On Ayelet Shaked’s speech at the Bar Association

Hello Rabbi,
What do you think of the speech:
The full speech of Justice Minister Ayelet Shaked at the Bar Association conference:

There are words that were written in their time in such a precise and polished manner that even the years that have passed since they were first published do not diminish their relevance, and time fails to cover them with its shifting sands.

Here are some such words:
“When I was presented with the opinion of my friend, President Barak, I gave him my hand and let him lead me on his path.

We climbed mountains with fundamental rights at their summits, we passed through doctrines, we descended to particular legal rules, and on our way we were always accompanied by justice, truth, honesty, and common sense.

Towards the end of the journey, we boarded a ship and arrived at an island in the middle of the ocean. We got off the ship, and on the pier we were greeted by a kind-hearted man.
“Welcome,” the man greeted us cheerfully.
“Greetings to those present,” they replied, adding: “We are from Israel, from the Supreme Court of Israel. And who is it, sir?” we asked.
“My name is Thomas, Thomas More.”
“Very pleasant. And where are we?” we asked.
“You are in a utopia,” the man replied.
“And what is the legal system that prevails in Utopia? Is it similar to the legal system in Israel?”
Mr. More smiled and replied: “I’m sorry, but there are profound differences between the two legal systems, and it will be a long time before Israel reaches the level of utopia. At this time, you are fighting for your lives, for the existence of the state, for the ability of the Jewish people to lead a community and state life like all other peoples. The laws of utopia – in your current situation – are not for you. Not yet. Take care of yourselves, do your best, and live.” So said the man and did not add. “And I woke up, and here is a dream.”
So much for the words of Judge Mishael Cheshin, of blessed memory, in the High Court of Justice case “Family Reunification”; May 14, 2006.
**
Many praised Judge Cheshin for being able to awaken from the legal dream, which deals with the theoretical issue of the right to a family and its derivatives, to the concrete Israeli reality, one that is fighting for its very existence and over which the danger of the naturalization of tens of thousands of citizens of a hostile entity hovered.

If Cheshin had not awakened from that ‘dream’, as he defined it, switched sides, and gone against the dominant view of the then-president, Justice Aharon Barak, it would have found expression in a disastrous ruling, which was thwarted on the stroke of a vote.

But only a few, too few, have sought to examine what that ongoing and general utopian dream is that Hshin managed to awaken from, and it seems to me that he asked all of us, through the paragraphs I read to you, to try and awaken from it as well.
**
When it comes to individual and fundamental rights, there is no one like Israel…
The constitutional means of proof that the Israeli legal system developed in the early 1990s are so sophisticated that not only do they know how to identify fundamental rights when they exist and are enshrined in the Basic Laws, they know how to identify such rights even when they do not exist…

They recognize fundamental rights even when the legislature, the body responsible for enshrining rights, decided for its own reasons, and as a result of a long deliberation process, not to grant them at this stage.

In contrast to these identification capabilities when it comes to individual rights, the Israeli legal system also has dead zones – entire areas where it is unable to identify anything.

In the Israel of 2017, a state whose constitutional system is a two-and-a-half-inch web of individual rights, with no reference in its basic laws to its being the nation-state of the Jewish people – Zionism has become a dead zone of the law. Questions concerning it are completely irrelevant. National challenges are a legal blind spot that, according to the accepted perception today, should not be taken into account, and certainly not be decisive when faced with questions concerning the individual.

The question of demography and preserving the Jewish majority are classic examples. Israeli case law does not at all see them as values ​​that should be considered. Not only in relation to the famous petition against the Family Unification Law that I opened, which is actually a washed-up name for an attempt to create a right of return creeping into the State of Israel by virtue of the case law.

The question of the Jewish majority is not relevant in any case!

It is irrelevant when we are talking about the infiltrators from Africa who settled in south Tel Aviv and established a city within a city, while pushing out the residents of the neighborhoods, and the response of the Israeli legal system is the invalidation (and repeated invalidation) of the law that seeks to deal with the phenomenon.

It may be that if the idea had been truly put on the table, yesterday’s ruling would have looked different.
It is also irrelevant when a long-standing task like the Judaization of the Galilee, which has accompanied us since the beginning of Zionism, is abandoned in a landmark ruling, which many recognized upon its publication as “post-Zionist” (and remember Justice Landau’s words on this matter), all in the name of protecting a system of individual rights.

**
The civil rights system in Israel is an issue that is almost sacred to me, but not when it is disconnected from all context.

Not when it disconnects itself from Israeli uniqueness, from our national missions, from our identity, from our history, from our Zionist challenges.

Zionism should not continue, and I say here – will not continue, to bow its head to a system of individual rights that is universally interpreted and in a way that disconnects it from the words of the Knesset days and the legislative history that we all know.
**
Since the rights revolution, we have stopped seeing ourselves as a community, as a body that, while composed of different individuals, has a national worldview and shared aspirations that unite it.

We have almost lost the ability to say “we.”

Since the constitutional revolution and the rebellious interpretation given within its framework of Israel being a Jewish state, an interpretation that turned our national uniqueness into a hollow symbol and an empty vessel – we have become angry as a system of millions of individuals.

All of these individuals have first names, but they do not have last names.

They grew up here like Adam and Eve. Alone in their own world. Without roots, without community, without people, without history and without identity. Nofar flowers, floating on water without roots.

And this is exactly the dream that Hshin asks us to wake up from.

A dream in which the Israeli legal system, which seeks to adopt a utopian and universal worldview, sanctifies individual rights in such an extreme way, and at the same time ceases to take part in the war for the very existence of the state and the ability of the Jewish people to lead a community and state life.
**

I would like to take the bull by the horns and say in the clearest possible way:

The problem of Zionism as the dead zone of the Israeli legal system – before it is a legal problem – is first and foremost the product of a moral and political crisis.

Therefore, only a moral and political revolution of a magnitude similar to the one we experienced in the 1990s, one that would reaffirm Zionism’s achievements and its central positions since its inception, could reverse the problematic trend.

The ‘Basic Law: Israel, the Nation-State of the Jewish People’ that we will pass in the upcoming session of the Knesset does exactly that.

It is a total change. It is a moral and political revolution. It is a new paradigm in relation to everything we have gone through in the last half-century.

It is not a legal precision here or there. It is a call to wake up from the dream. It is a comprehensive concept that returns the principles of the founding generation to the forefront of the legal stage. It moves Zionism and our most basic and deepest foundations of identity from the dead zone of our legal system to their rightful and appropriate place – under the central spotlight.

It creates a constitutional fabric that includes, alongside individual rights, national constitutional foundations for the State of Israel. It fills the concept of “Jewish state” with precisely the same content that the constitutional revolution emptied of it.
**
Moreover, it affects the way we understand rights –

They will once again be a matter whose justifications, scope, and correct interpretation can be learned from a study of the history of the Knesset; in our own times. We will return to studying them from our unique history and from the needs of our existence and identity.

They will cease to be something imported here in crates unloaded from ships at the port according to specifications determined in advance in an unknown manner, and according to an order that we, the members of the Israeli Knesset, the representatives of the public in Israel, have not signed.

And precisely because of this, their power will increase exponentially from what they have today, after the system of rights underwent, through case law, an inflationary process of artificial expansion, which in turn led to a sharp public devaluation of the very concept of rights.

Fundamental rights will return and become an issue deeply rooted in our unique system.

**
The new constitutional structure will ensure that, alongside the careful preservation of the agreed-upon fundamental rights, we will also be able to preserve our moral deposit – our national heritage.

The hysterical circumstances and the challenges of Zionism that lie ahead will give rights their special color and unique impact.

In the new structure, new rights will be established, and old ones will be recognized, based on the results of the Knesset as a constituent national assembly.
**
Opponents of the Nation-State Law seek to establish that democracy in general, and constitutional democracy in particular, necessarily come with a certain set of values. Usually, these values ​​correspond precisely, of course, to the platform of the opponent’s party.

Those opposed to the law believe that a Basic Law that highlights our national and Zionist values ​​will make us less democratic.

I, on the other hand, see the individual rights that the Knesset recognized as true, and I also see our national and Zionist values ​​as true.

And I have no fear.

I know that one truth cannot contradict another truth.

Strengthening one truth does not blunt the power of another truth.

vice versa.

It is precisely the attempt to undermine our democratic system as long as it does not conform to someone’s values;
It is precisely the willingness to give it up when it is too nationalistic, or too Zionist, in the critic’s opinion, that cuts off the branch on which the most important rights we have achieved to date rest;
For there is no dispute about the existence of rights, except that the justification of rights, in terms of their scope, strength, and the way they are designed, lies precisely in the fact that they are deeply rooted in our unique system.

It is the integration within our fabric of rules and traditions, and not the abstract existence of rights, that gives them their source of power.
They return and justify themselves because the Knesset in Israel and our democracy chose to recognize them.

Our choice of rights, our design of them when done in the Israeli context, and out of awareness of the full range of national and Zionist challenges, are what sanctify them.
**

Cheshin managed to awaken the majority opinion in the Supreme Court from dreaming of universal rights; he managed to make it clear that abstract rights that are disconnected from the Israeli context and the implications derived from such a move are a matter that may be true for life on a lonely island in the ocean, but not in Israel, which is struggling for its very existence in one of the toughest and most challenging neighborhoods in the world.

But a moment later, the system sank back into a deceptive dream sleep.

Once universality has been defined as a goal, even if it is distant and one whose time has not yet come, it is difficult for the legal system to withstand the onslaught and explain to itself why the time has not yet come, and the path to achieving the desired goal has been accelerated.

For me, and unlike Mahsin, the aspiration for a universal political order that ignores the uniqueness of the Israeli case is not at all perceived as utopia.

My ambition is to see Israel as a strong and prosperous nation-state that lives up to its promise of the existence and success of the Jewish people, while at the same time granting in practice all of the individual rights it pledged in the Declaration of Independence, the greatest founding document of our nation – to all of its citizens: Jews, Druze, Muslims, Christians and Circassians. And of course, there is no, and cannot be, political disagreement about this duty of ours.

This is my ambition, and the truth is that I believe it is a completely realistic ambition.

And I have no doubt that it will come true.

And if you want – this is not a utopia.

**

Thank you and happy new year.