(photo credit: FREED PHOTOGRAPHY)
One week ago, the Supreme Court issued a judgment on the division of child support between men and women sharing custody. While the law, a relic from the 1950s, demanded that the man pay for much of the support, the court’s decision will make the burden more equal.
The court’s decision belies a greater problem found in the balance between the legislature and the judiciary. There was a clear need to modify the outdated law from the distant past, but the legislature failed to do so. The court’s decision to intervene and essentially bypass the legislature represents a growing phenomenon.
For segments of the public, court intervention in important issues such as adoption by LGBT couples is evidence of an activist judicial system that has overstepped its bounds. What is missed in that discussion is why the court has taken such actions. The narrative that a leftist court is reacting against a right-wing government chosen by the people oversimplifies the issue and misses the major problem that has necessitated that the court make major decisions on value issues. Namely, that the Knesset has failed in its role as a legislature.
The role of the legislative system is to establish the norms, standards and values by which society functions. When the legislature fails to act, a vacuum is created that the court must fill. During the past year we have seen many examples of this phenomenon, such as the law prohibiting fraud in the realm of kashrut certification for restaurants, the status of converts who undergo conversion within a recognized Orthodox community, but outside of the national conversion system, the opening of supermarkets on Shabbat and proper integration into the IDF.
The question we must address then is not why the court has become increasingly interventionist, but why the legislature has failed to address multiple key issues within our society.
I believe that the answer can be discovered at the crossroads between liberalism and conservatism. While the court acts in the spirit of liberalism, guided by the spirit of the Declaration of Independence along with 100 years of Zionist thought as expressed by such luminaries as Jabotinsky, Herzl, Ben-Gurion and Begin, many politicians today prefer a conservative approach based on identity politics instead of humanistic and democratic ones.
The struggle between liberalism and conservatism occurs in all the major political arenas: economics, religion and state, questions of national security and matters of governance, especially as relates to checks and balances. While many may be occupied with questions of Right and Left in the realm of national security, the state hinges equally on the battle between conservatism and liberalism.
Many who claim to be fighting the court in order to increase the government’s sovereignty are in fact doing so in order to protect their conservative views. Perhaps they are unaware that if they succeed in reducing the court’s power, they are also likely to forfeit essential principles such as equality in the eyes of the state for those who lack connections, strengthening traditional values and identities without resorting to a state run by the religious establishment and protection from corruption in public administration.
Those who make attacking the court a “right wing” issue fail to distinguish between the conservative Right and the liberal Right, which promotes the defense of national security in questions of diplomacy while also promoting a free market and increased economic and social equality.
The Kulanu party represents this difference between the extreme Right and the sensible Right. As opposed to the conservative philosophy emerging from the school of the Likud and Bayit Yehudi, for the liberal Right of Begin and Kulanu the State of Israel is a state that, in addition to being Jewish, is also democratic.
The liberal Right understands that traditional values can be protected on major issues such as marriage and conversions without accepting conservative rabbinic position on matters such as the right of adoption for LGBT families. The liberal Right comprehends the value of a Jewish State Bill that clearly defines Israel as the national home of the Jewish People while also knowing that we must anchor our liberal-democratic beliefs as the basic values of that same state.
The reason that the courts must intervene in so many matters that are actually the primary job of the legislature is the fact that we have not yet clearly decided upon the character of the state. The coalition is quiet on many core social and political issues. I think that the role of the sensible Right is to make this distinction. Jewish and democratic, tribal and universal. This is the vision that we are offering.
The author is a member of Knesset from Kulanu.