Question

Hello Rabbi,
What do you think about this speech:
The full speech of Justice Minister Ayelet Shaked from the Israel Bar Association conference:
 
There are words that were written in their time so precisely and so elegantly that even the years that have passed since they were first published do not diminish their relevance, and time cannot cover them with its shifting sands.
 
Here are some such words:
"Once my colleague President Barak’s opinion was placed before me, I put my hand in his and let him lead me on his path.
 
We climbed mountains whose peaks were crowned with fundamental rights, passed by doctrines, descended into particular legal rules, and throughout our journey justice, truth, fairness, and common sense accompanied us at all times.
 
Toward the end of the journey we boarded a ship and arrived at an island in the middle of the ocean. We disembarked, and on the pier we were greeted by a distinguished-looking man.
‘Welcome,’ the man greeted us warmly.
‘Thank you,’ we replied, and added: ‘We are from Israel, from the Supreme Court of Israel. And who are you, sir?’ we asked.
‘My name is Thomas, Thomas More.’
‘Very pleased. And what is this place where we find ourselves?’ we asked.
‘You are in the state of Utopia,’ the man replied.
‘And what legal system prevails in Utopia? Is it similar to the legal system in Israel?’
Mr. More smiled and replied: ‘I am sorry, but there are deep differences between the two legal systems, and it will take a long time before Israel reaches the level of Utopia. At present you are fighting for your lives, for the existence of the state, for the ability of the Jewish people to conduct communal and national life like all other peoples. The laws of Utopia—in your current situation—are not for you. Not yet. Guard yourselves, do your best, and live.’ Thus spoke the man and said no more. ‘And I awoke, and behold, it was a dream.’
So far the words of Justice Mishael Cheshin of blessed memory in the Supreme Court case on ‘Family Unification’; May 14, 2006.
**
Many praised Justice Cheshin for knowing how to awaken from the legal dream, which deals with the theoretical issue of the right to family and its derivatives, into concrete Israeli reality—the one fighting for its very existence, while the danger of granting citizenship to tens upon tens of thousands of subjects of a hostile entity hovered over it.
 
Had Cheshin not awakened from that ‘dream,’ in his own words, switched sides, and come out against the dominant view of the then-president, Justice Aharon Barak, that view would have found expression in a disastrous ruling, which was thwarted by a single vote.
 
But only a few, too few, sought to examine what that ongoing and general utopian dream was that Cheshin managed to awaken from, and it seems to me that through the paragraphs I have just read to you he asked all of us to try to wake up from it as well.
** 
When it comes to individual rights and fundamental rights, there is nothing like Israel…
The constitutional vision tools that the Israeli legal system developed in the early 1990s are so sophisticated that not only do they know how to identify fundamental rights when those rights exist and are anchored in the Basic Laws, they know how to identify such rights even when they do not exist…
 
They identify fundamental rights even when the legislature, the body entrusted with anchoring rights, decided for its own reasons, and following a long process of deliberation, not to grant them at this stage.
 
But alongside these powers of recognition when it comes to individual rights, the Israeli legal system also has dead zones. Entire areas where it is incapable of recognizing anything.
 
In the Israel of 2017, a state whose constitutional order is a woven fabric of individual rights, with no reference at all in its Basic Laws to its being the nation-state of the Jewish people—Zionism has become the dead zone of the law. Questions related to it are simply irrelevant. National challenges are a legal blind spot which, according to the prevailing conception today, is not supposed to be taken into account, and certainly not to be decisive when weighed against questions concerning the individual.
 
The question of demography and preserving the Jewish majority are classic examples. Israeli case law simply does not see them as values that ought to be weighed. And not only with respect to the famous petition against the Family Unification Law with which I began, which is really a sanitized name for an attempt to create a creeping right of return into the State of Israel by force of judicial rulings.
 
The question of the Jewish majority is irrelevant in any case!
 
It is not relevant when we speak about the infiltrators from Africa who settled in south Tel Aviv and created a city within a city there, while pushing out neighborhood residents, and the response of Israel’s legal system is to strike down (and strike down again) the law that seeks to deal with the phenomenon.
 
It could be that had the idea truly been on the table, yesterday’s ruling would have looked different.
It is also not relevant when a long-term mission such as Judaizing the Galilee, which accompanied us from the very beginning of Zionism, is abandoned in the Kaadan ruling, which many identified upon its publication as ‘post-Zionist’ (and in this connection one may recall the words of Justice Landau), all in the name of protecting a system of individual rights.
 
**
The system of individual rights in Israel is something I regard as almost sacred, but not when it is detached from all context.
 
Not when it detaches itself from Israel’s uniqueness, from our national missions, from our identity, from our history, from our Zionist challenges.
 
Zionism need not continue—and I say here: it also will not continue—to bow its head before a system of individual rights interpreted in a universal way and in a manner that severs it from the chronicles of the Knesset and from the legislative history we all know.
** 
Since the rights revolution, we have stopped seeing ourselves as a community, as a body that although made up of different individuals, has a national worldview and shared aspirations that unite it.
 
We have almost lost the ability to say: ‘we.’
 
Since the constitutional revolution and the thinning interpretation given within it to Israel’s being a Jewish state—an interpretation that turned our national uniqueness into a hollow symbol and an empty vessel—we have been shaped into a system of millions of individuals.
 
All those individuals have first names, but no family names.
 
They grew up here like Adam and Eve: individuals in their own world. Without roots, without community, without a people, without history, and without identity. Water lilies floating rootless on the water.
 
And that is exactly the dream Cheshin asks us to wake up from.
 
A dream in which Israel’s legal system, seeking to adopt a utopian and universal worldview, sanctifies individual rights so extremely, and at the very same time ceases to take part in the struggle for the very existence of the state and for the ability of the Jewish people to live a communal and national life.
**
 
I want to take the bull by the horns and say in the clearest possible way:
 
The problem of Zionism as the dead zone of the Israeli legal system—before it is a legal problem—is first and foremost the product of a moral and political crisis.
 
And therefore, only a moral and political revolution on a scale similar to the one we experienced in the 1990s, one that grants renewed validation to the achievements of Zionism and its core positions from the very beginning, can reverse this troubling trend.
 
The ‘Basic Law: Israel as the Nation-State of the Jewish People,’ which we will pass in the coming Knesset session, does exactly that.
 
It is a comprehensive change. It is a moral and political revolution. It is a new paradigm in relation to everything we have gone through in the last twenty-five years.
 
It is not some legal fine-tuning here or there. It is a call to wake up from the dream. It is an overall conception that restores the principles of the founding generation to the forefront of the legal stage. It moves Zionism and the most basic and deepest foundations of our identity from the dead zone of our legal system to their proper and fitting place—under the central spotlight.
 
It creates a constitutional fabric that includes, alongside individual rights, constitutional national foundations for the State of Israel. It fills the concept of ‘Jewish state’ with exactly those contents that the constitutional revolution emptied out of it.
**
Moreover, it affects the way we understand rights—
 
They will once again become something whose justifications, scope, and proper interpretation can be learned through studying the chronicles of the Knesset—our own contemporary history. We will return to learning them out of our unique history and out of the needs of our existence and identity.
 
They will cease to be something imported here in crates unloaded from ships in the harbor according to specifications set in advance in an unknown way, and according to an order that we, the members of the Knesset of Israel, the representatives of the public in Israel, did not sign.
 
And precisely because of this, their power will grow immeasurably beyond what it has today, after the array of rights went through, by means of judicial rulings, an inflationary process of artificial expansion—which in turn brought about a sharp public devaluation in the very concept of a right.
 
Fundamental rights will once again be something deeply rooted in our unique system.
 
**
The new constitutional structure will enable us, alongside the vigilant preservation of agreed-upon fundamental rights, also to preserve our moral trust—our national heritage.
 
The historical circumstances and the challenges of Zionism still ahead of us will give rights their special color and unique impact.
 
In the new structure, new rights will be established and old ones identified on the basis of the products of the Knesset as a national constituent assembly.
**
The opponents of the Nation-State Law seek to establish that democracy in general, and constitutional democracy in particular, necessarily come together with a certain set of values. Usually those values correspond exactly—surprise, surprise—to the platform of the opponent’s own party.
 
The opponents of the law believe that a Basic Law that highlights our national and Zionist values will make us less democratic.
 
I, by contrast, see the individual rights recognized by the Knesset as absolute truth, and I also see our national and Zionist values as absolute truth.
 
And I have no fear.
 
I know that one truth cannot contradict another truth.
 
Strengthening one truth does not dull the force of another truth.
 
On the contrary.
 
It is precisely the attempt to undermine our democratic system whenever it does not accord with somebody’s values;
precisely the willingness to give it up when it is too national, or too Zionist, in the critic’s view—that is what saws off the branch on which the most important rights we have attained to this day are sitting;
for no one disputes the core existence of rights, but the justification for rights—in terms of their scope, their force, and the way they are shaped—lies precisely in their being deeply rooted in our unique system.
 
Their integration within the fabric of our rules and traditions, and not the abstract existence of rights as such, is what gives them their source of strength.
They once again justify themselves because the Knesset in Israel and our democracy chose to recognize them.
 
Our choice of rights, our shaping of them when done in the Israeli context and out of awareness of the full range of national and Zionist challenges—those are what sanctify them.
**
 
Cheshin succeeded in waking the majority opinion in the Supreme Court from a dream about universal rights; he succeeded in making clear that abstract rights detached from the Israeli context and from the implications that follow from such a move may be suitable perhaps for life on a lonely island in the ocean, but not for Israel, which is struggling for its very existence in one of the toughest and most challenging neighborhoods in the world.
 
But one moment later the system sank back into a deceptive slumber of dreams.
 
Once universality was defined as the goal—even if distant and not yet its time—it became difficult for the legal system to hold the line and explain to itself why the time had not yet come, and so it hurried down the road toward the desired goal.
 
For me—and here I differ from Cheshin—the aspiration for a universal political order that ignores the uniqueness of the Israeli case is not perceived at all as a utopia.
 
My aspiration is to see Israel as a strong and flourishing nation-state that fulfills its promise of the existence and success of the Jewish people, and alongside that actually grants all those individual rights to which it committed itself in the Declaration of Independence, the greatest founding document of our nation—to all its citizens: Jews, Druze, Muslims, Christians, and Circassians. And regarding this obligation of ours, of course, there is not—and cannot be—any political dispute.
 
That is my aspiration, and the truth is that I believe it is an entirely realistic aspiration.
 
And I have no doubt it will be realized.
 
And if you will it, it is no utopia.
 
**
 
Thank you, and a good year.