The courts override law and the nation-state law are anti-democratic, anti-Jewish and anti-Zionist and must be forcefully opposed before Israel becomes Putin’s Russia or Erdogan’s Turkey.
By TSVI BISKUpdated: JUNE 14, 2018 21:23The Knesset building(photo credit: MARC ISRAEL SELLEM)
The present campaign to override Supreme Court decisions which negate laws that violate human rights is being made in the name of democracy, Jewish identity, and Zionist polices. But it is really an affront to all three.The courts override law and the nation-state law are anti-democratic, anti-Jewish and anti-Zionist and must be forcefully opposed before Israel becomes Putin’s Russia or Erdogan’s Turkey.In common usage in the West, democracy refers to constitutional democracy.Israel is a democracy governed by the principles of constitutionalism.Constitutionalism is Western civilization’s contribution to the preservation of human dignity. Constitutionalism is an “ism”: an ideology that acknowledges that human individuals have certain unalienable rights that cannot be obviated by any monarch, dictator or majority. It limits the power of the sovereign vis-àvis those unalienable rights.The sovereign in England is the monarch – thus the term ‘constitutional monarchy.’ The people (the demos) are the sovereign in Israel – thus the term ‘constitutional democracy.’ The attack on the autonomy of Israel’s courts is justified as being a campaign against unelected officials (judges) who limit the power of elected officials (the Knesset) who represent the people.This is a view of “the people” as an undifferentiated mass, not as an aggregate of autonomous persons with unalienable rights. In political philosophy, this view is known as majoritarian democracy, the opposite of constitutional democracy.Constitutional democracies guarantee majority rule and minority rights. Majoritarian democracies do not.An example of majoritarian democracy would be the Jim Crow South in the US – what Israel would ultimately become with the implementation of the override law and the passing of the nation state law. Majoritarian democracies lead to totalitarian democracies which control over every aspect of human life, including media, education, culture, economy, religion and more. Examples of totalitarian democracies are Hitler’s Germany (power achieved through democratic mechanisms) and Castro’s Cuba (supported by a majority of Cubans).The Founding Fathers of the United States were afraid of three things: the tyranny of the majority, popular enthusiasms and abuse of power. They believed the majority had the potential to be more tyrannical than a dictator, and that temporary enthusiasms could turn a majority into a mob and hence result in a majoritarian abuse of power.
America, and subsequent constitutional democracies (including Israel), established institutions that limited the will of the majority from inflicting injury on minorities or individuals.The unelected courts are the institution tasked with limiting the power of elected officials – to limit the absolutist power of the people in the same way that English constitutional institutions limit the absolutist power of the monarch.Freedom of the press was also enshrined in order to help uncover wrongdoing on the part of elected officials and civil servants. Weakening the power of the courts and undermining the media are proven ways to erode constitutional democracy.Putin and Erdogan are prototypes for this tactic.But this is a Jewish state and as the rabbis tell us, God is not democratic. He is an absolute ruler. But God is also a bit of a constitutionalist.If every human being is descended from Adam and Eve and thus equal in the eyes of God, then certainly every human being must be equal in the eyes of human law. Over the years, non-Jews fighting for justice have often employed this argument. The leaders of the Peasants’ Revolt in 14th-century England used it when demanding equal rights.THE SAGES asked themselves why God gave the covenant to Abraham and not to Noah.Their answer they gave was: God comes to Noah and tells him he is about to exterminate the entire human race except for Noah’s family.Noah does not argue with God and goes and builds the Ark. God tells Abraham he is going to destroy two debauched cities and Abraham argues with God.By daring to argue with God, Abraham demonstrates he has accepted full responsibility as an autonomous human being. The argument is the first historical example of an individual challenging supreme authority. Needless to say, the freedom to challenge authority is the very essence of democratic constitutionalism.In the same vein, Moses disputes with God regarding His threat to exterminate the Israelites because of the Golden Calf, and persuades Him to give the Israelites a second chance.This principle of limiting the power of the supreme sovereign finds wonderful expression in the Talmudic tale of a bat kol (a voice from heaven). When a rabbinic quorum rejects God’s interference in their deliberations, the voice says: “As the Torah has been given from Mount Sinai, we take no heed of a bat kol.” The constitutionalist fear of the mindless majoritarian herd trampling rights was also anticipated in Exodus 23:2: “You are not to follow the majority in doing wrong.”God also affirms the rights of non-Jews: “But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt.” In the Talmud, God chastises the angels for celebrating the drowning of the Egyptians: “How dare you sing for joy when my creatures are dying?” Jabotinsky declared “every man a king”; every man, not every Jew. He advocated full equality for Arabs: for every Jewish Minister an Arab vice minister – and vice versa. He championed parity for Arabic with Hebrew: every governmental document was to be written in both languages.Herzl’s futurist novel, The Old-New Land, depicted equal rights for Arab citizens.The Balfour Declaration conditioned its support for a Jewish homeland on equal rights for the Arabs.A.D. Gordon described socialist Zionism as “Ha’adam ba’mercaz” (humanity is central); not only the Jew.Berl Katznelson pronounced socialist Zionism “the upliftment of man,” man per se not only the Jew. And although Ben-Gurion did not write the Declaration of Independence he surely approved every word which included: “Israel... will foster the development of the country for the benefit of all its inhabitants... it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”The writer is director of the Center for Strategic Futurist Thinking.