Further Reflections on the Quality of Our Public Discourse: The Regulation Law, the Rule of Law, and the Honor of the High Court of Justice (Column 41)

With God’s help

These days public discourse is occupied with the Regulation Law, whose purpose is to regulate the status of houses in Judea and Samaria that were built inadvertently, with government approval, on privately owned Palestinian land. It was impossible to secure agreement on the law without excluding the case of Amona, which had already been adjudicated by the Supreme Court, which ruled that it must be evacuated. The claim is that including Amona in the law would amount to retroactive legislation, which legal theory regards as improper. As one might have expected, here too the discussion proceeds by way of an exchange of slogans between deaf camps, as is usual in our parts. I will try here to stand on a few typical aspects that appear in it.

Arguments for and against

Opponents of the law raise several arguments, and here are four of them: this is a law of theft ("against Jewish morality," naturally!). With respect to the case of Amona (and perhaps also the others), this is retroactive legislation. It contravenes international law (the expropriation of private land for purposes other than direct security needs). It will harm the international standing of the State of Israel (and also the settlement enterprise).

For the sake of balance, I will also present four arguments in favor. These people say that in other cases (mainly when Arab construction is involved), the High Court of Justice and the legal system allow the landowner to be compensated (what in Jewish law is known as takkanat ha-shavin and takkanat marish). The right to the land is ours, not the Palestinians’. The world will always be against us, one way or another. International law is flexible, and its interpretation and use are always biased against us (the Edmond Levy Report concluded that the settlements do not contradict international law).

Illusory correlations

Before I enter into a discussion of some of these arguments and their meaning, I would be glad to hear whether any of my dear readers has ever heard anyone express a nuanced position on this issue (or on any other issue). That is, something like:

I accept arguments 1 and 4 of the opponents, but not 2 and 3. By contrast, I support arguments 1, 2, and 4 of the supporters, but not their argument 3. Bottom line: I am torn. Alternatively, bottom line: I decide, though hesitantly, in favor of one side or the other.

Or even a declaration such as:

After weighing the different considerations, I reached the firm conclusion that one must strongly oppose, or strongly support, the law/the exclusion of Amona.

All of these positions (including those that firmly endorse some bottom line) are nuanced positions, because they are willing to accept that the problem has different sides pulling in different directions (not all roads lead to Rome). As far as I can tell, we do not have such positions in our parts. The truth is clear to all of us, and it has no shades. It is either black or white. The others (those who are not with us but against us) are nothing but fools/wicked people/thieves/liars/post-Zionists/post-Jews/post-rationalists/representatives of the European Union and the New Israel Fund/fascists dispatched by Sheldon Adelson and Donald Trump (= the very sources of evil in the world), etc., etc.

Illusory correlations

In column 1 I discussed the phenomenon of illusory correlations (it is also mentioned in column 5). These are correlations that arise among people who give answers in the same direction to independent questions. Thus, for example, those who support an agreement with the Palestinians raise security, diplomatic, moral, religious, and other arguments. Those who oppose it, of course, mobilize all these considerations in the opposite direction. You will hardly find a person who thinks that morally one should make an agreement, but diplomatically or religiously one should not, or vice versa. Again the picture is black versus white.

The penny first dropped for me during Rabin’s last government, when the question of returning the Golan to the Syrians came up again. A car drove by me with a sticker reading, "Rabin has no mandate to return the Golan." I wondered whether the owner of the car supported an agreement with the Syrians or opposed it, and I immediately concluded that I did not have enough information to determine that. Why? Because there were two independent questions on the table: 1. The substantive question: is it right (diplomatically, morally, politically, security-wise, religiously) to make an agreement with the Syrians? 2. A question of political morality: may a prime minister who promised something before elections change his mind afterward ("things look different from here than they do from there"), or must he return to the people and hold new elections in order to receive public legitimacy for his new policy?

It is important to understand that these are two independent questions, and it seems to me that each has substantial arguments both for and against (yes or no). Therefore we should have expected four parties to form in the public, holding four positions: (yes, yes), (yes, no), (no, yes), and (no, no). It follows that even if the owner of the car thinks Rabin has no mandate to return the Golan, that may be because he did not receive that authorization from the public (the moral question). But on the substance of the matter it is entirely possible that this same person is an enthusiastic supporter of returning the Golan as part of an agreement with the Syrians. Therefore the sticker does not really enable us to determine the car owner’s political position.

What do you say about my naivete? Surely it is obvious that it does enable us to know, and quite clearly: he is a right-winger (who opposes an agreement with the Syrians). Why does the expression of a moral position indicate his political position? To understand this, let us return to the public. How many groups do you think there actually were in the public debate at the time? It does not take much to see that there were only two, of course: (yes, yes) and (no, no). People decided what their position was and then stitched together all the considerations and arguments in its favor across the entire front. The opponents objected morally and politically, and the supporters supported morally and politically. There were no significant groups with a nuanced outlook, that is, groups that supported morally and opposed politically, or the reverse. Therefore, if a person expressed a moral position against returning the Golan, one could assume with a high degree of certainty that he also opposed returning the Golan politically, and vice versa.

Between answers to two independent questions, where each has two substantial sides for and against, there should be no dependence, and therefore we should have expected four different positions in the public. If nevertheless such a correlation exists (that is, only two groups form), then this is an illusory correlation that testifies to defective public discourse.

Giga-biases in the conversion debate

If in the matter of Rabin and the Golan the bias was small, since we are dealing with two questions and four possibilities, of which the debate actually produced only two groups, then in the field of conversion the situation is sevenfold more skewed. In a short response to the polemic over conversion I pointed to a similar phenomenon. There I presented about fifteen independent questions that each of us must examine when forming a position on conversion. The number of parties/positions to be expected on such an issue is… over thirty thousand (!!! 2¹⁵). How many were there in practice? Of course: exactly 2. Only the following parties:

The Religious Zionists: (yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes)

And the Haredim: (no, no, no, no, no, no, no, no, no, no, no, no, no, no, no).

Exhausted? Excellent. That only illustrates the scale of the absurdity. Here too one can see merely a symbolic bias. We lost only some thirty thousand groups, but let us take comfort in the fact that two remained (roughly half-and-half). This is already giga-bias. Think about the quality of public discourse when only two out of thirty thousand possible positions are ever discussed. Can one seriously relate to the results of such a miserable debate?

Back to the Regulation Law: two more kinds of problems

Now the application to the question of the Regulation Law is already simple. Suppose we are dealing with four independent questions, each with two possible answers (and, on my assumption, none of them is completely stupid). How many groups should we expect? Exactly 16 (2⁴). How many are there in practice? Again, the universal constant: 2. Well, compared to conversion this is already quite a tolerable bias (about 87%. Truly minor).

But the problem in the discussion is not only the illusory correlations and the biases of the debate. There are two more kinds of problems: problems in the arguments themselves, and problems involving the conflation between them. Let us now look at a few examples.

Problems of conflation: morality and international law

Supporters of the Regulation Law argue that in similar cases (especially involving Arabs and Bedouin), the legal system is far more lenient. Even when there are concrete owners who sue for their property and have already won, the authorities and the judicial system do not enforce the ruling. Kalman Libeskind, in one of his articles on the subject, even pointed to contradictions in the approach of specific Supreme Court justices, who were very decisive in the matter of Amona but in other similar cases were quite inclined to leniency.

Against this comes the argument from international law; that is, the situation inside the Green Line is not like the situation in the territories of Judea and Samaria. Inside the Green Line this is an internal Israeli legal question, but in Judea and Samaria it is action contrary to international law, which forbids the expropriation of land for purposes other than direct security needs. According to international law, the Israeli government and judiciary have no authority to approve an arrangement of expropriation and compensation there, unlike within the Green Line. If the government were acting consistently and applying Israeli law, then perhaps there would be room to argue against the High Court that it should act according to Israeli law (and even that would require discussion). But the government does not do that, and in fact it itself accepts the interpretation according to which international law forbids settlements. So what complaint can it have against the High Court?!

Now notice the failure in the discussion. Those who support the law consistently ignore this important distinction and keep returning, again and again, to precedents from within the Green Line (sometimes noting that international law is open to interpretation, but ignoring the fact that this is the heart of the problem, not the precedents). But this ignoring has a background in the arguments of the other side (the opponents of the law). They keep repeating the argument that this is a "law of theft" that one cannot morally support ("Jewish morality," to which they are so faithful in all their ways, as is well known, rejects theft). But morally and in terms of individual rights, there is no difference between expropriation and compensation inside the Green Line and expropriation and compensation in Judea and Samaria. From the moral perspective, then, they should also have protested similar cases inside the Green Line. After all, in both cases land is taken from one person, another person is settled on it, and the landowner is compensated. If it is moral, then it is moral in both contexts; and if not, then it should be rejected in both contexts as well. How are we to understand the hysterical shrieks about a law of theft and Jewish morality, when what people are hanging everything on is a formal distinction grounded in international law? Either this is a moral injustice or it is a question of legality.

If the opponents are focusing on the moral argument, then the supporters of the law are right to keep returning to those precedents and to ignore the distinction that concerns international law. Needless to say, this conflation between levels of discussion is another expression of an illusory correlation between the levels. After all, one could have presented the position that this is a morally impeccable act, yet one contrary to international law; or alternatively, that it is immoral but not prohibited by international law. But nuanced positions do not appear in our parts.

Problems in the reasoning itself: retroactive legislation

As noted, the Regulation Law excluded Amona because that would be retroactive legislation, and the principle of legality forbids retroactive legislation (although, unlike other legal systems, ours has no explicit prohibition on such legislation).[1] Some claim that the entire Regulation Law is retroactive legislation, since it was enacted after the lands had already been expropriated. What is unique about Amona is that it runs contrary to a final judgment of the Supreme Court (these arguments concern the Court’s dignity and the rule of law).

The definition of retroactive legislation is not simple, and as noted, the prohibition on it is not absolute either. In certain cases we do this. For example, regarding Yigal Amir, no one hesitated to create retroactive legislation (a law forbidding his release or pardon), because it serves a "proper purpose." Not to mention the Nazis and Nazi Collaborators (Punishment) Law, which is retroactive legislation on an Olympic scale, since it concerns a period before the establishment of the state and its legal system (and not merely before the legislation). So the terrible disaster of retroactive legislation is apparently not altogether intolerable. It depends on whether the purpose is worthy or not.

So once again we have returned to the argument over whether the goal is worthy. Then why is everyone screaming here about retroactive legislation as if there were some inherent defect in such a law?! In truth, this is just another facet of the substantive dispute (whether the goal is worthy or not), except that the opponents apparently prefer to present it as a problem that should trouble the supporters too (after all, the rule of law is a value for all of us). There is a problem here in the reasoning itself, one that conceals behind it (how could it be otherwise?) a conflation between levels of discussion and, of course, illusory correlations as well.

The mere fact that there is a legal problem usually does not stand on its own. After all, we have quite a few laws that are not really implemented, whether for lack of public interest or simply because we do not feel like it (from the pork and leavened-food laws, through the Hours of Work and Rest Law, and more), and with respect to them the sanctity of the rule of law is not exactly on the lips of Meretz MKs and the Attorney General. Almost every other law that reaches the courts bends before practical constraints (cf. protection of whistleblowers, building violations, zoning plans, and much else).[2] The law knows how to be flexible when necessary, but here one must not mention it. The honor of the High Court is at stake. For some reason, it is precisely here that the opponents of the law (who usually belong to those who do not scrupulously obey and/or support the enforcement of the pork law and the Hours of Work and Rest Law) go to total war against retroactive legislation.

Problems in the reasoning itself: the injury to the High Court’s dignity

Enough, then, about retroactive legislation. Regarding the case of Amona, we have seen that it is the dignity of the High Court that is at issue. And since we have come to this, let me say a word on the matter, and may it be favorably received by the sages and their students in the study hall. We are told that legislation that uproots a final decision of the High Court is a mortal blow to the dignity and status of the High Court, may it live and flourish. And I, boor that I am, fail to understand: why is there any injury here? After all, the High Court operates according to the laws of the Knesset. That is how its status and function are defined. The Knesset is now legislating a law that changes the situation retroactively. Perhaps such legislation is a terrible act from a legal standpoint, but why is there any injury to the High Court here? The law is now different, and therefore the High Court’s ruling changes accordingly, since its decisions are subordinate to the law. By this argument, one could say that every piece of legislation of any kind constitutes an injury to the dignity of the High Court, since every law introduces an additional constraint that requires the justices to rule accordingly and limits their freedom of action.

The principle of separation of powers, of course, does not forbid legislation. It only provides that the legislative branch may not intervene in court decisions except by way of legislation. But that is exactly what is done when a retroactive law is enacted: intervention by means of legislation. One may oppose retroactive legislation for various reasons, but to the best of my judgment there is no injury to the High Court here.

True, I can see counterarguments that point to the difference between retroactive legislation and ordinary legislation. I will not enter into them here, and will suffice with pointing out that, in my view, here too the situation is complex. There are considerations in both directions, but within the collection of shrieks that in our circles is granted the pretentious title "public discourse," one hears nothing of them.

The opponents of the law are very concerned about the dignity of the High Court, and on the other hand, for some reason, those who support the law are not troubled at all by injury to the High Court. Anyone who sees here a conflation of levels of discussion (that is, concern or indifference to the dignity of the High Court for reasons connected to other levels of the discussion) does so on his own responsibility, of course. Has anyone heard the position according to which there really is injury to the High Court, but it is worth doing because of the constraints and difficulties? And similarly regarding the opposite position: I strongly support regularization, but injury to the High Court is out of the question (it seems to me that this is roughly the position of Kahlon’s Kulanu party, or parts of it). Again, this is a nuanced position, and therefore it will hardly appear in our parts.

Is the problem with retroactive legislation absolute?

Let us assume that this really is retroactive legislation, and that such legislation is indeed problematic. Moreover, for the sake of argument let us assume that there is also injury to the High Court here. So what? Even if there is a problem with such legislation, it must be examined in light of the other problems that will arise if we do not legislate this law. Retroactive legislation is discussed in legal literature from several angles, and there are certainly situations in which many legal thinkers regard it as legitimate. But you will not hear about that in our public discourse. Such a discussion might provoke the thought that perhaps no absolute value is involved here. Perhaps the sacred value at stake in retroactive legislation may be displaced by other values in certain situations.

As noted, within the Green Line, in quite a few cases, a person is not uprooted from his home, especially if this was done inadvertently and with the approval of the competent authorities. Instead, the landowner is compensated for the expropriation of his property. So respect for property rights sometimes yields to values of proportionality and harm to other people. Why not here? Why is this necessarily a "law of theft" that cannot be accepted under any circumstances? And within the Green Line, is that not theft too? True, the competent authority with respect to the territories is the institutions of international law, but I do not assume that anyone expects those institutions of international law to do this for us. And perhaps indeed it should not be done. There are arguments both ways, but you will not hear about them in our debate.

The argument from symmetry

Uprooting an act that was decided upon by a sovereign government is an injury to the dignity of the government and the Knesset. Why should their share be less? Is there no problem in harming their dignity? When the High Court determines that some action of the government is void, or that some law of the Knesset is void (without the High Court ever having been authorized to determine that, as is well known from the history of the constitutional revolution), is that not an injury to their dignity? Is it preferable to preserve the dignity of the High Court at the expense of the dignity of the government and the Knesset? These questions can, of course, be directed both ways. Those who worry about the dignity of the government that made the decision are not worried about the dignity of the High Court.

And what about the dignity and property of the residents who live on those lands? The injury to them is devastating. They are removed from their homes, the community in which they live is dismantled, and all this for the sake of owners who, if I understand correctly, are not even known or identified, and who in any event cannot and will not use their land (which lies inside a Jewish settlement, and as is well known, the racist Jews will not let them live there, unlike their noble cousins in every Arab village and locality in the country, who gladly and graciously welcome every Jewish resident. Cf. Peki’in, the "friendly" Druze village). So for the sake of the value of theoretical ownership and ultimate abstract justice, and for the sake of an unwillingness to compromise (apparently driven by political motives), the residents are forced to abandon their homes and property and a community is dismantled. Is that value not worthy of being weighed against the dignity of the High Court and the problem of retroactive legislation? Are these particular values and considerations really absolute, such that they may not be infringed in any case? Why does no one do this complex calculation and reach a conclusion (one way or the other) after taking the full range of considerations into account? I merely remind you that in the political debate the political right is told not to cling to abstract rights over the land. One must be pragmatic and compromise. Each side with its own narrative. But here theoretical and abstract ownership prevails over the desire to compromise. Someone who is unwilling to compromise (and to accept compensation beyond the value of his property) only in order to harm his rival is presented as pitiable by the very same people who explain to us that the harm done to us is of no importance, because practice matters more than theory. Needless to say, this contradiction is reversed when one looks to the right. The supporters of the law did not raise their voices for the Bedouin who sit on Jewish lands, or in the political dispute over compromise with the Palestinians. Both sides suffer from the same contradictions, only in opposite directions.

The difference between Amona and the other "regularized" houses

Let us look for a moment at the other houses regularized by the Regulation Law. Assuming that they sit on private land, the problematic nature of their retroactive validation is entirely similar to that of validating the houses of Amona. So what is the difference? That with respect to Amona there is already a final judgment. That is, the rights of the Palestinian owners in their property, and the hardships that will be caused to the Jewish settlers, are not really what matters. What determines the matter is the problematic character of retroactive legislation and the injury to the High Court. Abstract values occupy a place of honor in the debate,[3] while at the same time it appears that concrete human beings whose dignity and property are being trampled are not really important to one side of the argument (and are very important to the other). If we have no problem with injury to the property of Palestinians who own the lands of the regularized houses (when they receive compensation), we should have no problem with the houses of Amona. Let the High Court kindly forgive the slight to its dignity; with all due respect, let us cancel this judgment and let people live quietly, and let the owners receive appropriate compensation. And conversely, if there is a problem, then it exists in all the cases.

In sum, with all due respect to the problematic nature of retroactive legislation and injury to a final judgment, pointing to that problem as an absolute argument is demagoguery. This discourse, from both sides, is nothing but a tool in the hands of ideological and political worldviews. It is entirely legitimate to espouse any ideological and political worldview, but I would expect honesty in the argument. It is not enough to point to a problem on one side; one must weigh it against the problems involved in deciding for the other side.

Summary: on a position on the merits and failures in the discussion

For some reason, defending the dignity of the High Court is the province of the left. The left accuses the right of abandoning the legacy of Jabotinsky and Begin (quoted selectively according to convenience, of course: "There are judges in Jerusalem"). It is interesting that the right, which also believes in respecting legal and state institutions, somehow gives that up here. Either there is a good reason for this (which I have not heard so far), or indeed there is inconsistency here on both sides.

Speaking of complexity, it is interesting to note that we do find isolated right-wing figures who defend the High Court against their political outlook (Benny Begin, Kahlon, former Michael Eitan), but I have not heard of left-wing figures who defend the rights of the settlers and support a compromise with them contrary to their political position. As stated, there are substantial considerations in both directions, so how is it that among right-wing people (almost all of them) and among left-wing people (all of them), all the considerations lead in the same direction? Is this mere coincidence?

In closing, I will say that I assume quite a few readers will infer from what I have written what my position is on Amona and on the Regulation Law in general. But they would be mistaken. I have no unequivocal position, and I am genuinely torn over how proper it is. My words here were written only in order to point to failures in the discussion: both with respect to each argument on its own, and with respect to the connection between them, and with respect to the conflation of different arguments, mixing unlike kinds. It seems to me that the lesson about the quality of the debate is more important than its conclusion. With such a quality of argument and public discussion, it is no wonder that we make very poor decisions.

[1] You can find much material on this in an online search, for example here (the author argues that this is not merely a derivative of the principle of legality). See also the final part of our book, Logic of Time in the Talmud, which is the fourth in the Talmudic Logic series.

[2] And we have not yet spoken about the constant repeal of laws. The current Knesset cancelled with the stroke of a pen all the laws enacted by its predecessor (such as the conscription of yeshiva students, and more). Is this not a cheapening of our legislative system?

[3] Some of the arguments raised against retroactive legislation are philosophical-metaphysical. The law cannot be valid with respect to a time preceding its enactment. At that time it was not yet the law. This is a version of arguments from causality, except that they do not deal with physics but with metaphysics. Just as a physical cause cannot produce an effect at a time prior to itself, so legislation, which is a legal cause, cannot change a legal state at a time before it. With all due respect to this metaphysical and meta-legal consideration, does it stand against the dignity and property of human beings? Lovers of metaphysics can swallow hard for a few minutes, and we will all remain alive.