To the Editor:
It is important to remind Hillel Neuer [“Israel’s Imperial Judiciary,” October 1999] that in Israel “the rule of law” refers to the laws passed by the secular parliament (Knesset) and not to Jewish religious law (halakhah). The Sabbath is Israel’s official day of rest because the Knesset passed a law to that effect. Since Israel is a Jewish state, many of its laws are based on Jewish tradition, but all of them are passed by the secular legislature. Unfortunately, the ultra-Orthodox (haredi) community, which has always been against the political aspirations of the Zionist movement and objected strongly to the establishment of the state of Israel, continues to this day to try to impose halakhah on the secular majority of Israelis.
In a country like Israel, where the very existence of the state depends on the strength of its army, there is no justification for allowing the haredi community to avoid military service. Thousands of non-haredi religious Israelis, including yeshiva students, serve in the army with distinction and without feeling any conflict with their religion. The Israeli Supreme Court was therefore fully justified in ruling on this point, and as a result of its ruling, the government will now have to explain why the haredim are exempt from military service. The so-called compromise reached by David Ben-Gurion and the haredi community in 1948-49 was never debated in the Knesset and there is no law codifying it. The majority of Israelis strongly object to this obvious injustice and support the drafting of yeshiva students.
The closing of major streets to automobile traffic on the Sabbath has been another point of continuous friction between the haredim and secular Israelis. The vast majority of Israelis drive on the Sabbath, and the Court was fully justified in forbidding the closure of those streets.
No one should be forced to transgress his religion. By the same token, however, no one should impose his interpretation of religious law on others. There is a growing movement in Israel for a written constitution. I hope it succeeds. In the meantime, the Supreme Court should remain vigilant in protecting the rule of law—as passed by the Knesset.
To the Editor:
Hillel Neuer deserves special appreciation for his sophisticated analysis of the jurisprudential history that has produced the current tense relations between the Israeli Supreme Court and the nation’s religious community. News coverage in the United States has tended to present the dispute as a simple matter of “black hats versus black robes,” with the role of villain conveniently assigned to the religious opponents of the Court. As Mr. Neuer convincingly demonstrates, the current dissatisfaction of the Orthodox is a direct reaction to the Supreme Court’s rampant interference in the prerogatives of the Knesset and the executive branch.
But Mr. Neuer presents only the symptoms of Israel’s juridical malaise and ignores its etiology. The license taken by Israeli judges to remake public policy in accordance with the principles and values of the “enlightened segment of society” (in the words of Chief Justice Aharon Barak) is a direct symptom of the complete lack in Israel of democratic control over judicial appointments.
In Israel, judges are appointed and advanced by a selection committee composed of two members of the Knesset, two cabinet ministers, two representatives of the Israeli bar—and three justices of the Supreme Court. In other words, the controlling majority on the committee is held by five members—the justices and the representatives of the Israeli bar—who are neither elected by nor accountable to the public. Still more troubling is the fact that since the early 1950’s no candidate for the Israeli bench has been appointed without the unanimous agreement of the three justices on the committee.
For half a century, then, Israeli judges have been placed on the bench by their senior brethren on the Supreme Court. As Professor Ruth Gavison of the Hebrew University, an outspoken liberal and president of the Association for Civil Rights in Israel, stated in a recent interview in Ha’aretz: “Nowhere else in the world is there a situation in which judges have control over the process of appointing judges. . . . It gives those who head the system too much power, and it turns the system into a kind of closed sect, which is too uniform and which effectively perpetuates itself.”
The absence in Israel of any mechanism of democratic control over the selection of judges has destroyed any expectation of judicial accountability. The Israeli public has by and large concluded that it lacks not only the ability but even the right to ensure that the judiciary shares its fundamental beliefs and aspirations. For their part, many judges have come to disdain the basic democratic principle of popular sovereignty, and view themselves as legitimately entitled to instruct the Israeli public in matters of morality and values.
Hillel Neuer writes:
Jacob Amir’s reasoning in support of the activism of the Supreme Court of Israel is a good illustration of what plagues the outlook of Israeli liberals toward their judiciary. In demanding agreeable results from the high court, those on the Israeli Left typically demonstrate little interest in legal precedent and no patience for democratic politics.
Mr. Amir graciously “reminds” me that the foundation of Israel’s legal system is secular and not halakhic. Yet this truism, nowhere doubted in the article that I wrote, is irrelevant to the question of whether the Supreme Court should today arrogate to itself the power to alter entrenched political compromises approved by courts past. Exempting certain yeshiva students from military service, or blocking traffic on a few streets over the Sabbath, may not be to the liking of Mr. Amir, or to that of a number of other Israelis. Yet by arguing that this alone suffices to render judicial activism on these issues “fully justified,” Mr. Amir ignores the very “rule of law” that he claims to cherish—and hence conveniently avoids confronting judicial rulings that once allowed these issues to be resolved in the political arena.
Regrettably, I can only conclude that Mr. Amir’s wish for a formal, written constitution is motivated, as is the case with virtually every other Israeli who has similarly pronounced himself on the issue, more by an animus toward things religious—on the false assumption that a modern constitution necessarily mandates complete separation of church and state—than by any concern for the broader values of constitutionalism.
I am grateful for Mordechai Haller’s kind words, and I agree that improvements are in order in the area of judicial appointments. But he exaggerates the problems with the process—with four political committee members, there is certainly not a “complete lack” of democratic control. Mr. Haller is also misleading himself if he thinks that adopting a more political appointment process—say, a Canadian-style system in which the Prime Minister makes the decision—would necessarily prevent a situation like today’s. Had such a system been in place in 1978, when Israel’s current Chief Justice, Aharon Barak, was appointed, the result would probably have been the same: Prime Minister Menachem Begin, however religiously traditional and politically conservative, happened to be among then-Attorney General Barak’s greatest admirers.