light the torches on Yom Haatzmaut. There is no other country in the world to whom it would present such dictates – and no other country in the world would pay any attention to it if it did. Israel should listen respectfully and make its own decisions based on the will of the people and the unique requirements of a Jewish state. That does not mean that we should act in a needlessly provocative way; it does mean we must always act in our interests and refrain from constructive acts only when the balance of national interests weighs against it.

     US resistance – including that of American Jews – to Israel becoming more Jewish should be met with a “thanks for sharing.” Prime Minister Netanyahu is making a mistake if he visits America presuming he will convince them to act on Iran but fully aware that he will just be handed a list of things that he may not do. We should stop the preemptive apology tour and we should forcefully reject the implication that we are a banana republic whose existence depends on American largesse and beneficence.

     Those days are long gone and we should act like it.

Modern Clash

 

   Ben Shapiro’s exposure of the failures of Modern Orthodoxy has generated a lot of waves. Most of those who define themselves that way, he opined, fall into one of three classes: the Secular Orthodox, whose values are almost exclusively engendered by Western progressivism, which they conflate with Torah; the Nervous Orthodox, who try to maintain Jewish values but without attracting attention and so issue statements that require careful scrutiny to understand what they mean and then clarifications after people understand what they mean; and the Clumsy Orthodox, who are faithful to Jewish values but fear the progressive reaction in maintaining them publicly. They try to have it both ways and end up satisfying no one. His main objection is to Modern Orthodoxy’s  wholesale internalization of Western values as if they are Torah values and the concomitant rejection of Jewish values. It is what I termed years ago in these pages the “Orthoprax,” who perform the mitzvot that correspond to their world view but do not feel bound by others, and their value system is utterly alien.

 Rabbi Michael Broyde took issue with Ben Shapiro’s approach without directly engaging or refuting his arguments. Rabbi Broyde’s basic point is that we must follow the lead of Rabban Yochanan ben Zakai who chose to surrender to Rome rather than confront them in battle and was granted “Yavneh and its Sages” which preserved Jewish tradition (and even the royal house of Israel) to live another day and to survive, with G-d’s help, until today. This accommodationist approach has at times served the Jewish people well in exile, and Rabbi Broyde posits that if securing our rights means that we have to acquiesce into granting rights – said another way, become accustomed to sinful behavior – to groups whose conduct is anathema to our traditions, that is a price worth paying. It is a plausible argument.

     Yet, like many uses of historical analogies, they are less persuasive upon analysis than they appear superficially. First, Rabban Yochanan was himself unsure whether he did the right thing in sacrificing the Bet Hamikdash for refuge in Yavneh (Berachot 28b) and some of his most distinguished colleagues (like Rabbi Akiva) disagreed with him and thought he erred grievously (Gittin 56b). That it all worked out is no proof that this was even the best way, as Rabban Yochanan on his deathbed sought to reassure his students that redemption was imminent and they should prepare a throne for Chizkiyahu the king (i.e., the Moshiach) who is coming. But that has not happened yet. Since G-d runs the world, we do not know what would have been the outcome of a different approach; it is the fallacy of post hoc ergo propter hoc. Just because event B followed event A doesn’t mean that event A caused event B.

      Second, and more importantly, Rabban Yochanan’s accommodationist approach is more reasonable in the face of impending doom and destruction – the Churban­ – than it is as we advance towards complete redemption. Indeed, in the dark and dreary exiles where Jews barely clung to our spiritual moorings and our lives and were content enough just to be left alone, the capacity of Jews to spread our divine values was limited. Fortunately, the last major exile to afflict the Jewish people has been the American exile, arguably the most pleasant and congenial of all exiles. Certainly, there are threats and dangers that come from nefarious outside forces, like Jew hatred and the violence it spawns, and there are also those threats and dangers that are self-inflicted wounds, like assimilation and intermarriage. As a Jewish commentator once wrote, the problem in America is not that the Gentiles want to kill us but that they want to marry us. It is the place in which, ideally, the Jewish values can be propagated without fear and can compete quite well in the marketplace of ideas.

     We sell ourselves short if we think that if we wish to propagate the morality of Torah to the broad public – to show them how their lives would be better – then we risk arousing the ire of powerful Roman legions who will vanquish us. If anything, large scale Jewish abandonment of Jewish values in the public domain leaves the impression that we have nothing to offer and there is nothing special about us.

      It is hard to refute the fact that the American exile has been the stopover that is most amenable to fulfilling the Gemara’s teaching (Pesachim 87b) that “G-d only exiled the Jewish people among the nations of the world so that we should gather in converts.” But why would any Gentile want to join the Jewish people if we dilute, mute, or conceal our message? Why would any Jew want to remain part of the Jewish nation – a persistent problem in America – if Jews have nothing to contribute to society other than “let me just secure my rights, even if it means compromising my values”? That message is uninspiring and so most American Jews today are, frankly, uninspired.

     For sure, we need not join every cultural battle. But on issues that affect the viability of the Jewish family and how best to maintain our faith in a society plunging past decadence in outright depravity and the denial of any objective truth, the accommodationist model no longer works. And the proof is that only sin in the Torah that has its own lobby and legal protections is impairing our children’s acceptance of Torah and faith in Hashem. Whatever passions, lusts or devotions motivate the SSA advocates, too many Modern Orthodox children struggle with the divinity of the Torah’s unequivocal prohibition and thus question the imperative of sundry other mitzvot.

     It is this failure of Modern Orthodoxy – whether in its secular, nervous or clumsy formats – that exercises Mr. Shapiro. The Mitzvot are our wisdom and understanding in the eyes of the nations; when we change the topic for fear of social media attacks or something even less frivolous than that, they will never perceive us as a great nation.

     Do the Modern Orthodox have anything more compelling to share in the marketplace of ideas and values than “let’s just all get along”? If not, then it is hard to see how or even why it should survive. It becomes just a social construct with some rituals for ethnic flavoring.

      Fortunately, there are more than Mr. Shapiro’s three aforementioned groups. There are still Modern Orthodox Jews and Rabbis who love the Torah and its mitzvot and are not embarrassed by them or by any Jewish values, and do not hesitate to speak of them with firmness, kindness, sensitivity, and tact. They live by the credo of Rav Moshe Isserles with which he beings the Shulchan Aruch that “one should never be ashamed in front of other people who deride him in his divine service.”

     Those people exist – but they need to speak up and spread the beauty of Torah without fear of human beings and their Twitter or Facebook accounts. After all, it was the same giant, Rabban Yochanan ben Zakai, who chastised his students that their fear of man exceeds their fear of G-d.