The Tal Law
The mindset of this court, regardless of who presides over it, is still extra-activist.
Israel's Supreme Court in J'lem [file] Photo: Reuters
On the face of it, the principle of equality before the law triumphed
spectacularly when the High Court of Justice ruled on Tuesday against extending
the Tal Law, which allowed exemptions from military service for haredi men under
the guise of encouraging them to enlist.
This decade-old legal oxymoron
was deemed unconstitutional by six of the nine justices on the
Nonetheless, the crows of victory from a host of civil liberties
lobbies and much of the general public are patently premature. Likewise, the
wails of indignation from religious politicians are exaggerated and geared to
exploit anew an old pretext for rallying the party faithful.
when the Tal Law expires, IDF recruitment bases are unlikely to be inundated by
thousands of yeshiva students flocking dutifully in response to draft
That’s hardly desirable but is an undeniable fact of
life. Too many vested interests and ingrained social patterns dispose the
High Court’s ostensible objectives to failure. Many of the exemptions for
presumed yeshiva students are bogus because a sizable portion of them aren’t
scholars and yet are indoctrinated to reject military service.
the rabbinical and political establishments reinforce their hold on the
ultra-Orthodox sector by discouraging contacts with the rest of society.
Stultifying conservatism would be undermined by breaking the separatist
Odds are that the High Court ruling, which many of us rightly
endorse, will rebound in a regressive backlash just when welcome buds of
integration and increasing enlistment begin to sprout. They may be too few, too
late, and confrontation will harden and radicalize positions. The borderline
Orthodox may well be sucked into more extreme circles once the battle lines are
The Tal Law was born under Ariel Sharon, later the progenitor of
Kadima, which now decries his law’s essence. Binyamin Netanyahu will have
to buy time by promising a substitute for the soon-to-be-defunct legislation.
That is next to a mission-impossible as it means sewing another intricate
patchwork quilt that promises everything to everybody yet delivers little, if
anything, to anyone. It’s uncertain that Netanyahu can – or will be allowed to –
manage the sleight of hand that Sharon achieved in his day.
Netanyahu has no choice but to give it a shot because politics, as per John
Kenneth Galbraith, “consists in choosing between the disastrous and the
The Tal Law is categorically unpalatable, but leaving a
gaping void in its place may be disastrous. Social dynamics suffer no
The Tal Law is a flawed construct of inherently contradictory
declarations of intent. It was a façade claiming to uphold egalitarianism, while
in fact it was designed to facilitate the precise reverse. But that, fair or
not, is the nature of political compromise. Rather than advance given goals,
compromises tend to paper over differences to preserve the status quo and allow
modified violations of stated aims.
The High Court didn’t shock us with
radical discoveries of truths that had eluded us. It was no secret that
arrangements such as the Tal Law are never what they’re presented as, but –
imperfect as they doubtlessly are – they’re often indispensable in preventing
That said, our judiciary is hardly likely to consider
incontrovertible realities. Indeed, it’s unrealistic to expect an overnight
shift in the Supreme Court once Justice Asher Dan Grunis succeeds Dorit Beinisch
as its president.
Significantly, Grunis remained isolated in his
nonconformist opinion on the limits of judicial interference. He argued
that when the majority offers perks to a minority, it’s not the task of the
court to annul them. The court’s objective should be to protect
minorities from majority hardheartedness. The rest is up to electoral
But Grunis’s noninterventionist predilections weren’t echoed
even by the two other dissenting justices on Tuesday. The mindset of this
court, regardless of who presides over it, is still extra-activist.
leaves us wondering, though, whether its activism would be directed with equal
zeal at the draft exemptions accorded Israeli Arabs (who even refuse civil
service in their own communities) and at the egregious draft-dodging by segments
of secular, urban, upwardly mobile society.