Wednesday, September 26, 2007

DovBear Dialogue: SM & Naftuli - Part II

Part 1: Israel and Constitutionalism
Part 2: Israel and Development of a Mature Legal System (below)

Dear Naphtuli,

Thank you for your post, which I read with interest. Given that we have been set up to disagree it is not surprising that we do. I would like to explore the subject on two different levels: the first where I simply disagree with your take. The second where I think we may have a different hashkafa entirely.

Israel largely inherited its legal system from the British, which explains why the thing is in bits and pieces. The original Basic laws seem to me to have been an attempt to add a Jewish/Zionist page to the developed common law by enshrining particular aspects of it in written form. The next 10 variously incorporate most of the European Declaration of Human Rights (ECHR), deal with Jerusalem and the powers of various state organisations.

By and large the Israeli High Court has construed the Basic Laws as if they were part of the ECHR. In other words, they have granted the Basic Laws a supremacy over subsequent legislation which contradicts the Basic Laws. They have based their power to do so, rather fuzzily, on the proposition that the Basic Laws are passed by the Knesset sitting as a Constitutional Committee.

Given that the Basic Laws were supposed to add up to a written constitution, the most obvious point to make in response to your proposal is that it won’t happen. It won’t happen because the religious parties consider any constitution to be an anti-religious act, because it would ‘replace the Torah’. Aryeh Deri famously said that he would refuse to sign the Ten Commandments if they took the form of Israel’s constitution.

That this stance is moronic (what do the religious parties think the constitution is at the moment? I always thought the oral law had equal value, but it seems not. Ironic really) is beside the point. The religious will not have it. I believe that they agree with you that the rigidity a constitution imposed would mean that they had to negotiate in good faith. The entire religious party structure in Israel is based on precisely the opposite. Freed from Government oppression the religious parties have sadly fulfilled two destinies – they talk and behave as if they were, in fact, still oppressed and they regularly act like the anti-semitic caricatures of yesteryear.

In my view, a written constitution’s rigidity is precisely what Israel does not need. Let me explain why. The reality is that huge swathes of most written constitutions become redundant the moment they are signed. Take the US Constitution – a document with more amendments than original clauses. It contains a specific prohibition upon being made to quarter troops for free. A major contribution to 21st century political thought and freedom or not? Not. Rather than negotiate in good faith, written constitutions encourage all interest groups to demand what they want, however small, petty or frankly irrelevant their requests might be. And, worse, the pressure is on to say “yes” to everyone.

Which leads me to the next problem. Constitutions are frequently inherently contradictory. Does the right to free speech include the right to threaten lives? Does separation of church and state mean that religious services cannot be held on government property? The framers of the constitution may mean one thing – freedom to bear arms when a far away power is corralling all weaponry into its own hands – and end up with quite another: everyone can have as many guns as they want regardless of the reason.

And who decides these things? The Courts. Now, I have no problem with that – I am a lawyer after all. But the reality is that the Courts simply decide in accordance with the mores of the time and the inherent prejudices of the Judges. That is why Bush’s appointments to the Supreme Court are so important. It is why the courts of countries with written constitutions take political stances and those of countries without (e.g. the House of Lords in the UK) do not. And I prefer policy to be decided by the politicians. That way, when they screw up I can vote against them instead of waiting for them to die.

Yet, your concern is that the Supreme Court already has too much power! Wow – just you wait. The US Supreme Court declares rights which in the UK the House of Lords would not dare to do – because when a political system is not tethered by a written document which lawyers interpret, politicians actually have to take responsibility for what people are and are not allowed to have and to do.

My own diagnosis is that the Supreme Court in Israel does not have too much power. Rather, it implements the basic laws and the jurisprudence to which it is attached in a way which the government often finds politically disadvantageous. The government’s solution is to ignore the Court’s decisions, whilst simultaneously seeking to find popular support for that stance by whipping up the various groups who are on the wrong end (ideologically or materially) of the decision. The religious have fallen for this hook, line and sinker.

The problem in Israel is not enough respect for the law – not an overly powerful Court. If the government doesn’t like a decision it can always change the law. In Israel that would frequently mean doing something so appalling (often to the Arabs) that the government simply cannot do it. The religious can be guaranteed to complain and scream about discrimination – thus getting the government off the domestic hook. Meanwhile the people who gave the world the law, ignore it. How would a written constitution change that? You either do what a Court says or you don’t.

I am afraid that you demonstrate something of this attitude when you talk about the disengagement. This is special pleading. The occupation of Gaza is illegal under any canon of International Law you care to apply. We do not even have a claim to the area biblically. So the Court, applying the law, supported the disengagement. To contrast that with the position of a Palestinian who the government wishes to transport from his home, which he has every right to be in is morally defective. If the Palestinian does an act inimical to the security of the State he can be removed. Even that is dubious – most countries have to live with their home-grown terrorists. But to suggest that entire communities should be removed in defiance of their human rights simply because it is convenient is to draw a shocking distinction between ‘us’ and ‘them’ based entirely on nationality/religion. I thought Jews did not do that. Those Jews currently in Gaza and on the West Bank have no entitlement to be there. They are hoping that the government can tough it out for them and restate reality as part of an overall peace settlement. Good luck to them. But they have lost the right to whinge if their gamble does not come off. If Israel wants to be a light unto the nations then it cannot claim a different law applies to it.

Any constitution would founder in dealing with this problem. The problem is not the status of the law. The problem is the definition of ‘Israel’, ‘Jew’ and so forth. International law would never accept the definition of Israel that you seem to want and a unilateral definition will simply make the problem worse, not better. The religious will never accept a definition of Jew which is not entirely their own and adopting it would finally cut Israel off from the majority of Jews outside. The constitution, in short, is not a panacea but rather the opposite. The urgent task lies in building a State with respect for all and achieving peace. The question of a written constitution is a distraction.

And I repeat, written constitutions do not work. The USA suffers from its own. It has fallen into the hands of the gun nuts, whilst secular Jewish schools are attacked by religious Jewish schools for breaching the church/state divide – a code for being aggrieved that children can be educated as Jews (although not as religious Jews) for free. What hypocrisy. The constitution diverts attention away from what is actually wrong, by focussing on what a bunch of middle-class men thought about 200 years ago and then treating their thoughts as if they were dictated by God on Sinai. A murrain on it: at least preserve Israel from those mistakes and let it find its way forward unencumbered by our temporal concerns and aspirations. I am with the religious here – we already have one Bible. Let’s not write another.

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