The Torah commanded: “These are the rules that you shall set before them” (Exodus 21:1). The meaning of the mitzvah is that the Jewish nation judge according to the laws of the Torah, and not according to the laws of the nations. When the State of Israel was established, the rabbis requested that the rule of law to be established would be that of Torah law.
However, the problem was that during the generations that passed over the Jewish people in exile, the Sages of Israel did not deal with the law required to lead a society and economy within the framework of a modern state, and therefore, it was difficult to determine that the law would be according to the laws of the Torah. Our great rabbis regretted this very much. However, in the absence of sufficient precedents, they could not offer a complete alternative to the legal system; nevertheless, they requested that a maximum effort be made to operate the legal system according to the legacy of the Torah.
The Chief Rabbi of Israel, Rabbi Herzog, even wrote a proposal and a solution to some fundamental problems. When he found out that the legal system was not interested in acting under the inspiration of Torah law, he wrote: ” Now, when the Jewish nation dwells in its homeland and regretfully judges according to foreign laws, it is a thousand times worse than an individual, or a Jewish community, who brings their cases before non-Jewish courts…who knows what the results will be from such a shameful and humiliating situation” (‘Ha-Torah ve’Ha-Medina’ vol.7).
The Bitter Results
It can be said that the state leaders and jurists did not turn their backs on the Torah law out of malice, rather, since they believed they would be unable to sustain a modern society and economy according to the laws of the Torah – they turned to a law that was already prevalent in the country, which had its beginnings in Turkish law, but was mainly based on British law. From there on, they continued to build the legal system based on the vast experience gained in the legal systems of the democratic countries through the work of hundreds of thousands of jurists, who, by means of investigation, trial, error and correction, created a sophisticated system suitable for modern society.
In practice, a legal system was established that draws its values from Western society and is impervious to the values of the Torah, the People, and the Land of Israel. Consequently, the result is that time and time again, the legal system deprives the Jewish People of their values, their rights, their Land, and their national destiny. Seemingly, the responsibility for this lies on both sides: the rabbis who did not work hard to create a legal system suitable for the State of Israel, and the jurists who did not make an effort to draw inspiration from Israel’s heritage for the legal system.
As the State of Israel is unique and different in its challenges and goals, the sin of ignoring Israel’s heritage proved to be very serious. For indeed, the special challenges of the State of Israel are numerous: it is the only country in the world that has a constant existential threat to it from hundreds of millions of enemies, and within it, there is a significant minority that opposes its being a Jewish state. Its goals are also special: the vision of the ‘Ingathering of the Exiles’ and the absorption of millions of Jews, and the creation of a Jewish culture suitable to all.
It therefore became clear that despite the good intentions, the judicial system is the institution that most harms the Jewish identity of the State of Israel, its security, and its ability to settle the Land. I will present examples of this.
Damage to the Jewish Identity of the State
The High Court of Justice (Bagatz) damaged the status of the Hebrew language as the official state language, while almost equating the Arabic language with the Hebrew language. The court prevented the disqualification of anti-Zionist parties and candidates from running for the Knesset, in violation of the ‘Basic Law: The Knesset’, which prohibits the running of a party that denies the state’s Jewish identity. The court overturned laws designed to expel infiltrators from the country.
Since the State of Israel is a rich country, many people from around the world want to join it and receive citizenship here for all the benefits involved. Over the years it became clear that many Arabs who are not citizens of Israel marry Arabs who are citizens of Israel, and then apply for Israeli citizenship. In the following step, they also request to naturalize their parents or children from a previous marriage, based on a family reunification claim.
The Israeli government sought to prevent this by establishing a policy according to which marriage to an Israeli citizen does not entitle the spouse to Israeli citizenship. The goal: preservation of the Jewish majority, and especially versus the Arab minority. For indeed, the State of Israel is in a long war with the Arab world, and even the Arab citizens of Israel themselves do not enlist in the army and do not participate in the war effort, and some of them even sympathize with Israel’s enemies. In such a situation, the addition of additional Arab citizens harms the identity and strength of the State of Israel, and is liable to even endanger its security.
The legal establishment, however, ignored these considerations and sabotaged the policies of the government and the Knesset. In the first stage, the Attorney General prevented the State from opposing family reunification, and thus, about 150 thousand Arabs from Judea and Samaria and other Arab countries received Israeli citizenship. In the second stage, the Attorney General prevented the State from opposing the reunification of Arab families on the demographic grounds of preserving the Jewish majority, and allowed it to oppose it only for security reasons, namely, only because there is a real danger that the acceptance of citizenship would directly aid terrorist activity. In the third stage, when a petition was submitted to the High Court against the State’s position, by one vote alone, the High Court “graciously” approved the State’s decision to prevent family reunification on security grounds.
Let’s imagine that one judge would have changed his mind, and the State of Israel would have had to accept hundreds of thousands of Arab citizens.
Even today, this position of the High Court poses a constant threat to the government’s policy, and causes officials to deviate from the desired policy in accordance with the governments of Israel, and approve large numbers of applications for family reunification.
Damage to the Value of Settlement of the Land
Already for a hundred and fifty years, there has been a national struggle between the Jews and the Arabs over the Land of Israel. In order to redeem the land and settle it, the ‘Keren Kayemet Le-Yisrael’ (the Jewish National Fund) was established, and later the State of Israel. However, the High Court, in a gradual process, damaged the State of Israel’s ability to fulfill its mission:
It prohibited the government from allocating State lands for settlement intended only for Jews. Even with regard to the lands of the ‘Keren Kayemit Le-Yisrael’, which were bought solely with Jewish funds, as a result of High Court deliberations, the Attorney General ordered that Jewish settlement no longer be shown preference. It forbade giving incentives to Jewish settlements in the Galilee and the Negev (‘Yehud Ha-Galil ve-Ha-Negev’), thus canceling the ideal that accompanied the Zionist movement from its very beginning.
As a result of petitions of left-wing organizations the court hastened to intervene, and demanded the evacuation of Jewish neighborhoods and outposts in Judea and Samaria, breaking the rules of hearings that require legal procedures to clarify the ownership of the land before the magistrate and district courts, and adopting the position of our enemies, that Judea and Samaria are occupied territory.
The High Court forbade the use of dusting of agricultural crops with herbicides as a tool in the State’s fight against illegal Bedouin sowing in the Negev, even though it has been proven to be an effective method of stopping their takeover of the State’s lands. Consistently, the legal system discriminated against right-wing governments when it came to implementing Zionist policies.
An example of this: the High Court prohibited Prime Minister Netanyahu at the end of his first term from closing the ‘Orient House’ on the grounds that his government was a transitional government, and in contrast, rejected an identical petition against the ‘Taba Talks’ at the end of Barak’s term, and also recently permitted the Lapid government to sign the maritime border agreement with Lebanon.
Harm to Matters of Halacha and the Rabbanut
In a series of decisions, the court harmed Shabbat values, while allowing more and more public Shabbat desecrations (movie theaters, shopping centers outside the cities, and convenience stores in Tel Aviv, etc.). In a series of decisions, the High Court intervened in the judgment of city rabbis regarding the provision of kashrut. Obliged the religious courts to rule according to the secular law in monetary matters. Prohibited the state courts from serving as arbitrators according to the Arbitration Law.
The Knesset enacted the ‘Foundations of Law’ Act, according to which in every legal question that Israeli law has not decided, the court must turn to the values of Israel’s heritage. However, in practice, the High Court has emptied this law of its content. The institution of Legal Counsel forced the participation of female singers and actresses in official and semi-official ceremonies, without considering the position of Halacha, and the Religious and Haredi public.
The office of the Attorney General prohibited budgeting and assistance for women-only shows. Apart from the actual harm in doing so, it added sin to crime, and presented those who request it as immoral women who create discrimination. The High Court’s ruling to integrate women into combat units did not take into account the Halakha’s position at all.
Damage to Israel’s Security
The court prohibited the use of pressure techniques of those interrogated by the Shin Bet, even in “ticking bomb” situations. Canceled the “neighbor procedure”, which saved the lives of many soldiers. Placed severe limitations on the IDF’s ability to thwart terrorists who are about to carry out an attack. Cancelled a law that allowed hard terrorists to be detained for two weeks without seeing a judge, despite the security need to extract information from them.
Contrary to the position of the security establishment, which warned of the danger involved, in many places it ordered the dismantling and moving of sections of the separation fence or the fences of settlements, and also ordered the opening of roads and the removal of roadblocks. In a series of decisions, the court and the legal establishment forced the IDF to recruit women into combat units, contrary to the position of the professional committees.
Incidentally, since the judicial system’s biased position is well known, the very fact that the High Court of Justice begins to discuss certain petitions, causes the ruling system to withdraw from its plan. For example: the High Court of Justice held discussions on the petitions of the left against reducing the supply of fuel, electricity and various supplies to Gaza, and as a result, the Attorney General, Mr. Mazuz, ordered the government to fold from its plan.
The Systemic Change is Necessary
This brief review is enough to establish that the legal system is the institution that alienates and most harms the values of Judaism and Zionism in Israel. In order to allow the State of Israel to achieve its goals, it is necessary to make a profound change in it, in order to reflect its values as the State of the Jewish people.
This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.u