On the walls of the Council Hall in the Italian city of Siena there is a series of frescos from the year 1338, depicting the effect of “Good Government.” We see on these frescos a peaceful city characterized by prudence, fortitude and justice.
On the other side of the Council Hall we see a graphic depiction of “Bad Government.” There we are confronted by visions of war, avarice and internal division.
The Council Hall served as the seat of Siena’s legislators and the depictions were to remind them how their actions can affect the lives of their fellow citizens.
Of course, government in action is expressed through legislation – and bad legislation can have completely unintended, disastrous consequences.
People think that the riotous celebrations of Purim are as distant from law and legal matters as can be, but the whole story of Purim would not have come about without quirks of Persian law that sparked the entire crisis for the Jewish people.
The amazing thing is that upon the establishment of the State of Israel, we nearly fell into the trap of replicating these very same laws which, had we done so, would have caused chaos in Israeli society.
The story of Purim is based on Haman’s desire to annihilate the Jewish people, including Esther’s timely intervention that saved us from destruction. This is the central theme, but the real crisis arose when it turned out that the king was unable to repudiate laws that he himself enacted.
The crisis could have been completely avoided had the king voided his previous instructions and made sure that his orders were disseminated throughout the Empire. This would have been peacefully implemented. But he could not do that, because according to the laws of Persia, he was unable to cancel his own edicts. Thus, violence erupted and the Jewish people were forced into a situation where they had to defend themselves.
The Book of Esther is not the only place where there is a reference to this astonishing law where it is not possible to ever review previously legislated laws. For example, in the Book of Daniel there is reference also to the laws of Persia stating that the laws made by the government, i.e. the king, could not be overturned.
It is obvious that the ability of law to adapt to changing circumstance is a must if you want Good Government. Issues, people and circumstances change; the law has to adjust to the realities of real life.
WHEN THE Israel Supreme Court was established in 1948, there was serious talk by eminent jurists that the court would not be able to change its own verdicts. This disastrous idea was shot down fairly quickly, but it was a serious suggestion that was on the table.
Imagine the immobilization of the Supreme Court’s power to effect change. To give just one example, one of the areas where change is slow in coming is the Inheritance Law. It was enacted in 1965, and because of the deadlock in the Knesset between the religious parties and the non-religious parties, it has hardly been changed over the last 50 years – leaving in place some outlandish provisions that are totally out of place in today’s reality. The lack of movement in this law negatively impacts people’s lives every day.
For example, the law states that a person can inherit only if he is born within 300 days of the death of the deceased. Nobody at the time of the enactment of the Inheritance Law could possibly imagine the availability of artificial insemination and sperm banks, which allow people to have children years after their death. Soldiers who have died in war have used these facilities – and their posthumous children’s right to inherit is in doubt.
There were amendments tabled before the Knesset over the years, but nothing has changed due to the political deadlock. In particular, the argument between the religious and non-religious parties as to whether couples of the same sex would be able to inherit one another blocks the reform of the entire law.
Imagine if all laws and court decisions were unchangeable in the same way.
Thankfully, wisdom prevailed, because all our legislators had to do in order to understand how such unchangeability would lead to Bad Government was to look to the Book of Esther and see how a bad law in the kingdom led to a virtual civil war and a bloodbath that could have been completely avoided.
Dr. Haim Katz is senior partner in a law firm based in Tel Aviv and Jerusalem. His son Sam Katz is also a partner in the same firm. Both have written books on inheritance law, family law and real estate, and are active in general civil litigation.