By Yonoson Rosenblum | FEBRUARY 28, 2023
"Kadi justice" — a Middle Eastern sheikh sitting under a palm tree dispensing justice according to his whims of the moment
ast week, we saw how Aharon Barak's philosophy — that there is a legal rule governing every human interaction, and it is judges' duty to discover that rule — inevitably leads judges into areas where they have nothing besides their own value preferences to guide them. The result is what a law school professor of mine used to call "Kadi justice" — a Middle Eastern sheikh sitting under a palm tree dispensing justice according to his whims of the moment.
A High Court case from more than two decades ago captures beautifully this aspect of Israeli justice. Four teenage deviants petitioned the High Court to order the government's Educational TV to show a documentary they had prepared celebrating their lifestyle. Judge Kedai's opinion for the Court was notably brief. The documentary in question, he wrote, would not in his judgment do any harm, and it might even increase tolerance, and so Educational TV should show it.
The High Court thus created, without acknowledgment, an entirely new right to have one's life celebrated on Educational TV, provided it does no harm. From where did it derive that right? From the ether?
No less remarkable, it does not seem to have ever occurred to Judge Kedai that there might be hundreds of thousands of parents in Israel who would be highly dismayed by the promotion of lifestyles that are anathema to them and directly contrary to their education of their children.
Does anyone imagine that if four chareidi teenagers had produced a documentary on their lives, the High Court would similarly have ordered Educational TV to screen it? Obviously not. But if so, then the Court's ruling was nothing more than an expression of its particular "values."
Moreover, the decision demonstrates how unreasonable the "reasonability" standard applied by the Court is. It means no more than that the judges in a particular case found something to be a bad idea or a good one. But the place in a democracy for the promotion of good ideas or bad is in the democratically elected legislature.
Fortunately for me, I was exposed to the Yale Legal Realists in law school prior to immersing myself in the decisions of the Israeli High Court. The Realists, whom former Court President Aharon Barak frequently refers to favorably in his writings, taught that judicial decisions are more likely to be determined by the judge's upbringing, education, and economic class than by abstract legal principles.
And indeed in deciphering pairs of Israeli cases, the results often seem to be inexplicable without knowing which side of the Israeli political spectrum is being served. That is certainly true, for instance, in the cases discussing the powers of a "caretaker" government, where the only discernible principle is: Likud-led governments lose; non-Likud governments win. (See "He Who Grabs Too Much..." Issue 945).
Over twenty years ago, the High Court issued two decisions relating to free speech on the same day, with both opinions written by Judge Theodore Or. In one case, it reversed the conviction of Arab-Israeli journalist Mohammed Jabarin, under a criminal statute forbidding "publicizing words of identification with or praise of acts of violence capable of causing death or injury to a person." Jabarin had written, "When I throw a Molotov cocktail, I feel I have found my identity and that I am defending that identity. I feel I am someone worthy of living an honorable life."
In the second case, the High Court reversed its previous acquittal of the late Binyamin Kahane Hy"d, under a statute prohibiting "arous[ing] strife and hatred between different groups of the population," statutory language that could refer to the majority of political discourse in Israel then as today, with calls by leading politicians for blood in the streets. That statute would surely have been struck down by the US Supreme Court as "impermissibly vague." The Supreme Court has also held numerous times that the First Amendment protects hate speech.
Kahane's crime was distributing pamphlets wondering why the government had bombed Hezbollah in Lebanon rather than "wiping out the viper's nest in Umm el-Fahm," in response to the murder of three IDF soldiers by three residents of the Arab Israeli city.
Under traditional free speech analysis, only speech akin to yelling "fire" in a crowded theater can be criminalized — i.e., where life-threatening consequences are all but inevitable. Moreover, the charging statute must be read as narrowly as possible. Clearly Jabarin's statement constituted more of a "clear and present" danger than did Kahane's. Kahane's rhetorical question at most urged action by the IDF, not by any private citizen.
Jabarin's statement fit squarely with the statutory language ("praise of acts of violence likely to cause death"). So Judge Or gave the statute a fanciful reading, as referring only to acts of violence by terrorist organizations, and acquitted Jabarin on that basis. As a matter of statutory interpretation, there was little to be said for that reading. And as a matter of policy, it was absurd. We Israelis have learned well that we have as much to fear from "lone" terrorists as from organized terror cells.
Or gave no such creative reading, however, to impermissibly broad language of the statute under which Kahane was charged. Yet the adjacent provisions of the statute would have supported a reading of the statute as referring only to calls for "rebellion" against the government.
Judge Or might also have noted, for instance, how selective have been prosecutions under the statute. No Jew calling for the killing of chareidi Jews had ever been charged under the statute. Not Professor Uri Ornan for advocating that chareidim be "hung from lampposts [and] be sentenced to death"; not Am Hofshi's Ornan Yekutieli for suggesting, "We should go into Meah Shearim with army vehicles and exterminate them."
The Legal Realists analysis of the High Court's free speech jurisprudence would read: Arabs who call for violence against Jews win; Jews who call for violence against Arabs lose.
ON OCCASION, something like outright hostility to Torah Judaism shines through the Court's decisions. That is not to say that Torah Jews never win in the High Court. The Court did not allow the Bennett-Lapid government, for instance, to deny certain governmental benefits to families of kollel students. Nor is it to say that all the High Court judges are identical in this regard, particularly in the post-Barak period. In the earlier period, all the judges were within a few years of each other in age, had been trained in the same law schools, and, in many cases, had followed nearly identical career paths. No more than one at a time was ever shomer Shabbos.
In an obscure case from Barak's days, Mealreal, the Court struck down an administrative regulation banning the import of non-kosher meat. Barak offered a simple explanation for the ruling: "Israel is not a theocracy." Yet that regulation had been in effect since the early days of the state and was initially promulgated by a left-wing government that could hardly be suspected of seeking to impose a theocracy. That same founding generation, incidentally, gave the Chief Rabbinate official status and wide authority over all matters pertaining to marriage and divorce.
Was Barak laying the groundwork for a full-bore attack on the entire religious status quo and on any legislative or administrative acknowledgment of Israel's claim to be a Jewish state in its regulation of its public spaces — e.g., bans on the sale of chometz during Pesach, municipal limitations on the sale of pork, etc.? (The chometz law, incidentally, has a far larger positive impact on the secular population, in reminding them that they are members of a people with a long history, than on the religious population, which follows its own standards of Pesach observance.)
In other cases, the Court has taken a hostile attitude to any form of gender separation, whether in college and university classrooms, at a Motty Steinmetz concert in the chareidi city of Elad, or in municipal swimming pools, even in areas with large Arab and chareidi populations. Those decisions generally relied on the principle of "equality," even though the drafters of the Basic Law: Human Dignity, deliberately and explicitly excluded the term "equality" from the statute.
Moreover, in each of these cases, men and women are equally separated from one another, and by their personal choice. Mixed alternatives are readily available. The Court-imposed restrictions on gender separation at the university level, in addition, greatly impedes the integration of chareidim into the workforce, which successive governments have declared a vital public goal.
RABBI YEHOSHUA PFEFFER, who both clerked for the High Court and serves as a dayan, describes in a recent article further instances of the Court imposing values far beyond the Israeli consensus and any legislative mandate. In 2002, for instance, Judge Dorit Beinisch ruled that any physical punishment by parents of their children contravened the Basic Law: Human Dignity and Freedom: "[E]ven a light hit on the bottom or on the palm of the hand violates the basic right of children in our society to dignity, and to the integrity of mind and body."
Beinisch went far beyond the facts of the case before her, which constituted a clear case of physical assault over a prolonged period, to enunciate this total ban on all parental physical punishment. Only one country in the world, Cyprus, has banned all physical punishment by parents, and that came about as the result of gradual legislative change over a period of years, and not by judicial fiat.
Whether or not Beinisch's view is defensible on educational grounds is irrelevant. Rather, the question remains: By what authority did she render overnight hundreds of thousands of Israeli parents criminals subject to imprisonment and losing custody of their children, without a stitch of legislative warrant?
In another recent case, the Court gave short shrift to traditional values in a dispute over property division in divorce. Under Israeli law, property owned by one spouse prior to the marriage is treated differently from property attained during marriage, which is assumed to be held in common. Property owned by one of the spouses prior to marriage is divided according to the express or implicit agreement of the parties as to whether the original owner wishes to share the property equally and under what conditions.
The question before the High Court was whether a rabbinical court had erred in taking into account the infidelity of one spouse at the end of a long marriage, as a possible violation of an implicit understanding of the parties that the equal division of the property in question was subject to a condition of marital fidelity.
The High Court concluded, after two hearings, that fidelity could not be treated as a factor on public policy grounds: In order to ensure healthy marriages, which requires that spouses not police the actions of one another, wrote Judge Amit, the author of the Court's majority opinion, the court should not consider any evidence of infidelity (a term she always put in quotation marks). At least one judge, opined that considerations of infidelity would be an impermissible application of halachah to issues of property division, which Israeli law forbids. Of course that conclusion supposes that only observant Jews care about marital fidelity.
In effect, writes Rabbi Pfeffer, the Court normalized infidelity, and enunciated a broad rule that a condition of fidelity cannot be considered, despite any evidence to the contrary, in the lifestyles of the spouses. In doing so, the Court simply invalidated the feelings of many, likely the majority, of Israelis that infidelity affects the marriage in a uniquely destructive way.
By what right, we ask.
We end where we began, with the inevitability that a Court determined to venture into realms where it is without the guidance of statutes or a constitution ratified by the people after due deliberation and extensive public debate will end by determining every societal norm to a degree without parallel in the world. And when they do so, the judges will too frequently dispense Kadi justice incapable of explanation according to neutral legal principles but depending rather on the ideological-political favor that the parties find in the Court's eyes.
No matter how high-minded the judges of the Court may be, or imagine themselves to be, no matter whether their decisions are described as the result of moral intuitions, whims, or prejudices, those decisions are experienced by the majority of the Israeli population as being imposed upon them by judicial fiat and the Court perceived as an enemy. Far healthier for national solidarity for conflicts over values to be worked out by those elected officials who can be tossed out by the voters no more than four years down the road.
That's democracy. And as Winston Churchill said, for all its faults, it works better than any other system, until Hashem returns to us our judges as of old.