Author Archives: Rabbi

 

     Yes, you read that headline correctly, notwithstanding that it is countercultural, even counterintuitive.

     Civil disobedience is a cherished right in democracies and dictatorships, although the stakes in expressing that right in dictatorships are riskier and graver. It allows a citizen to proclaim his or her dissatisfaction with a governmental policy that so offends the conscience that he cannot sit idly by. Instead, the dedicated denizen takes to the streets, breaks the law and is willing to suffer the consequences for doing so. Thus, we are witness in Israel to demonstrations (relatively small in comparison to the population, and even the number of voters the opposition attracted in the last election) that block streets and highways, disturb people’s lives and constitute a blatant attempt to intimidate the government into not implementing the policies for which it was elected.

     Yet, a critical aspect of civil disobedience seems to be lost on both demonstrators and the government. By definition, and here I cite from the Encyclopedia Britannica, “the civil disobedient, finding legitimate avenues of change blocked or non-existent, feels obligated by a higher extra legal principle to break some specific law. It is because acts associated with civil disobedience are considered crimes, however, and known by actor and public alike to be punishable, that such acts serve as a protest. By submitting to punishment, the civil disobedient hopes to set a moral example that will provoke the majority or the government into effecting meaningful political, social, or economic change.”

     We hear a lot about the right of civil disobedience in Israel – and almost nothing of the punishment that is due such protesters and for which, ostensibly, they are willing to break the law and lose their freedom. National  Security Minister Itamar Ben Gvir’s decision on Wednesday to order the police to break up the protests that blocked road and highways is long overdue and the meager number of arrests that have been made are sad proof of the government’s unwillingness to fulfill its side of the civil disobedience bargain: arrest the demonstrators who break the law even as they pay attention to what the demonstrators are saying.

       Civil disobedience without arrests is anarchy, and anarchy is the enemy of democracy.

      It is axiomatic that the civil disobedient is a minority of the society trying to enforce his views on the majority. It is a failure of democracy – and an insult to the law-abiding public – that protesters are allowed to break the law with impunity. Blocking highways is a crime – go ahead, you try it because you don’t like something the government, right or left, is doing. It should be prosecuted vigorously and the convicted should spend at least a week in jail. They should put their liberty where their mouth is.

      Worse, in Israel’s context, the double standard that pertains is most execrable, disgraceful and unbecoming a moral and just society. The demonstrators against the expulsion from Gush Katif were hastily beaten and jailed, and some for weeks and months without charges. Somehow this highly- acclaimed, vaunted right of protest (the “linchpin of democracy,” we are lectured) did not apply to them. The reason is obvious: they were, after all, just religious right-wingers trying to protect thousands of settlers from a grievous, tangible injury (and protect the nation from an irredentist enemy that would use its gifted territory as a springboard for rockets and missiles to be launched against Israel). They were not secular left-wingers protesting amorphous and contrived “threats to democracy” implicit in… what? Depriving the Supreme Court justices of the right to choose their successors? Limiting the Court’s jurisdiction to cases and controversies, not political matters? Restoring the balance between the various branches of the government? Nevertheless, the Gush Katif protesters were treated mercilessly and pilloried in the media, even as the so-called protectors of democracy are being coddled.

     The disparity in treatment per se is proof of the necessity of judicial reform.

     What has been lost in the media maelstrom that has produced a deluge of hypocrisy is that there are other cherished rights in a democracy in addition to the right to protest. Here are some: there is a right of free passage. Each citizen has the right to move freely in society and not have his way obstructed by others. There is a right of commerce. Each citizen has the right to go to work, earn money, and support his family, without having that right encroached upon by people with a political grievance. There is a right of free association, to meet friends and family in an organized fashion and not be impeded by those who are over-enthused and overwrought by the esoterica of the appropriate balance of power in a democratic government.

     The right of protest is not superior to the right of free movement, the right of commerce, and the right of free association. They are all cherished rights. Those who want to take off from work, stand on the side of the road, wave flags and scream about democracy and the end of the world are welcome to do so. Those who block roads and highways and thus interfere with people who wish to attend a funeral, see a doctor, visit friends and family, go to work or simply enjoy the sights of our beautiful G-d-given country? Well, those people should be unceremoniously arrested, prosecuted and incarcerated if convicted. The roads and highways do not belong to them and should be cleared of these malcontents. That too is democracy.

     Needless to say, a hallmark of democracy is also heeding the results of an election. Those who claim that the judicial reforms were sprung on an unknowing nation are simply lying through their teeth. There are no two more level-headed politicians in Israel that Yariv Levin and Simcha Rothman. Their reform proposals have been discussed for several election cycles now. I personally heard them speak about them during the most recent campaign. Those who claim they are new were simply not listening, which, in a polarized society, is a big part of the problem.

       The right of civil disobedience is fundamental to a democratic society. But so is the obligation to protect the rights of non-protesters, enforce the law, clear the roads and highways, and jail the lawbreakers. Those who truly believe in democracy know that. Those who don’t will continue to cry about democracy when what concerns them most is loss of their undemocratic and unelected power base. They will generate shrill headlines about “the right of protest” and willfully ignore the rightful consequences of protest. Whatever it is they are fighting to save, it is not democracy.

     The politicians in opposition know better. They should so inform their minions – of freedoms, rights and consequences. That would be a public service. And they – most of whom have also called for judicial reforms in the last decade – should spell out in detail what they mean, negotiate in committee, make suggestions, vote for the bill if they like it and vote against if they don’t.

     That is democracy. It is not just the right of civil disobedience, which is just one right among many. Let the government enforce the law uniformly, which is the only way to ward off true anarchy and worse. And let the government advance the reform bills and vote on them, quickly but judiciously. We have real enemies out there. Let’s fight them, not each other.

Get your copy of my just-released “Road to Redemption” available at KodeshPress.com and at fine stores near you.

(First published at Israelnationalnews.com)

There is an old trial lawyer’s maxim that “if the law is against you, pound the facts. If the facts are against you, pound the law. If the law and the facts are against you, pound the table.” Consider the wave of protests in Israel against the proposed judicial reforms the equivalent of pounding the table. It would be a shame, an offense against democracy, and the humiliation of a right-wing government if it allows these protests to derail the proposals and delay the process. These protests are Israel’s equivalent of January 6 – the supplanting of democracy with mobocracy – except that I fear that the January 6 rioters at the American Capitol were a little more sincere in their beliefs.

First, the facts. The weakness of the protesters’ arguments is illustrated by their ever-shifting nature. Some just obsessively hate Binyamin Netanyahu and so must oppose anything he supports. The suggestion that any of these reforms will impact his interminable trials is absurd and far-fetched, and is an accusation that is incessantly repeated without a shred of evidence to support it. He’ll be able to have more influence over the composition of the Court years from now? His trial will still be going on? He’ll be able to pass legislation shielding him from liability – and not pay a political price for that? The answer in a democracy is more democracy, not less.

Second, the notion that the proposed reforms will impair Israel’s democracy is similarly ludicrous and is made by those who assume that asserting it monotonously is itself proof of its veracity. The obvious implication is that for the first 50 years of Israel’s existence it was not a democracy and only became one when 25 years ago Aharon Barak usurped the rights of the people and imposed a judicial fiefdom in which a dozen or so robed lawyers make decisions in every aspect of life – political, religious, financial, military – instead of the people’s elected representatives and its duly constituted coalition government. It sounds as ridiculous as it reads. It cannot be a “threat to democracy” if the goal is to restore Israel’s democracy to what it was before the Barak revolution. Government by a few oligarchs is the quintessence of democracy, not the rule of the people? Why have elections altogether if the people’s choices are frustrated in their ability to implement their platforms?

The obvious answer is that the will of the people is only obstructed when they elect a right-wing government that adheres to tradition, love of the people and land of Israel, and willing to take a strong hand against our enemies. When the people – very sporadically, reality reminds us – elect a left-wing government the Court turns a blind eye to its excesses and trampling of human rights.

Thus, third, the talk of civil war and the civil disobedience that is accompanying it and interfering with people’s rights should not be tolerated. Israel’s right-wing, not to mention the settlers themselves, endured an unforgivable trauma when 9500 Jews were expelled from their homes in gush Katif and northern Shomron. The High Court will intervene and halt an attempt to remove a fence illegally erected by Bedouin to seize more land – and ignored the expulsion of thousands of Jews from their homes? Spare us the crocodile tears, the faux outrage, and the placards decrying these reforms as grounds for civil war and a threat to democracy. If the right didn’t attempt to overthrow the democratic process during the expulsion from Gaza (even though that ignoble process was a corruption of democracy) the left should not be making threats about changes to the Court’s method of judicial appointment and the limits of the Court’s jurisdiction. This is not a civil war over slavery or national destiny; it is a threat of civil war from the people who – like on January 6 in DC – do not respect the results of a democratic election in which those who voted for the government were fully aware of the proposed reforms and voted accordingly. 

Moreover, we should certainly contrast the treatment of today’s rioters and the protesters of the Gush Katif expulsion. The latter were told that their protests were a breach of democratic norms, thousands were arrested, and thousands more were kept away by the government artificially closing roads and access points to them. The judicial reforms protesters, by contrast, are coddled, allowed to block intersections at will, upset people’s schedules and lives, and are celebrated in the media. Anyone who wants to know why there is such distrust on the right of Israel’s Supreme Court and mainstream media should look no further than the disparate treatment between the two groups. Aharon Barak had no sympathy for the plight of the settlers in Gush Katif and so stripped them of their human rights, permittted their expulsion, the destruction of their homes, the extinction of their businesses and even the uprooting of their dead from their graves. That is not equality before the law but simple power politics, and cruel and mean-spirited at that. Equality before the law means applying laws of civil disobedience consistently across the political spectrum.

Fourth, the threats of grievous harm to the economy are objectively preposterous – unless they are promoted by these suicidal activists. It recalls the statement made by a historian, in another context, that the demonstrators are trying to induce “a real life disaster in order to thwart a mythical catastrophe.” If anything, investors seek a business climate that is stable and in which contracts are respected – not one in which a Court can unilaterally impose its reading of a contract on the parties, against their clear meaning and intent, simply because it wants to do so. The reforms will strengthen the business climate unless the protesters, in their madness and anger against their loss of power in a democracy, sabotage their own businesses and Israel’s prosperity. Sadly, in the Middle East, suicidal misbehavior is not unknown. And, if in the short term, there is a brief economic downturn? We survived Pharaoh, and can survive this as well, especially in a world where Israel’s know-how is desired and benefits millions of people.

Fifth, the exaggerated and risible laments have purposely triggered politicians across the world to weigh in on Israel’s domestic concerns, quite an embarrassing display. It has even induced President Joe Biden to demand that Israel’s Parliament act only with a national consensus. Perhaps he forgot – his words are usually written by others – that in the United States he passed his signature legislation without a consensus, relying just on a narrow Democratic majority. Hmmm, yes, he must have forgotten that before he started to lecture us about our legislation.

The best thing the government can do – besides arresting and incarcerating those who block roads and highways – is pass the legislation quickly, and two weeks afterward people will have moved on to something else. Negotiations on proposed legislation takes place in committee; those who choose to boycott, scream, obstruct and intimidate but not offer any cogent proposals forfeit the right to have their voices heard where it counts – in the Knesset, not the street. (The fact that so many protest leaders – including the politicians have called for similar reforms in the past only underscores the hypocrisy of the left and the political farce it is orchestrating.)

Nothing will change in Israel, and the people’s inclinations and policy preferences will continue to be thwarted, unless the Court’s jurisdiction is limited and the override clause is passed. Without that, any legislation including a change in the composition of the judicial selection committee will be overturned by the Court which perceives itself, wrongly, as the ultimate power in society. Similarly, the Knesset must pass a law permitting override of Supreme Court decisions that repudiate its laws. What is the threshold? It is a good discussion, but is a civil war justified if the threshold is 64 and not 67? That too is absurd. Of course, 64 seems too convenient (the coalition’s current Knesset majority), but if the threshold is 65 or 67, then a Supreme Court majority of 13 or 14 justices (not 12) should be mandated if the Court wishes to invalidate a law passed by the Knesset. After all, if a Knesset law is so egregious, the politicians will pay a steep price at the next elections, of which in Israel there is no shortage. And judges, despite their arrogant overreach, never pay a political price for anything. Those who are unaccountable to the public should be wary of imposing their views on the public, not eagerly and tendentiously seek such opportunities.

And obviously, there should no such individual in a civil society like Israel’s Attorney General who unilaterally has the right to order the government to do something or not do something, invalidate legislation or demand legislation. Why vote for a government if power is so concentrated in one person?

It is difficult to conceive of any Israeli who voted for the current government joining or supporting the protests or even having sympathy for them. As such, what we see before us are the sour grapes of sore losers who would rather destroy Israel as a Jewish state and a prosperous democracy than to see a right-wing government succeed in the mission for which it was elected. They have no respect for the people’s vote; why then should they respect the time, lives and livelihoods of their fellow citizens? I hope the small number of protesters – a small mob in comparison to the population that voted for the government – has the decency to stop pounding the table, that the government has the strength and courage to pass the reforms and quickly, and we can return to facing and overcoming the real challenges that threaten our peace, prosperity, unity and holiness.

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     The left-leaning Israeli media is disseminating news articles transmitting the discontent of American Jewish leaders with the new Israeli government and the policies it wishes to implement. A good example of this genre is the recent headline that blared “169 liberal US Jewish leaders sign letter expressing concern over Israeli government.” These leaders headed non-Orthodox rabbinical seminaries, federations, AIPAC, the Conference of Presidents and others, and they decried accusations of “anti-Semitism” directed against critics of Israel’s government (I haven’t heard any but be that as it may) as well as the now familiar laments about the proposed judicial reforms that will preserve Israel’s democracy and the amendment to the grandfather clause in the Law of Return that currently allows third-generation Gentiles to become Israeli citizens as “Jews.”

      The lines are drawn and there is little I can do to assuage their “concern over the Israeli government.” What I can do is this: express my concern over the state of American Jewish leadership. And these concerns are well founded.

      It is not only that these leaders are self-appointed and often found their own organizations of which they anoint themselves the leaders for life. It is primarily that these leaders are presiding over the rapid decline and disappearance of American Jewry under the dual albatrosses of assimilation and intermarriage. The population of American Jewry is steadily declining, artificially sustained only by counting halachic non-Jews as part of the Jewish community (even those who do not perceive themselves as such). The intermarriage rate among American Jews outside the Orthodox world hovers at around 75%. I am concerned about that because I grieve at the disappearance of every single Jew.  I am concerned about American Jewish leadership’s attitude toward this problem and lament their inability or reluctance to do anything about it.

     I am concerned over the drift over American Jewish leadership from liberalism to the far left, the progressive end of the political spectrum. I am concerned that the Reform Jewish movement proudly features on its website an article entitled “Why Pronouns are So Important – and Why Using the Right Ones is so Jewish.” I am concerned because that is not at all important (in fact, it seems ridiculous and a denial of reality) and it is not at all Jewish. I am concerned because American Jewish leadership seems enamored with every progressive cause far more than they are with Torah knowledge and observance of mitzvot, Jewish identity and Jewish continuity. Indeed, as the progressives embrace anti-Israel activism in all its forms – delegitimization, boycott, divestment and sanction, I am concerned that American Jewish leaders will ultimately fall into lockstep with these Jew haters so as to remain in their good graces.

     I am concerned that American Jewish leaders do little to try to influence Jews to be more Jewish – more learned in Torah, more observant of mitzvot, more inclined to marry Jews and have Jewish children and grandchildren. Some of these signatories are intermarried themselves.

     I am concerned that American Jewish leaders have fallen into the trap of denouncing anti-Jewish attacks from so-called right wingers but rarely (or never) if perpetrated by leftists, progressives, blacks or Muslims. I am concerned that they downplay or ignore assaults on easily-identifiable religious Jews. I am concerned that many American Jewish leaders have come to the defense of Ilhan Omar and Rashida Tlaib, blatant Jew haters but, nevertheless, still Democrats, like almost all of these American Jewish leaders, and thus must be defended.

     I am concerned that American Jews have so many problems – internal and external – and American Jewish leaders are racing, tripping over themselves, sending letter and issuing daily statements criticizing Israel’s democracy and opining on pending legislation, which, by any reasonable reading, will have absolutely no effect on American Jewry (not even revising the grandfather clause pursuant to which very few Americans ever apply for Aliyah).

      I would be even more concerned if I hadn’t seen this movie before. In this week’s sedrah (Beshalach), God eschewed guiding the Jewish people to Israel through the shorter sea route and instead takes the more arduous wilderness journey “lest the people reconsider when they see a war and return to Egypt” (Shemot 13:17). A few days later, the people saw the approaching Egyptian army, fearsome in its might and capabilities, and complained to Moshe: “Was there a shortage of graves in Egypt that you took us to die in the wilderness…Did we not say ‘better to serve the Egyptians than to die in the wilderness’” (14:11-12)?

    The “people” feared a war and the “people” complained to Moshe.  And where were the leaders, the heads of the Jewish tribes and organizations, to calm the people, to explain to them the situation, to have faith in God and confidence in Moshe? Where were the Egyptian-Jewish leaders to assist Moshe?

     The answer is that they were long gone. Moshe and Aharon appealed to them before the first summit with Pharaoh and they were enthused with Moshe’s mission and the impending redemption – until they had to undertake personally the risky assignment of accompanying Moshe and Aharon to Pharaoh. They did not quite make it. Rashi (5:1) comments that one by one these leaders slinked away out of fear of what Pharaoh would say or do. They were not “leaders.” They had organizations and titles but they could not lead people and they could not even follow Moshe. So, confronted with George Patton’s choice of “lead, follow or get out of the way,” they got out of the way, and quickly. Moshe (and Aharon) had to lead alone, by themselves. Thereafter the people approached them, directly, without any intermediary. They had other “leaders” in name only.

     American Jewish leaders profess to support a Jewish and democratic Israel. Yet they blithely oppose legislation that would make the State of Israel more Jewish (repealing the grandfather clause) and more democratic (reforming the judiciary). They need to get their house in order. I do not doubt their sincerity. These leaders are dedicated professionals. But their misguided choices, shallow understanding of Torah and failure to adequately address the real problems of American Jewry has me concerned.

     And that should concern all Jews who are lovers of Israel and the Jewish people.