Analysis: The rule of law, but of what law?

In a society like Israel's, it is impossible for the law to embody consensus.

supreme court 298.88 (photo credit: Ariel Jerozolimski [file])
supreme court 298.88
(photo credit: Ariel Jerozolimski [file])
During a speech earlier this week at the Fulbright/USIEF 50th anniversary symposium, Supreme Court President Aharon Barak, who will be retiring later his year, reflected on what he regarded as the key role of the Supreme Court. "Israel is a defensive democracy," he said. "In order to be defensive and still be a democracy, Israel needs judges who believe that the protection of Israel's democracy is their main task. Does all this affect the people's confidence in the judges? I do not know. I do believe, however, that at this stage of our national development, we need judges with a strong commitment to democracy and its protection." According to Barak, it is not only the threat from without, particularly the threat of terrorism, which endangers individual liberties in this country. There is also a threat from within. "One should not forget that a large part of Israel's population immigrated to Israel from the Near East and from Eastern Europe, places where there are no democratic traditions," Barak continued. "Israel lacks a rigid constitutional framework. Basic structures and concepts can be changed by bare majorities. The protection of these structures and concepts requires judges who see their role as protectors of out constitution and democracy." If the court's role is to make sure that the laws approved by the Knesset are just and in keeping with society's allegedly highest and most enduring values, it is the role of the government to make certain that the laws approved by the Knesset are enforced. In more cohesive societies, law enforcement is usually aimed at individual lawbreakers. But in a highly divided society like Israel's, where there is no consensus on fundamental religious, ideological and ethnic issues, it is impossible for the law to embody such a consensus. The events of any ordinary day prove this over and over again. Take Tuesday for example. In Jerusalem District Court, Yishai Schlissel was sentenced to 10 years on charges of attempted murder for having stabbed three people during a Gay Pride parade in Jerusalem. "I came on a mission from God to kill," he said. "There cannot be such an abomination in this country." Meanwhile, haredim rioted and blocked roads in Jerusalem and Tel Aviv after a court of law gave permission to the police to perform an autopsy on a woman to determine the cause of her death. "Every time the corpse is touched causes horrible torment to the soul of the dead," haredi rioters were quoted as saying. At the same time, thousands of settlers and their supporters flocked to the outpost of Amona to resist - in some cases violently - the demolition by the army of nine permanent houses built without permission, without an approved planning scheme and, most likely, on land belonging to others. The facts of the matter are no more than a minor nuisance for the settlers. What matters is that God, himself, has given them the Land of Israel. The Zionist movement and the state of Israel were established on the basis of Western European democratic norms such as majority rule, government by consent and man-made laws. These institutions and laws, and the gradual expansion of the democratic concept to include human rights, is what Israel's ruling establishment means by the rule of law. Today, however, large and significant groups reject this definition. For the haredim, who have grown into an increasingly large minority over the years, it is their definition of the Torah, the oral laws and centuries-old traditions that constitute the rule of law. For an increasing number in the national religious movement, their definition of the Torah, with their emphasis on the holiness of the land and many other strictures, constitutes of the rule of law. These different rules of law are coming into increasing conflict with each other, as Tuesday's incidents indicate. Conversely, the national consensus is shrinking. Aside from the always important security problems and the always important social and economic problems, Israel is on the way to facing a serious Kulturkampf, which may do more than anything else to shape the future of this society.