Note: This is not intended to take sides as to the issue of judicial reform, but merely to refer to the Talmud’s daily daf to bring encouragement to those concerned about the future of democracy in Israel, and what can still be done to strengthen it.
There is no need to belabor the point that the country of Israel seems closer to civil war, G-d forbid, than at any time since the Altalena Affair of 1948, when Jews followed the orders of Israel’s liberal founding and long-time Prime Minister, David Ben Gurion, and intentionally shot at Irgun Jews – including at the ship bearing Israel’s future Prime Minister, Menachem Begin – on the grounds that members of the Irgun were perceived as a threat to the Ben Gurion government and therefore to democracy itself.
Actually, this might be a good time to note that, many years later, on the eve of the Six-Day War, Menachem Begin, then the leader of the opposition, joined a delegation to visit the by-then-retired Ben Gurion, to ask him to return and accept the premiership again, for the good of the country, prompting Ben Gurion to comment that had he known Begin at the time of the Altalena the way he knew him at the time Begin participated in this delegation, “the face of history would have been different.”
One would think that the last place to seek advice on how to avert a civil war would be in the Talmudic Tractate of Gittin, focusing on the laws of divorce, where spouses failed to reconcile their disputes. Spouses, after all, are closer to each other than fellow soldiers or citizens from different political parties, and if spouses can’t reconcile their differences, what can we possibly learn from a study of their writs of divorce?
Nevertheless, Jews all over the world will find inspirational guidance in Tractate Gittin, daf 81a, this Shabbat.
Very often, where there is smoke, there is fire, and when there are rumors, there are often grounds for divorce. Nevertheless, courts were always encouraged to investigate “voices,” or rumors, to ascertain whether they were justified, and if they were not justified, they could be officially quashed by the court, so that spouses could remain happily married.
The city of Neharda’ah was one of the leading cities in Babylonia in Talmudic times, and Rashi says that in this important city, the judges did not have a custom or routine procedure of quashing rumors (presumably without fully investigating their validity, doing the research and checking out the facts), because of concern that there would be a suspicion that if they were to quash rumors as a matter of course and based on a presumption of proper behavior, they could or would get the reputation of covering up other people’s sins.
The point Rashi made was that the judges of the jurisdiction must be trusted and must be beyond reproach for society to continue. If judges and the judiciary are perceived as crooked, the rule of law cannot stand, and we cannot stand for it – or march for it – or demonstrate for it.
In Israel today, it is possible that even many people on the right may concede that many judges on the left may mean well and have good intentions, but the fact that the Supreme Court has been dominated for decades by left-leaning judges with the absolute right to perpetuate their personal and judicial views with new appointments to the court, new colleagues and successors (regardless of the composition of the electorate in the national elections), creates a de facto suspicion that equal justice might be impossible for litigants on the right if the court could continue to be stacked with like-minded judges.
We in America face a similar concern from both sides of the political spectrum with our Supreme Court, but readers should realize that it is not as polarized as many people think. Despite the notorious polarization of the American Supreme Court under Chief Justice Roberts, there have been votes under his reign that were unanimous in favor of “liberal” as well as “conservative” positions, and this court did vote to deny then-President Trump a challenge to the 2020 election brought by attorneys general of more than a dozen states alleging fraud to challenge the election well before January 6.
Nevertheless, there is a distrust in America of judges from opposing political persuasions who are considered not subject to persuasion on many issues. There is still a suspicion (a chashad, to use Rashi’s term) that a stacked court can undermine democracy – whether to the “right” as presently constituted or the “left” if reconstituted with additional judges as proposed.
The ironies are astounding. “Everyone” seems to argue in principle that the ideal situation is to rule by coalition, with give and take by extremists to achieve something close to a consensus. Yet legislators on the left are lecturing legislators of the right not to impose their views with a slim majority of four Knesset members above 50% when this is precisely what the legislators of the left did even when they had a slimmer majority of one Knesset member above 50%. It is even more ironic when a representative of the United States can lecture Israel about carrying out internal policies with “the slimmest majority” when the governing coalition in Israel now has four votes above the needed 60 while the United States in recent years had zero votes above the needed majority in the Senate and had to rely on the Vice-President to break a tie on major legislation on the budget and future of the country. But enough for the ironies.
We can also learn a lesson from the language of the Talmud that even the rabbis in the Talmud probably did not intend, despite all their brilliance and foresight. The Talmud discusses the dangers of quashing rumors with too heavy a hand, but the word for rumor in the Talmud is “kallah” or “kol,” or, literally, “voice.” In modern Hebrew a vote is also referred to as a kol, literally a voice. So perhaps an unintended lesson from the page of the Talmud studied this Shabbat is that we must consider every voter, every vote, whether in the majority or in the minority, even if we may not “need” the vote in the coalition. A consensus must be sought, or at least a modification of the extreme point of view to consider the minority point of view. That is why before passing the “reasonable” law, the “right wing” parties met with the “left wing” parties under the auspices of the nominally apolitical president of Israel, and then passed a law that fell far short of what the members of the right actually advocated, though more may yet to come.
Can Israel really rely on subjective reasonableness when many of the advocates of rule by subjective reasonableness now regularly block roads in mass demonstrations, intentionally preventing ambulances, doctors, and patients from getting to hospitals, clinics, and health care workers; preventing health care workers from getting to invalids; preventing soldiers from getting to their units – and even serving in them? This is not to even mention the political and economic consequences of the demonstrations – all of which could of course be conducted “reasonably” (note the irony) without such terrible collateral consequences.
Truthfully, disarming judges of the weapon of subjective reasonableness may have very little effect, far short of ending democracy as we know it, since there is no limit to the ingenuity of the Yiddishe cup even of those who may despise Yiddishkeit and all that it stands for. It has been pointed out that judges on Israel’s Supreme Court will still be able to use arguments like “proportionality” to support many of their decisions, so that the loss of the “reasonableness” weapon is of relatively minimal consequence, and certainly not the end of democracy.
Compromise must be the order of the day, and not blackmail by a minority, no matter how many people can advocate on its behalf, and no matter how much mayhem they may be able to create, in lieu of more traditional blackmail, or a more traditional democratic vote.
In the long term, public schools and law schools must be taught by jurists and educators on both sides of the spectrum, and especially in the middle, with balanced textbooks, so that some system can be arrived at so that our leaders and judges of the future will be above reproach, like the judges of Neharda’ah.
In the United States, allegations have recently been made that Supreme Court judges on the right and on the left have benefited personally within the letter of the law because the ethical rules for Supreme Court judges are looser than for all other federal judges. This is the opposite of what common sense – and Rashi – would seem to say, and what society should be demanding. Where is Rashi’s chashad? The suspicions? The solutions?
This is without even getting into the alleged cover-ups of politicians outside of the judiciary.
The bottom line: People who believe they are saving democracy by participating in demonstrations deserve praise – unless they are doing it only for the money (purportedly 1,000 NIS for a day’s “work”) – but the spirit of Rashi would encourage the demonstrators – and people who influence them – to always think of the repercussions: in this case depriving many people of the right to make money the old fashioned way, by hard work, and adversely impacting hundreds of thousands of lives in countless additional ways for hours at a time, each rally that involves intentional roadblocks, not to mention, again, the other devastating repercussions summarized above.
Let us encourage our politicians and judges to turn to the Talmud for advice, and to figure out ways to return the judiciary to a position of being above reproach, so that our society, in Israel and in America, will continue to shine as beacons of democracy, and so that Israelis will not try to undermine their nation, but so that they may help Israel to resume its place, once again, as a light unto the nations.