Hard Cases Make Bad Law
by Jonathan Rosenblum
February 18, 2011
In the course of law school, every student will hear many times, the dicta: Hard cases make bad law. Hard cases refer to ones where all one's emotional sympathies are with one party, and that sympathy leads to an effort to enunciate some legal principle to justify ruling in their favor. But once laid down, the legal principles used to justify the result in the "hard" case, often prove to be poorly developed and result in skewed outcomes in subsequent cases – i.e., bad law.
Too many major political decisions in Israel follow that pattern of being determined by emotional considerations with inadequate attention to the long-range consequences. The 2001 withdrawal from Lebanon is a classic example. At the time of the withdrawal, the IDF was losing over twenty soldiers a year in southern Lebanon. That is an extremely heavy price. But like every other decision in life it has to be balanced against the likely consequences of not paying that price.
That was never done. The Four Mothers movement, aided by the media, kept the focus exclusively on the casualties so that the question in the minds of the public became framed as: Are you for or against the loss of 23 Jewish soldiers annually? Put that way, there will not be many "ayes". Channah Naveh, the chief editor of the IBA News, later boasted that she together with military reporter Carmela Menashe and morning host Shelly Yachimovich played a major role in bringing about the IDF withdrawal and our abandonment of our southern Lebanese allies.
Each of the three had a son serving in Lebanon, and as Naveh put it, their actions "came from the guts." One can forgive their desire as mothers to do everything possible to ensure the safety of their sons. The problem is, however, that the entire rest of the country came to view the issue only through the lens of mothers of sons serving in Lebanon.
The Lebanon withdrawal and the haste with which it was executed conveyed to the Palestinians the message that Israelis could not bear any level of casualties and thereby provided much of the inspiration for the second intifada, which claimed over 1,000 Israeli lives in the three years following withdrawal.
Even worse, the withdrawal of the IDF created a vacuum into which an Iranian-backed Hizbullah moved quickly to seize complete control of southern Lebanon. The 2006 Second Lebanon War, which claimed over 120 soldiers, brought civilian life to a virtual halt in the northern part of the country for a month, and did such great harm to Israel's deterrent capability, was the first consequence. Today, Hizbullah is the dominant power in Lebanon, and has an arsenal of 50,000 missiles aimed at Israel, with an ability to strike anywhere. Another war with Hizbullah could come with a cost of hundreds, even thousands, of Israeli lives.
The lives of the IDF soldiers lost in southern Lebanon were a vital concern. But they were not the only concern. Yet that's how the public debate went, as our hearts and guts were tugged at by the Four Mothers movement and the media. The result has been the loss of many hundreds of Israeli lives, and the potential for far greater losses in the future.
IN NO AREA HAS THE TENDENCY of the media to focus on the emotional angle exacted a higher cost than with respect to prisoner exchanges. It is perfectly understandable that the parents of captive soldiers or other prisoners would do everything in their power to bring their sons home, including exerting pressure on the government to capitulate to the demands of the captors. But that does not excuse the media turning all of us into the parents of Gilad Schalit or other captives. At the very least, the media should provide some countervailing pictures of the victims and bereaved families of released terrorists, who returned immediately to their former path.
The cost of considering only the point of view of the captives' families has been very great. In 2003, the government exchanged hundreds of security prisoners for a shady businessman, Elchanan Tannenbaum, and the bodies of three soldiers killed by Hizbullah in a kidnapping attempt on Israeli soil. Tannenbaum was kidnapped by Hizbullah outside Israel, and the high price paid for his return only encouraged Hizbullah to attempt more such extra-territorial kidnappings of Israeli citizens.
The 2008 release of a large number of security prisoners, including the vicious killer Samir Kuntar, for the bodies of Ehud Goldwasser and Eldad Regev further reinforced one of the unhappy lessons of the 2003 exchange: Israel will pay for dead bodies almost as much as for live ones. At no time in the negotiations, did Israel demand proof that Goldwasser or Regev were alive or act as if it made a great deal of difference to the negotiations. That approach takes away any incentive from ruthless organizations like Hizbullah to treat captives well. Moreover, the return of Kuntar signalled to would be terrorists that there are no acts so heinous that one is sure to spend the rest of one's life rotting in prison.
The willingness to pay any price in a prisoner exchange, can even harm the immediate goal of securing the release of the Israeli captives. Yuval Diskin, chief of Israel's Security Agency, said two weeks ago that he cut off negotiations with Hamas at one point when he realized that Hamas would continue upping its demands for Gilad Schalit because they were convinced that Israel public opinion would force the [Olmert] government to accept any demand. Thus those who said "no price is too high" actually ensured that Hamas reached a price that was too high and helped ensure that Schalit remained captive.
IMMIGRATION POLICY is another area in which highly charged emotional arguments have often interfered with rational policymaking. The slogan, "If he was Jewish enough for Hitler, then he is Jewish enough for us," prevented any revisions of the Law of Return and the Law of Citizenship during the period of mass aliya from the FSU. As a result of bringing to Israel tens of thousands of people who could claim one drop of "Jewish blood," and in many cases collateral relatives without even that drop, the Jewish state now has its own neo-Nazi movement and Russian-language bookstores specializing in anti-Semitic classics.
Today, comparisons to Jews fleeing over the Swiss border during the Holocaust are delivered as irrefutable arguments whenever government policy to Sudanese refugees is discussed. But even on their own terms, the Holocaust metaphors are flawed. Jews fleeing into Switzerland were all under a death sentence if returned to Germany or Nazi-occupied lands. Sudanese who enter Israel via the Sinai are fleeing from a horrible, war-torn land to one of relative safety and prosperity. But few of them have been sentenced individually or collectively to death in Sudan.
Our grievance against the behavior of the Western nations during the Holocaust is not that any particular nation did not take in every Jew under a threat of death, but that collectively they were indifferent to the fate of the Jews. As historian David Wyman has written with respect to the failed Bermuda Conference, the great fear of the Allies was not that the Nazis would refuse to release captive Jews, but that they might.
Thus far no other nation has offered to share the burden of refugees who have made it to Israel. While Israel is a relatively prosperous country, it is also a small one. And it cannot absorb an endless stream of people seeking to escape abject poverty, without creating urban ghettos and sowing future social problems that will drain scarce resources. The more desperate refugees congregate in Israel the greater the toll on Israel's identity as a Jewish state, which is the fragile glue holding the country together and providing its citizens with the will to fight for their future.
All of the emotional arguments we have mentioned are worthy, and are rightfully part of the policymaking equation, but when they are allowed to become the entire equation, potential costs future costs are often ignored at a high price.
Related Topics: Israeli Society, Jewish Ethics, Social Issues, War in Lebanon
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