A Philosophical Look at Contemporary Disputes (Column 563)
“For there is silence within the storms”
(Yechiel Mohar)
Last Wednesday I gave a lecture at Café Luda in Lod,[1] and the topic was a philosophical look at contemporary disputes. Some of these matters were discussed here in earlier columns that dealt with these controversies, but in the lecture I focused on one aspect that is worth our attention. I thought it worthwhile to devote two columns to these points.
Description of the Dispute and Its Significance
The present dispute is raging. Boundaries are being crossed day by day, and it seems there is something unusual here that did not exist in earlier controversies. We have had fierce arguments before, but the current feeling is that the dispute is extremely polarizing and that there is concern for the very existence of society and the state. It’s a bit reminiscent of the dispute around the Disengagement, and it’s no wonder that the comparison comes up again and again in today’s debates. In these columns I will try to examine the nature of the current dispute and, in particular, to compare it with the dispute over the Disengagement.
There is a tendency to attribute the storms and the radicalization to the fact that the issues at stake are very fundamental and important—touching the apple of people’s eye. These are sociological, psychological, and ideological explanations (the topic is especially important and/or infuriating, social rifts, and so on). But in my view the reason here is different and lies on the logical plane. The reason is that, unlike previous controversies, this dispute is being waged over the rules of the game, not within them.
For comparison, the dispute over the Disengagement was also very heated. People were outraged and complained against the institutions about the way the decision was made, about the content of the decision, and about the alienation from those harmed. As with protests occasionally held by supporters of the reform, the Disengagement also saw refusals and road blockages; there too there was a certain degree of institutional tolerance. But I’m not interested here in entering the details of those comparisons. I invoke the Disengagement precisely because of its seeming similarity to today’s dispute. My claim is that despite similarities in intensity and character, the reason for the storms then was different from the reason today. Then the reason was ideological; today the reason is logical.
The storms back then were ignited because of the importance and fundamental nature of the matter under discussion and the degree of harm to the values, property, and psyche of one side. It is no wonder that such deep harms arouse intense storms. But today’s storms are awakened not only because of the importance of the issue but mainly because the debate is about the rules of the game. The Disengagement was a deep and fundamental disagreement conducted within the framework of democratic rules of the game. It was clear how it was to be managed, and even if claims were heard that steps and behaviors deviated from the proper path, the impression was that the heated debate was conducted within clear rules. Today, however, the debate is about the rules themselves, and therefore, naturally, there is no way to conduct the debate within those rules, for they themselves are the subject of contention. I argue that, in principle, even if the topics under discussion were not so fundamental and important, one would expect lines to be crossed and norms to be exceeded, for that is the nature of a dispute waged over the rules of the game.
A Talmudic Example: The Dispute Between Beit Shammai and Beit Hillel
Disputes probably always existed among Israel, but the dispute between Beit Shammai (the School of Shammai) and Beit Hillel (the School of Hillel) was extremely unusual compared to everything that preceded it. Its unusual nature lay in its extremity (see below), in the length of time it persisted, in the consolidation of the disputants into two large and distinct “houses,” and of course in the breadth of its content (there are dozens of laws and conceptual positions on which the two schools disagreed).
The sages of Beit Hillel were more numerous than those of Beit Shammai, and ostensibly the halakhah should have been decided in their favor, since the rule is “incline after the majority.” There was, however, one famous exception at the session in the upper chamber of Ḥananiah ben Ḥizkiyah ben Garon, where Beit Shammai outnumbered Beit Hillel. Concerning the dispute at the session in the upper chamber of Ḥananiah ben Garon, the Tosefta (Shabbat 1:16) says:
“These are among the laws that were stated in the upper chamber of Ḥananiah ben Ḥizkiyah ben Garon when they went up to visit him: they counted and Beit Shammai outnumbered Beit Hillel; eighteen matters they decreed on that day, and that day was as hard for Israel as the day the [golden] calf was made.”
The Jerusalem Talmud (Shabbat 1:4) provides another description of this dispute:
“Rabbi Yehoshua Onyia taught: ‘The disciples of Beit Shammai stood below and were killing the disciples of Beit Hillel.’ It was taught: ‘Six of them went up, and the rest stood over them with swords and spears.’ It was taught: ‘Eighteen matters they decreed; in eighteen they outnumbered; and in eighteen they disagreed.’”
The Babylonian Talmud (Shabbat 17a) also gives the following description:
“They drove a sword into the study hall and said: ‘Whoever enters may enter and whoever leaves shall not leave.’ And on that day Hillel was bent and sat before Shammai like one of the students, and it was as hard for Israel as the day the [golden] calf was made.”
All of these descriptions point to the intensity of that dispute, reaching to the point of killing one another. The reasons were apparently the long duration and broad scope of the dispute, which threatened the wholeness of the people of Israel. The Torah was becoming like two different Torahs, and the fear of a split of the people and the Torah was palpable. When no decision can be reached in such a situation, it is no wonder that force and extreme measures are used, and ultimately they even come to kill each other. This certainly resembles our current situation. We cannot reach a decision by accepted means, and so extreme and unacceptable measures are taken. The split is already on the horizon. In such a situation there is an urgent need to reach a decision and an agreement in one way or another, and the question both then and now was how this can be done, especially if the very path to it is itself disputed.
In the end, a decision was reached in the dispute between the two schools. It is described in Eruvin 13b:
“Rabbi Abba said in the name of Shmuel: For three years Beit Shammai and Beit Hillel disagreed, these saying, ‘The halakhah is like us,’ and those saying, ‘The halakhah is like us.’ A bat kol (heavenly voice) went forth and said: ‘These and those are the words of the living God, but the halakhah is in accordance with Beit Hillel.’ And since both are the words of the living God, why did Beit Hillel merit that the halakhah be fixed like them? Because they were pleasant and humble; they would teach their own words and the words of Beit Shammai, and not only that, they would even place the words of Beit Shammai before their own.”
A bat kol emerges and rules that the halakhah follows Beit Hillel. From then on, the statements of Beit Shammai in place of Beit Hillel are not considered authoritative (see Berakhot 36b and many parallels). Because of the intensity of the dispute and the fear of it, once a decision was reached the sages were unwilling to allow it to flare up again. They decided to trample Beit Shammai and grant them and their positions no standing at all—unlike the usual practice in ordinary halakhic disputes.[2]
Two Difficulties and Their Resolution
Commentators on this passage raise two questions. First, why did they not put matters to a vote and decide the disputes by majority? The rule we have is “incline after the majority,” meant for use when a dispute arises. That is supposed to be the halakhic way to decide disagreements. What was unique about the dispute between Beit Shammai and Beit Hillel that did not allow the use of the majority rule? Incidentally, the very same question is asked today, when the dispute rages and people are unwilling to decide it by a vote and to accept the rule of the majority (as determined in elections). This question can pertain both to the lack of a decision in the dispute and to its very emergence: Why was the dispute between Beit Shammai and Beit Hillel so extreme? How did it arise at all? How does it differ from the disputes that preceded it?
Another question that arises from the Gemara is how a bat kol is allowed to decide a halakhic dispute, when the rule we have (Bava Metzia 59, in the story of the Oven of Achnai) is: “It is not in heaven.”
Tosafot raises this in the comment to “Here, after the bat kol,” Eruvin 6b:
“Here—after the bat kol. And if you would say: What is different, that we do not follow the bat kol in the case of Rabbi Eliezer concerning the oven made of earthenware (Bava Metzia 59b)?”
Tosafot offers two answers. The first:
“We can say that there [the bat kol] came out only for his honor, as is proven there.”
As a matter of halakhah we do heed a bat kol, but in the Oven of Achnai the bat kol did not truly intend to rule in favor of Rabbi Eliezer; it emerged only to honor him. According to this answer there is no general rule that we ignore a bat kol—at least when it emerges seriously to express a halakhic stance. This view is not very common among the commentators.
And the second:
“Moreover, there it was against the many, and the Torah says, ‘incline after the majority’; but here, on the contrary, Beit Hillel were the majority, and the bat kol was needed only because Beit Shammai were sharper.”
Here the assumption is the opposite: in truth a bat kol has no standing to make a halakhic decision—but only when it contradicts halakhic rules, such as going against the opinion of the majority. That was the situation for Rabbi Eliezer in the Oven of Achnai. But here Beit Hillel were the majority, and the bat kol supported them; therefore it does have standing. One might say that, in a sense, even here it had no standing and emerged only to remind us of the rule to follow the majority.
Within this, Tosafot wonders: What did Beit Shammai think? If Beit Hillel were indeed the majority, why did we need the bat kol’s help to understand that we must follow the majority? Did Beit Shammai dispute the halakhic rule “incline after the majority”? We should remember that it is explicit in the Torah. Tosafot answered my second question above, but the first difficulty remains: Why not follow the majority? As will be seen immediately, once we understand this point, the answers to the second difficulty will also become superfluous.
Tosafot explains Beit Shammai’s position by noting that they were sharper than Beit Hillel, and the rule to follow the majority applies only where the participants in the discussion are approximately equal in wisdom (as is explicitly stated in Yevamot 14a). Simply put, everyone—including Beit Hillel—agreed that Beit Shammai were indeed sharper and more incisive. This means that Beit Shammai also accepted the rule to follow the majority, but they claimed that the relevant “majority” was a majority of wisdom, not a majority of persons (we must count heads, not legs; see on this in Column 400). Therefore, Beit Shammai held that “incline after the majority” actually dictates that the halakhah follows them, not Beit Hillel.[3]
This, it seems, was the basis for the emergence and intensity of the dispute. There was a debate over the rules of the game themselves: Is the decisive majority a majority of heads or a majority of legs? Such a dispute cannot be decided, for even if they hold a vote to decide that very question, they will be stuck at the same point (should we follow Beit Shammai or Beit Hillel?). This is why, in that dispute, they could not decide by majority. This is also why they resorted to a bat kol. The rule that we do not resort to a bat kol applies only when we have a way to decide a dispute by means of halakhic rules. But if there is no halakhic way to decide, then “It is not in heaven” does not apply (perhaps this is exactly what Tosafot meant as well). This explains why, according to Beit Shammai, the majority was not followed and the dispute remained undecided, and it also explains why a bat kol emerged and was heeded despite “It is not in heaven”: it was the only way to extricate themselves from a deadlock for which no halakhic exit existed.
From here we can also understand why the dispute between the schools continued for so long. It cannot be decided through the rules, and so it continues endlessly without resolution, because it revolves around the rules themselves. In such a situation it is also clear why it became extreme: the only way to move forward was by force and extreme measures. Rules designed to resolve disputes and make decisions cannot be applied when the dispute concerns the rules themselves. The only way to save the people of Israel and the Torah was to use force (even to the point of killing) and extreme steps (trampling the legitimacy of the “losing” side).
Back to Us
My claim is that this is also the root of our situation today. The dispute is over the rules of the game, not over a specific substantive issue. Therefore, following the majority—the rule intended to resolve and decide disputes—is inapplicable. This dispute cannot be decided with democratic tools, since, as will be seen below, it concerns the rules of democracy themselves. It is no wonder that it appears insoluble and leads to extreme and even violent steps. The deviation from the rules of the game is the result of a logical problem: How do we decide a dispute that concerns the rules themselves? The customary decision rules within the game cannot serve us in such a situation, and what remains is the use of force and unconventional steps outside the rules of the game.
This can be better understood by returning to the comparison with what happened around the Disengagement. The debate there concerned a painful and difficult issue for a large public, but it did not deal with the rules of the game themselves. It was a sharp disagreement, and the steps taken expressed great pain and distress, but there one could argue that the debate had to be conducted by the democratic rules. Deviations from the rules stemmed from pain, not from a substantive justification. By contrast, when the debate is about the rules of the game themselves, deviating from the rules in conducting the debate is a logical consequence of the situation, not necessarily an expression of pain. The justification for these deviations is not only the pain and the harm to the protesting minority, but the fact that there is no way to demand that they operate within the rules if, in their view, those rules are being violated by the other side and are no longer binding.
The similarity between the situations (the debate over judicial reform and the debate over the Disengagement) actually sharpens the differences. If the deviations from the rules and the extremity there stemmed from the depth of harm to the ideology and views of one side, here the extremity and deviations arise from the fact that conduct cannot proceed within the rules. In the protesters’ view the rules have been broken and are no longer binding. From their standpoint, one side is not keeping the rules and demands that the other side obey them—an absurd demand. The protesting minority’s justification in our case is that, under the circumstances, there is no basis to demand that they act lawfully (a logical justification).
I will now explain the claim that the current debate turns on the rules of the game.
What Are “Rules of the Game”?
The current debate concerns Basic Laws and their status, the separation of powers and legislative procedures, oversight of the executive branch, and questions about how to handle conflicts among the branches and what authority each possesses. There is no dispute here over any specific content that could be seen as an ideological disagreement. The question is: What are the rules of the game, how are ideological decisions made, and how are disagreements between sides that do not agree ideologically to be resolved? The protesters argue that the government made a decision it has no authority to make—not merely that it acts in a way they deem wrong or harmful. By contrast, in the Disengagement the core debate was clearly ideological; therefore, in principle, it should have been conducted within the rules of the game.
In principle, one might claim that the Disengagement also broke the rules of the game: infringement of property rights, of the integrity of the land, of the right to protest, and so on; the way the decision was made was seen by many as an infringement of the rules. The claim would be that there are foundational assumptions that are never to be violated, even if the law itself does not require it. But this already broadens the concept of “rules of the game.” Under such broadening, anyone could in any instance with which he disagrees claim that the rules have been broken. That is formally possible but not plausible. As long as the discussion concerns specific content or a particular mode of conduct, it should be carried out within the rules. But here the subject of discussion is the rules themselves, not a local breach of them.
Incidentally, this is the root of the profound misunderstanding that appears again and again with Aharon Barak. He constantly wonders why he is hated and asks why what he did is controversial. He repeatedly says that all he sought was to regulate the situation and enable the sides to conduct their dispute appropriately by defining and maintaining the rules. His opponents, however, present him as an active side in the dispute. Why? Because he thought there was a dispute like any other and it should be conducted within the rules. But his opponents disputed the rules themselves and therefore saw him as a party, not a neutral arbiter. Today it is already clear to all that Barak is very much a side in the dispute (to a large extent he created it), because the dispute revolves around the rules as he and his colleagues designed them. The coalition seeks to change them and the protesters wish to preserve them. This is not a dispute over this or that decision, more or less important, but over the rules themselves.
In Column 552 I explained that this is what happens when the rules of the game are not well defined (upon the state’s founding the Constituent Assembly did not enact them in the form of a constitution, and we were left with a vacuum). In such a situation the matter is left to the players on the ground (the different branches), and it is no surprise that each tries to pull the rules in its own direction. We do not truly have rules of the game, and so each side tries to establish facts. There are no statutory determinations in our law concerning questions such as: What is a Basic Law? What is its status? How is it enacted? What is its relation to other laws? Which body should determine that relation? The relations among the branches and the types of considerations each may make—these too. A significant portion of our rules simply do not exist. The rules we do have are largely norms that took root through power plays or forceful takeovers of the field and its rules by the government or by the court. Therefore, even if the Knesset enacts a Basic Law, nobody knows what that means and whether it is even within its authority. It is no wonder that the High Court has hinted more than once at the possibility of reviewing Basic Laws—something that would seem logically impossible (since its authority is at most to review by Basic Laws; it is not a legislative body). But in the prevailing vacuum (mainly the Knesset’s fault), there are no definitions of what a Basic Law is and what to do with it. So what is the Court supposed to do with such a law? It makes decisions on its own according to its understanding and outlook. Ostensibly this is against the rules of the game, but in practice there are no real rules.
As I explained there, in truth it could not have been otherwise. Once a dispute arises and the court must decide and determine the legal result, if it does not find before it a law that guides it, it is no wonder that it is forced to set the rules itself. At bottom, these lacunae are the fault of the Knesset and the (original) Constituent Assembly. They created this vacuum in the rules, and we are left with a situation in which “every man does what is right in his own eyes.”
Where Our Rules of the Game Are Broken: Back to “Tyranny of the Majority”
If the root problem is indeed the absence of rules, then ostensibly the current coalition is doing well by trying to create them now. Better late than never. What the old Constituent Assembly should have done, the present Knesset will do (in its capacity as a constituent body). I will set aside for our purposes the fact that the coalition’s original proposal did not include very important elements of regulation (such as determining the path to enact Basic Laws and defining their status). At present the discussion is about a general arrangement, including those points. So why do so many claim that this action is problematic (contrary to the rules of the game, insofar as any exist)?
The explanation lies in the concept of “tyranny of the majority,” which I touched on briefly in Column 552 and elaborated on in Column 553. Here I will only recall the common understanding of it as moral: although the majority has the authority to decide, it must treat the minority appropriately and not harm it too severely. The claim is that the majority must not use its duly held power for unworthy purposes. I explained there that in many cases the concept of “tyranny of the majority” rests on a more fundamental consideration: there are situations in which the majority has no such power and authority at all. As I will now explain, in this respect the Disengagement and today’s dispute again diverge: there it was a moral demand; here that demand rests on a logical argument.
I explained there that the majority’s authority to set the path for the minority is conditioned on the minority’s agreement to this arrangement. When we decide to run a shared society for all of us, that decision includes each minority’s agreement to accept the majority’s decision (if that is the agreed rule). But when a dispute arises between a majority and a minority that do not belong to the same group, there the majority’s view has no decisive weight and there is no obligation to follow it. I illustrated this with a large state trying to dictate modes of operation to a smaller state. It cannot claim to it that it must obey because “we are the majority.” The reason is that the two states are two separate groups, and the majority’s authority exists only when disagreements arise within one group playing a shared game and making decisions jointly, according to rules agreed upon by all.
How do we determine that this is one group and an internal dispute within it? When all participants agreed to the rules that constitute this game. As part of those rules is, of course, the principle of following the majority, and if those rules were accepted, they are what grant the majority its authority. But if the minority declares that the game has been dissolved, or that the majority is deviating from the rules, then the basic situation returns: the majority has no authority to determine anything for the minority. Certainly when the discussion is about the rules themselves. In such a place, the majority has no meaning. Setting the rules is the constituting of the group, and each person must decide whether to join or not. Only after he joins and knows the rules do they apply to him—particularly the obligation to accept the majority’s decision.
The concept of “tyranny of the majority” thus takes on an additional meaning. The minority is not demanding that the majority take it into account through a moral claim. The minority argues that the majority has no authority at all to decide the fundamental rules. These require general consent, for they constitute the game, and from them arises the principle that grants the majority the authority to decide. Therefore, in this debate the minority does not accept the majority’s decision—not as a protest against draconian measures but because the majority has no authority to set the rules.
Note that this follows from the assertion at the beginning of the column. In the Disengagement one could say that the minority claimed against the majority that it was using its power for unworthy ends. That is a moral claim—that the majority’s harm to the minority is too severe—and so they ask it to desist. In other words, we might phrase it as preventing a “pursuer,” and one may strike a pursuer to save oneself. By contrast, today’s debate concerns the rules, and here the minority’s claims are logical, not ideological, sociological, or ethical. The minority argues that the majority is not acting by virtue of the authority vested in it. It has no authority to set the rules of the game.
In my understanding this is the root of the intensification of today’s protest. The protesters claim that the coalition has broken the rules, or rather is trying to constitute them on its own without consent—and even a majority has no mandate to do this. Once the rules are broken, actions and modes of protest that deviate from the rules can be used. One can no longer argue to the protesters that they must act by the rules, and certainly not that they must accept the majority’s decision.
From here you can understand the massive road blockages, refusal in the army (without entering the debate over whether this involved only refraining from volunteering or actual refusal—beyond doubt there were threats of outright refusal), threats of tax rebellion and refusal to enlist, and more. We can also add steps that are not illegal but deviate from accepted norms, such as moving funds and businesses abroad solely as a protest, preventing foreign investment, enlisting international actors (sometimes with false claims), and more. All these are accused of being illegitimate activities against a democratic majority decision made in free elections, duly and lawfully. The protesters’ claim is that there is no game because the rules have been broken, and therefore the majority’s decision has no validity (remember Beit Shammai?), and so the protesters do not see themselves as obligated to conduct themselves by the rules.[4]
It seems to me that the Supreme Court’s review of Basic Laws is also a deviation from the rules on a similar basis. The Court sees that arbitrary grabs are being made without a legal basis (Basic Laws are being set arbitrarily and without justification, merely for conjunctural purposes, and nevertheless granted the status of a Basic Law), so it decides to permit itself to review Basic Laws. It is indeed acting here not in accordance with the rules, but it does so out of a sense that the rules have been broken—“when they break the tools, we don’t play.”
Is a De Facto Dissolution of the Group/Game Required?
In the column cited I presented the minority’s right to oppose the majority on the basis of dissolving the game. But I noted there that there are intermediate situations in which the package is not actually dissolved, yet one may oppose the majority’s decision by virtue of the principled ability to dissolve the game (I referred to this there as a kind of migo: if I may dissolve the package, then certainly I may oppose things done within it). In light of what we have seen here, we can phrase this differently. At the stage when the rules are being discussed, the consent of all participants is required and the majority has no right that its opinion be accepted. This is not about dissolving the package but about its construction. This is not opposition to the majority’s view and authority and dissolution of the package, but a demand for the minority’s partnership (broad consent) in the initial construction of the game/field.
This picture creates another difference between the Disengagement and today’s debate. We saw that during the Disengagement the minority’s protest was based on a demand that the majority avoid tyranny. I did note that—if we adopt a somewhat broadened lexicon—one might perhaps see such conduct as breaking the rules, but at most that leads to current dissolution of the package, because the majority is not behaving properly. By contrast, in today’s debate there is a claim that the initial joining of the game was mistaken. We joined certain rules, not those you are now trying to impose (al da’ata dehai—on this understanding—we did not join). This is a stronger claim than dissolution. Dissolution is breach of contract, perhaps for a justified reason; but the debate over the rules is a claim that ab initio there is no contract and no game (for this is not the contract we joined).[5]
In the next column we will deal with different situations in which one may act contrary to the system’s laws, and after that we will return to our discussion.
[1] This is a laudable social project established not for profit. Its goal is to employ at-risk youth and women together with students and to create a venue for leisure and culture in Lod, the City of Lights. I also gave the lecture for Zikaron BaSalon there on the last Holocaust Remembrance Day (on judging evil).
[2] Incidentally, the Talmud is full of discussions of Beit Shammai’s positions, and there are even passages in which the halakhah follows them. This is another example of the ambivalent attitude of the Talmud and halakhah to sweeping rules, which I have noted more than once.
[3] For some reason—by chance or not—the dispute over which majority to follow split according to reality: the sharper Beit Shammai also held that sharpness is the decisive majority, and the less-sharp Beit Hillel also held that the numerical majority decides. See also Columns 195–196 on paradox and anti-paradox.
[4] Incidentally, Rabbi Eliezer the Great did not accept the majority’s decision in the dispute over the Oven of Achnai (Bava Metzia 59) and remained excommunicated alone in Lod until his death. One can understand why he did not accept the majority’s decision, for in his view the majority is meaningless when one knows the truth (he possessed all the traditions and knew the halakhah). On the other hand, it is also clear why they excommunicated him: there was no other way to deal with someone who does not accept the rules. Rabban Gamliel of Yavneh, his brother-in-law, was removed from his presidency on the same grounds, but he accepted the new rules and was therefore reinstated (in rotation with Rabbi Elazar ben Azariah). See on this in my article here and in the prologue to my book Mehalakhim Bein HaOmdim.
[5] This is entirely parallel to the difference between a “petach” (opening) and “charatah” (regret) in the annulment of vows. Some decisors hold that one can turn regret into an opening—i.e., had the person known he would regret it, he would not have vowed in the first place—but simply put, the difference between the two mechanisms is that regret dissolves from now on, whereas an opening uproots retroactively (“on that understanding I did not vow”).
Discussion
According to this, what gives the majority the (moral) authority to compel the individual in the state to act like it does, if the individual does not agree to the rules of the game?
I don't know whom you are calling the 'right' here. The current coalition is the radical left.
If he does not agree to the rules of the game, then he should not participate in it. Whoever participates is presumed to have implicitly agreed to the rules.
Beit Shammai and Beit Hillel—was it accidental that each side held that the ruling should accord with its own view, and not, on the contrary, with that of the other side (and still, they would properly kill one another over it)? Of course, coincidence or bias is possible. But what do you think of the following proposal: the rules of decision are themselves decided according to outcomes, like a theory by experiment; and if Beit Hillel see that in a hundred disputes the sharper sages of Beit Shammai say the opposite, and in Beit Hillel’s opinion Beit Shammai are mistaken, then there is no logic in setting a rule of decision according to superior wisdom if that will lead to erroneous outcomes (in Beit Hillel’s view). Not because empiricism (in those hundred experiments) proves to them that the rule of decision (following superior wisdom) is mistaken, but because the rules of decision are subordinate to the substantive decisions given. The rules of decision are not an independent principle, but an attempt to estimate what will best advance the specific outcomes I am interested in.
In my haste I missed note 3, which refers to columns 195–6, and I will look there.
The logic works both ways, including toward the right.
The right understands that Aharon Barak’s move thirty years ago was a breaking of the rules of the game, so it is legitimate for the right too to take extreme steps in order to change the rules. At the moment, the main tool at its disposal is the Knesset and the government, so it is legitimate to act through them (even aggressively).
There is no answer there to these questions.
It is an interesting proposal, but in my view the rules should be set behind a veil of ignorance, not according to the specific circumstances before us. So too in the current dispute, where both sides want to set the rules of the game according to the government that happens to be in power now, without considering what will happen with those rules under other governments. That is true of both sides in the dispute. In my opinion, the rules of the game should be determined according to principled logic and ethics, while ignoring the specific individuals and groups currently occupying the roles. The same applies to Beit Shammai and Beit Hillel. There too, it would not have been proper to set the rules in order to advance a particular agenda. I seem to recall that we once argued about this (perhaps when I spoke about the problematic nature of our legislative methods and unstable laws that people use to advance an agenda, and you wondered what was wrong with that).
After all, Beit Hillel should take into account that their view that Beit Shammai are mistaken itself stems from the fact that they do not fully understand them (like Rabbi Meir, whose colleagues could not plumb the depths of his opinion because of the force of his sharpness).
That does not mean that Beit Hillel and Beit Shammai acted properly, and perhaps they really did want to set the rules while disregarding the veil of ignorance. But as I understand it, that would not be proper.
Another analogy is the well-known paradox of a capital court in which everyone voted for a death sentence and the twenty-third judge hesitates because apparently he ought to vote the opposite of what he thinks. About that too I wrote that he should vote according to what he thinks and not take the outcomes into account. I explained that if he votes opposite to what he thinks, that is problematic, for the Torah does not want a defendant to be executed when all the judges think he is liable to death—and that is in fact what would happen now. We should not be wiser than the Torah/Halakhah. In the dispute between Beit Shammai and Beit Hillel there is the same principle. Beit Hillel want to be wiser than the Torah/Halakhah, and although it would be proper to follow sharpness, they will adopt the view that one follows the feet in order to advance the correct agenda in their view. But the Torah wants sharpness to determine the ruling (that is their principled assumption, were it not for the agenda).
Absolutely. My intention was to explain both sides.
Except that in practice the coalition (which has nothing to do with the right—this is the far left) does not think it is departing from the rules (on the contrary, they talk about the majority’s decision as binding, and that the protesters are acting against the rules). The protesters agree that they themselves are acting against the rules, and therefore a justification is required for that.
A note.
How can one claim a majority when in the election the current coalition won less than 48.5% of the vote?
(2 parties from the opposing side were around the electoral threshold and did not pass it.)
That is: factually, there was no majority.
Admittedly, legally they now have a majority in parliament.
I assume routine governing matters and routine budget matters are in their hands to manage.
That is what one has in mind when going to the polls.
But a value-based change and playing with the basic definitions of the nation—they really did not have a majority for that in reality…
If so, they truly have no mandate to change, and they have no majority claim…
Needless to say, according to the polls now the opposition wins 70 seats and upward,
and specifically regarding the proposals to smash the judicial system there is a minority of 20% that supports it, or a third (depending on different polls, mainly in how the question is presented; for example, the government proposal + slight changes in favor of the opposition’s position raises support from 20% to about a third),
and the overwhelming and unequivocal majority is against it.
If so, they have no value-based or moral authority in such matters.
This is a claim that definitely infuriates anyone who opposes the coup.
In plain Hebrew: who put you in charge???
Where does this stubbornness come from, calling the current coalition the far left?
Come, let’s think together:
Repealing the Disengagement Law in northern Samaria—is that the far left?
Legalizing 9 outposts, a very large part of them in a very, very strategic location—is that the far left?
A decision on 10,000 additional housing units in Judea and Samaria (and more will be coming soon, God willing)—is that the far left?
Smotrich’s economic policy—is that economically far-left?
A crazy budget allocation for infrastructure in Judea and Samaria—is that the far left?
A record number of terrorists eliminated during the current government’s term—is that the far left?
So true, there is room to criticize the government—
They are not responding properly to fire from Gaza.
They are still not demonstrating governance in all parts of the country.
Also in economic conduct one can identify socialism (well, what can you do, the Haredim are in the coalition). And so on.
But Michi, why are you behaving in a demagogic way that makes you seem both unserious and insincere?
As far as I remember, the coalition had a majority of the votes even if you take the invalid ballots into account. Beyond that, those are the rules of the game. The majority is determined at the ballot box, not in polls and not in other calculations. It is true that broad agreement is needed for formulating the rules of the game, and that is what I wrote. But absent that, clearly they are acting according to the rules of the game.
I have explained more than once why in my opinion this is the far left. A policy that strengthens the government at the expense of the judicial system is left-wing (centralism of the executive branch). Transferring money to non-productive populations is socialism. Indifference to economic considerations is left-wing. Other governments also legalized outposts, and I still have not seen what came of it in the final accounting. And we have not even begun to talk about governance and the response to terror and to Gaza, etc. In short, a left that babbles right-wing slogans.
A. To be precise, only about 48.3% of the vote,
and not a majority.
B. True, they are operating within the rules of the game regarding various matters that the government has decided on for 75 years.
But if they suddenly come to change the basic definitions of government in the nation, and pave the way for far-reaching changes in the nation’s program of action (and not just regular and commonplace governmental matters), the question arises: who put you in charge?
After all, you now have no factual majority in the nation,
and in fact you never did.
And that is even for a majority in the minimal sense of the word: 50% of the votes + 1 vote.
All the more so that this is not broad agreement…
Now it is clear that no opponent of the coup will fail to resist, by whatever means possible.
There is a great deal of exaggeration in attributing the constitutional revolution to Aharon Barak.
A kind of cunning demon who stole the public’s right to choose in the dark.
Those who passed the laws of the revolution were Dan Meridor and Uriel Lynn from Likud, according to the principle of judicial supremacy from the school of Menachem Begin.
There are long and orderly protocols from Knesset sessions in which they discuss the possibility of annulling laws, with opponents and supporters, and in the end a compromise is defined that annulment of laws by the judiciary will apply only prospectively, and the existing laws are entrenched…
These are wearisome and unnecessary hairsplittings. Those who claim that Barak invented the possibility of invalidating laws on the basis of Basic Laws are really talking nonsense. Not only because of the protocols, and not only because two years later those amendments were explicitly inserted into the law, but because that is the plain meaning of Basic Laws. When the Knesset determined that these are Basic Laws, it is only reasonable to infer from this that they override ordinary laws.
But that is not the main claim against Barak. He instituted several far-reaching changes in addition to that (expanding standing, reasonableness and good faith, the status of legal advisers, which court can invalidate laws, and more). There are lectures by Daniel Friedman and others that lay out the matter.
It is true that Barak’s part is exaggerated somewhat (it began even earlier, mainly with Shamgar).
I am not speaking from his side, but from the side of the state. For example, there was a man (search on YouTube) who declared his own state, of which he is the king. Apparently that is illegal, and they arrested him. The question is: what authority does the state have to do that? (Let us put it this way: I understand why he should not be allowed to drive on the state’s roads, but to print an identity card, etc., seems reasonable to me.)
And how does the rabbi think it would be proper to balance the above changes?
The reasonableness doctrine, standing, and the status of legal counsel..
And more generally, can the rabbi give an example of a reform that seems reasonable in his eyes?
Is the rabbi in favor of changing the committee after Sa’ar’s change?
Is the rabbi in favor of an override clause even if the conditions for invalidating laws by the High Court are made stricter (say, a panel of 11 judges requiring a majority of 7 or 8)?
If the rabbi still thinks an override is needed, what majority should be required?
This is a question that cannot be answered briefly. I will write in principle, off the cuff.
The reasonableness doctrine should apply not to a law but to an administrative decision. A legal adviser can be an appointment of trust, but his decisions should be binding (and preferably there should be no possibility of dismissing him).
The current state of the judicial appointments committee is perfectly fine and there is no need for change.
Invalidation of laws by the High Court only in a full panel and by a large majority (for example, 12). And once that is possible, the Knesset could override the invalidation only by a majority of the coalition plus several from the opposition (say 5).
All this after enacting a Basic Law: Legislation that will determine what a Basic Law is (only principled subjects), how it is adopted (preferably in four readings across two Knessets), what its status is (vis-à-vis ordinary laws), and who can invalidate an ordinary law by virtue of it (only the Supreme Court).
As for strengthening the government at the expense of the judicial system,
Bennett and Shaked too—Yamina, Yisrael Beiteinu, and of course also Feiglin’s “Zehut”—all of them made weakening the court part of their banner, even more so than Levin’s original reform.
They are all far left on this issue. Fine, okay. We heard.
Transferring money to non-productive populations—
Israeli governments have always done this. Some more and some less. Bennett was more in the direction of the Arab Muslim public. I do not recall hearing you call him “far left” on that score either.
In any case, Israel’s economic policy is really not socialist, despite what has to be paid to non-productive populations (which is something one has to improvise within).
“Indifference to economic considerations”—cheap demagoguery. That too is not worth a response. Even if you bring one or two examples of that, I will bring a million examples of very caring and serious policy managed by Bibi and Smotrich.
Legalizing outposts—which outposts did previous governments legalize?
Can you mention something that happened in recent years?
Have you read on left-wing organizations’ websites about the significance of legalizing these ten/nine strategic outposts?
Have you perhaps heard about “Zin Ra'anan” in Talmon?
Have you perhaps gone onto the Peace Now website, or are you just spouting words and nonsense without knowing the facts?
I also want to explain to you why regulating these outposts is a right-wing policy—
It deepens the State of Israel’s hold on Judea and Samaria, and causes the dream of an Arab state between the sea and the Jordan to recede further and further. That is called a right-wing policy.
I am unable to explain it any better than that. I hope you understood.
All right, so we are left with the claims that there is no governance and no response to Gaza—
As for Gaza, there is some response, which even Gantz recently defined as a very serious response. The fact that we expect, and rightly so, a stronger response is excellent and legitimate. But that does not mean there is no response because of Gaza. Soon they will also renew aerial assassinations there.
As for the lack of governance—you are welcome to turn to all the legal authorities that delay laws such as searching homes for weapons without a warrant, or judges who are not severe enough with serious criminals (especially in the Arab sector), or who simply delay the establishment of the National Guard. And in general, the previous governments that did not deal with the police’s hardships and did not increase budgets.
And of course, in addition to what I have written so far, you are evading the parameters that show that one cannot call this government far left:
Record construction in Judea and Samaria, record terrorist eliminations, record budget for infrastructure in Judea and Samaria, opening the market to more competitors (a very socialist move).
A demagogue and a babbler.
A. Do you really think the reason for the protest stems only from breaking the rules of the game, and not from trying to bring down the government or promote progressive values and trample Jewish values? Because according to those represented at the demonstrations, that does not seem to be the case.
B. How is changing the committee for selecting judges / an override clause / the attorney general’s position / the reasonableness doctrine related to changing the rules of the game?
C. Let us assume you are right and in matters related to the rules of the game the majority has no advantage over the minority—then what is the value of general agreement? Would one person who objects be able to claim that he is not part of the group?
And perhaps he will decide that the time has come to shoot with live ammunition against the dictatorship, like that lawyer whose name I forgot.
A. What brought out the masses was the breaking of the rules of the game. There are extremists on every side of the protest. So what?
B. These are the rules of the game that existed until now.
And this is what they are coming to abolish.
And some of the people are not willing to accept that.
C. Broad agreement—even individuals tend to accept it, and if really not, then they leave.
In my opinion, the debate begins with the question of what the source of authority is—reason or the people. And from there also grows the claim about breaking the rules of the game (if the source of authority is reason, then the Knesset does not have the authority to change the rules for selecting the High Court, which is the representative of reason, and turn them into political ones). For me, as a supporter of the reform, the pilots’ actions are a revolt against an elected government, even if they found a legal loophole to do so.
Two notes on the notes:
– We also find that Beit Shammai in place of Beit Hillel makes no difference (it seems to me at the beginning of Yevamot). The Talmud did not always attribute importance to Beit Shammai.
– Rabban Gamliel of Yavneh, not Rabban Gamliel the Elder, who lived during the time of the Temple.
Mendi,
A. I think that is the main reason, and I explained why. People wanted the same things before as well, and the uproars were not like this. The desire to bring down the government attached itself to the protest against the reform, and it is part of the matter. A government that breaks the rules of the game is one people want to topple. Nobody wants to trample Jewish values except the government itself, which tramples them crudely. Promoting progressive values did not touch this protest by even a fingertip. That is propaganda of Bibists-Haredim-Hardalim. The fact that there are also LGBT flags there represents a tiny, tiny fraction of the protesters, and they too bring that into it because the government and its breaking of the rules of the game threaten them.
B. I explained this well. Beyond that, there is no need for any explanation. You listed here a set of rules of the game, so discussing them is discussing the rules of the game.
C. No. There is common sense. You need broad agreement from a variety of people. That is how public decisions are made. If there is one person who thinks otherwise, that is not very interesting.
If someone thinks a dictatorship is going to arise here, then I completely understand his shooting with a weapon. From his perspective, that is entirely legitimate.
I disagree. In my opinion, reason has nothing whatsoever to do with democracy. See columns 69 and 79 on the meaning of a democratic majority. And yet in my view the majority has no authority to change the rules of the game.
The pilots did not find a legal loophole to do this, but a moral loophole. It is not legal, but it is entirely moral (from their perspective).
As for Beit Shammai, you only needed to read the column. I brought both the saying and its sources there.
As for Rabban Gamliel, indeed. I made a mistake there.
The idea that a person has the right to govern his own life is a rational idea. Therefore there is a connection between democracy and reason. The problem begins when the judges appointed themselves representatives of reason here בארץ. With your permission, I expanded on that here:
https://yuddaaled.wordpress.com/2023/03/30/%d7%9e%d7%94-%d7%9e%d7%a7%d7%95%d7%a8-%d7%94%d7%a1%d7%9e%d7%9b%d7%95%d7%aa/
That is a value, and therefore I would not see it as a rational idea. When I wrote here that it has no connection to reason, I meant that democratic decisions do not strive for truth (the best decision) but for what the public wants. As explained in the above-mentioned columns of mine.
In my opinion, you are presenting things too extremely. The court does not represent reason against the will of the people; rather, it is a body whose purpose is to review an interested body with a great deal of power (the government), in order to prevent rampaging that itself can also exceed the bounds of the law and the public will.
Is a situation in which judges have veto power something reasonable? And what do judges (and lawyers) have to look for on such a committee anyway? After all, today it is clear that judging is not just a professional matter but a more political one, so only public representatives should choose them.
The whole story with the attorney general is a joke altogether. Who ever heard of such a thing, that the government’s lawyer becomes its judge? Does that seem reasonable to the rabbi? How can a government take responsibility for its actions in such a case? See the case of Smotrich and the exemption from testing imported medicines. That is proof that the rabbi himself is no longer reasonable.
He has simply lost his sanity.
I am currently hospitalized, so I cannot answer your devastating objections.
Michi, please publish visiting days and hours. 😉
Be careful—madness is a contagious disease.
“The people” have no authority over the individual, otherwise the German people would have had the authority to burn the Jewish minority, and Christian/Muslim rule would have had the authority to force religious conversion on the Jewish minority.
It is interesting to see that Hitler too liked to claim that he was doing things in the name of the people (Volk).
The individual has inalienable rights that “the people” (or the majority) have no right to deny.
Usually individual rights are anchored in a constitution (which we have not been privileged to have here), and the protector is the court, which serves as a barrier against the tyranny of the majority.
I do not know whether Your Honor served in the army, but a commander in the army has the authority to order a charge even at the cost of risking life (in cases of near-certain suicide they usually ask for a volunteer). And if someone refuses, he can be court-martialed and executed on the spot. In fact, every law assumes that the state has authority over the individual. Otherwise it would be impossible to punish you for noncompliance with the law.
The criticism of the Nazi regime or of other regimes that did other terrible things does not come from political science but from morality. The majority has the power to do things to the minority whether we like it or not. And with that, we assume that in a dynamic democratic regime the majority will recoil from taking extreme actions for various reasons. See Yagil Henkin on the subject:
https://www.dyoma.co.il/%D7%99%D7%92%D7%99%D7%9C-%D7%94%D7%A0%D7%A7%D7%99%D7%9F/1608-%D7%9E%D7%99-%D7%99%D7%92%D7%9F-%D7%A2%D7%9C-%D7%94%D7%92-%D7%99%D7%A0%D7%92-%D7%99%D7%9D-%E2%80%93-%D7%A2%D7%99%D7%A7%D7%A8%D7%95%D7%9F-%D7%94%D7%94%D7%A4%D7%99%D7%9B%D7%95%D7%AA,-%D7%9E%D7%97%D7%99%D7%A8-%D7%94%D7%A9%D7%99%D7%A0%D7%95%D7%99-%D7%95%D7%94%D7%94%D7%AA%D7%97%D7%A8%D7%95%D7%AA-%D7%A2%D7%9C-%D7%AA%D7%9E%D7%99%D7%9B%D7%AA-%D7%94%D7%9E%D7%99%D7%A2%D7%95%D7%98
Individual rights are defined by law. If the court had kept the law and had not tried to expropriate for itself my right to review the reasonableness of government decisions, there would have been no need for reform at all. The only reason for the reform is the court’s disgraceful attempt to steal from me the democratic right to determine whether the government’s decisions were reasonable or unreasonable in my eyes and in the eyes of every other voter.
“For with stammering lips and another tongue He will speak to this people.”
Our rabbi Michael flees to the philosophical perspective and discusses the demonstrations as if they were based on lofty principles and noble feelings.
I, earthy creature that I am, prefer the words of our rabbi’s friend, Professor Mautner.
The demonstrations are those of a public that has lost power and wants to keep ruling.
Professor Mautner’s language speaks of the desire for power, the desire to shape the public sphere contrary
to the public’s will, on the basis of legal interpretation—and all this on the part of the opposition, which found in the court an eager partner.
These are Professor Mautner’s words—not mine (Mautner is not a Bibist).
Professor Mautner’s lecture was given about fifteen years ago.
Since then he has become detested in the eyes of the liberals.
In particular, he emphasizes that the court took for itself the right to invalidate laws—a right that was not given to it by the legislature.
You really are talking nonsense. There are two errors in your remarks: 1. Ad hominem (so what if Mautner said it?). 2. As far as I know, he did not say this. He understands the demonstrations today very well, and in his view too they have very good reasons. He does not agree with the extreme protests or the apocalyptic forecasts, but as far as I know he certainly shares the criticism of the reform’s extremism and of its legitimacy. Obviously, at the base of the demonstrations there is also an attempt to change the election results, but broad social processes of this kind are immediately driven by many reasons of many groups. To say that all this is nothing but an attempt not to accept the election results is just nonsense.
All this was indeed all very nice and good and very interesting, until the protests continued, at exactly the same intensity (and even with publications like “precisely now it is very important to demonstrate”), and on a host of other issues (which are entirely within the rules of the game) even after they had already announced the start of talks in order to reach broad agreement, and even after they had actually begun. So philosophical or not—it is simply unrelated to reality. It has no connection to determining the rules of the game, which half the demonstrators do not know in practice, nor what the reform is trying to change in them, and the half who do understand use them as a spade to dig with, and this is clear from their rhetoric about the end of democracy (up to the point of a Haaretz article whose title was something about how abolishing the seniority system is the beginning of dictatorship, and a recent article by Talia Sasson to the effect that in a “proper state” the seniority system is something self-evident. Such nonsense can come only from the keyboards of people who know there is no connection between what they are writing and reality).
I do not know why this became a reply to someone specific; I meant to respond to the post itself.
Your Honor served in the army for 3 years and found that sufficient.
Your Honor would not want to spend his life in a state under military rule.
The army is an anomaly, not the norm.
What Your Honor is claiming is that the right to life, to freedom, to freedom of religion, to property, and the rest of human rights come to me because the majority was good enough to give them to me, and if the majority decides otherwise, the rights will be taken away.
A hundred years ago there was a governing ideology like that, which has since lost some of its luster.
But you have come to restore the crown to its former glory.
These are tendentious and demagogic generalizations. The demonstrators know the rules of the game exactly as well as you do. They are all protesting the reform, and some of them also drape over that a desire against the government and its decisions. Entirely legitimate. If you choose foolish statements, I can offer you a thousand times as many from the other side. That is demagoguery.
They always come to you only because the majority or the collective decides to grant them to you. Without that, you return to the state of nature, and then there are no rights at all. People forget that without the state, rights would be meaningless. Therefore Sha'arei Yosher argued that the assumption of the state’s existence precedes the Torah, since the Torah assumes there is property in the world even before the Torah. The only thing that did precede the state is moral duties—but moral duties, unlike rights, are not absolute (see the site owner’s discussion of Rashi’s position on the prohibition of saving a life at the expense of another person’s property in column 291).
Since the existence of the state requires broad social agreement (a social contract) on a national basis, then yes, the rights you listed come to you solely because the majority was good enough to give them to you. One need not be ungrateful, and one can certainly be grateful to it for that.
With your pardon, I will intervene only in the last message. In my opinion, nothing here is correct.
First, Rabbi Shimon does not speak about a state but about legal agreement. That can exist in any group. He also does not speak about human rights but about property rights specifically, and only those.
Second, the state of nature is a fiction that describes facts, not essence. It may be true that in the state of nature there was violence, but that does not mean there were no rights then. At most, there were people who did not observe them. There are such people today too. There are always criminals.
And third, the majority does not give anyone rights. Rights exist by virtue of our being human beings and a human society, and they are given to us by the Holy One, blessed be He. At most, the majority is supposed to protect them and not exploit its power to violate existing rights. It is not the one that grants them.
To be grateful to the majority for not exploiting its power to violate my rights is like being grateful to a thug for not murdering me.
In my opinion, in the state of nature there are only moral duties. Therefore God judged Cain for killing Abel, and international war criminals who committed crimes against humanity can be tried. But talking about rights outside a legal framework seems illogical to me. Only the law grants rights to the citizen as part of the social contract. God, as the giver of the Torah, grants rights that derive from the Torah, but there are no rights from God in the natural non-civic state (in my opinion this is the High Court’s mistake regarding infiltrators), only moral duties.
So yes, one need not thank the majority for not murdering me—that is its moral duty—but one should thank it for the legal framework within which I, as a citizen, have civil rights.
Y.D., your views are the best possible explanation for why the protest is necessary.
We remember what happened in countries where your views took over the legal system.
I assume you studied in an educational system similar to mine (perhaps a few years later), and each time anew I am astonished to discover how warped ideas have become legitimate.
The first time I heard Yeshayahu Leibowitz’s theory of corruption, I thought he was being polemical and that there was no chance the chosen people, who knew persecution and Holocaust, would adopt the norms of their persecutors.
Today it seems he was gentle with us…
Forgive me, but I am not claiming that there are no moral duties in the natural state. Moral duties exist in every situation, and one can judge a person who violated moral duties just as God judged Cain for the murder of Abel and as today international criminals are judged. What does not exist in the state of nature is rights, because rights are a derivative of citizenship.
And indeed, precisely because of that there needs to be a reform so that judges will make the distinction between civil rights belonging to the citizens over whom they are entrusted, as those rights are defined in law, and moral duties entrusted to the elected echelon, whose reasonableness is judged by the voters.
[I took some time to think, although in the end I came up with nothing].
There are substantive “rules of the game” that are an outgrowth of fairness, such as decision by majority, about which you wrote in one of the columns that it is not on the side of clarifying the truth but rather a result of each person’s freedom to decide his own future. But there are technical rules that contain nothing except an attempt to fence in the results. Separation of powers has no value status of its own; it is merely an attempt to set rules that will bring about reasonable outcomes and prevent overly bad ones. With technical rules, apparently there is no possibility at all of discussing them “on their own merits,” detached from the outcomes. If the whole technical rule I am trying to agree upon is one that will advance my goals, then one cannot use the veil of ignorance and neutralize my principles, for it is only for their sake that there is any business with technical rules. A veil of ignorance can only filter biases such as personal interests when dealing with the clarification of objective principles. Therefore, seemingly, the discussion (if there are no gaps in knowledge between the sides) should be about outcomes, and after they somehow agree on them one can try to determine rigid formal rules of the game, insofar as possible, which by reasonable approximation will preserve the agreed range of outcomes. Is there a difference between substantive and technical rules, and can technical rules be discussed detached from outcomes behind a veil of ignorance?
As for the paradox of the twenty-third judge, on a purely formal level it seems to me that the proof should be rejected. You prove that the judge must state his opinion (that the defendant is liable) because otherwise he is outsmarting the Torah, which wanted precisely that the defendant go free. One could say that what the Torah wanted is that in a case where the judge sees that everyone has been swept along unanimously, then if he is sufficiently sure that everyone has been swept along and erred, he should have the ability to veto the decision and say “liable,” thereby acquitting the defendant. [Of course, if the Torah’s will really was a scriptural decree not to rely on the judges’ wisdom in a case where all say “liable,” then certainly it is as you say, that the judge must state the truth as he sees it and not play tricks. And in the reverse case too (if the law were that if all say “not liable,” then he is liable), he would have to state his opinion that the defendant is not liable, even though in his view that would send a righteous defendant to his death. Although regarding conspiring witnesses you said it is unreasonable that there be a scriptural decree to execute, here it is not a scriptural decree but the Torah’s own estimate, which is not subject to weighting within the judges’ system].
In my opinion, one can and should set rules of the game even without first determining outcomes. True, this is not a moral obligation, but it is a better way, because otherwise everything is subordinate to an agenda and it will be difficult to reach agreement. Think of two people with different goals. If they want to set common rules and each one’s criterion is achieving his own goals, there is no chance they will agree on the rules.
That is unreasonable hairsplitting.
In fact, as an equally sharp opponent of the reform, I must admit that formally they do have the authority to pass it, and probably even the authority to crown Bibi as a monarch by an ordinary majority. The constituent assembly acted recklessly and defined no limitation on itself or on a future Knesset. If, as is accepted by all sides, one sees the Knesset as a constituent authority, then it did not bequeath any limitation on that authority. [Unless one sees the Declaration of Independence itself or the Partition Resolution as binding documents—which seems to me less far-fetched than people make it out to be.]
Still, I will fight it because I do not want to live in a dictatorship, and I am not prepared to pay for that recklessness by living in a dictatorship.
B. This side changed the rules of the game from the 1990s onward. The other side waited patiently to change it according to law, and now people come with complaints against it?
You ignored the first part of what I said; you addressed what was convenient for you to address (“generalizations”—because I really meant half and half exactly, down to the percentage. So much for the principle of charity, eh?). For the record—yes, I know some demonstrators who know what they are talking about, and I just disagree with them. And you call me a demagogue. Truly a lesson in rhetoric.
Absolutely not true!
He changed it without authority, and there was no need to obey his rulings at all.
They are changing it with full authority and according to law.
1. I said, “I, earthy creature that I am, think like Professor Mautner”—and since Professor Mautner too opposes the “judicial coup,” I can indeed see him as supporting evidence.
After all, you cannot claim that he is a “Bibist.”
All I said was—the justices are human beings, not angels—and my point of view,
earthy as it is, is that they too lust for power. Why is that nonsense?
And Professor Avineri already said this in 95.
2. Here are Mautner’s words—an interview in the newspaper “Haaretz,” 1.03.2023
https://www.haaretz.co.il/magazine/the-edge/2023-03-01/ty-article-magazine/.highlight/00000186-9c7e-d2ea-af96-dcfe50100000
There is also a lecture of his on YouTube—from 15 years ago (apparently)
And there is more—see there.
I have already answered everything. Nobody says the justices are not human, and nobody says they always act properly. As for the aspiration to power, that is a matter of definition. But it seems to me that attentive dialogue is impossible here, so we will end here.
There is a concept of a temporary ruling, permitted only for a certain time in order to save the people of Israel, in the context of Sisera; besides, she was one of the nations of the world.
Hitler used “the people” in order to escape morality, whereas in democracy “the people” is the way to clarify morality. Whose moral opinion is more correct: yours or mine? Aharon Barak’s or Netanyahu’s? Ahmad Tibi’s or Aryeh Deri’s? The practical difference, of course, is not with respect to truth but with respect to coercion within the system.
No one, in our argument in Israel, claims that the people as sovereign are always perfect and cannot support injustices; everyone admits that possibility. The problem is that the left—or the opponents of the reform—deny the fact that everyone can be wicked, including High Court judges. Studying law does not make a person more righteous or more correct than anyone else. They have no superiority whatsoever over anyone else’s positions and opinions. Just as the Knesset can legislate against redheads, so a panel of three High Court judges can interpret in a ruling that freedom of movement does not apply to redheads.
And in such a situation, the principle the reform comes to implement is to restore the values in the public sphere to ones that depend on the dynamics within society. For today, a situation in which 3 judges can invalidate legislation agreed upon wall-to-wall by 120 Knesset members is identical to what happens in Iran: the people choose, but the ayatollahs decide whether that choice has any value. And as is known, we did not elect the ayatollahs of the High Court.
What should the details of the reform look like? That can certainly be discussed, but the principle must not be missed: we need to anchor the dynamic of the worldviews that exist in society, and prevent the tyranny that harmed us through cunning.
Interesting.
What I find amusing about the current dispute is that this time the right is reformist and the left is conservative. The method has been reversed.