With dialogue and good faith, a clear and distinct process can finally emerge for making constitutional law
Minister Bezalel Smotrich has in the past made a number of statements that were mistaken and inflammatory. Here at the Times of Israel, I was among those condemning his outburst in response to a terrorist attack. I urged that his statement required a forthright, comprehensive and clear apology.
Minister Smotrich has now done this in a remarkable Facebook post. It is self-critical and thoughtful. I believe it contains considerable wisdom that applies to Israeli politics generally. It could, indeed, be the beginning of an important change – here and now – in how the different camps in Israel engage with each other and make progress on abiding problems.
”We don’t talk enough, we don’t listen enough,” Minister Smotrich says. He recognizes that when people speak, they can be reckless with their language and bring great harm to themselves as well as immense hurt to others.
With the judicial reform debate, there are actually tremendous opportunities to improve the overall constitutional situation in Israel.
With dialogue and good faith, there can finally emerge a clear and distinct process – involving special deliberation and breadth of support – for making constitutional law, rather than routine legislation.
If a process for appointing judges can be widely agreed upon as well, the whole enterprise of Israeli constitutionalism – including judicial review – can be put on solid and durable ground. It would be possible to proceed step-by-step, with deliberation and consensus, to add important features to the constitution. These could start with recognizing the individual rights central to democratic governance – including the right to vote, to engage in free expression, to demonstrate. Could not all parties swiftly agree upon that as a first step after the current crisis is resolved?
In accordance with President Herzog’s proposal, the current moment can also be the beginning of a movement to streamline the entire Israeli legal system, so that conflict is avoided or contained initially, and when it arises and resolved constructively whenever possible without judicial intervention. Remaining disputes would then be adjudicated quickly and fairly.
But all of this requires the current government to stop steamrolling forward – to speak more respectfully, to listen more. President Herzog has provided a framework for a constructive discussion, and it should be embraced by all.
Minister Smotrich’s Facebook statement also suggests that Torah values support, not undermine, Israel’s commitment to using its military might with restraint and justice. The Jewish tradition actually made an enormous contribution to secular political enlightenment in the West. The Bible recognized that every human is sacred and inherently equal in dignity, that free expression and dissent are valued, that kings are not infallible or divine, that prophets needed to speak truth to power, that there should be no idolatry of state power or of any particular political ideology.
Traditionalists in Israel can be dismissive of the enormous self-sacrifice and achievements of their secular brethren. But secularists can at times lack humility and respect as well. The jurists who led the “constitutional revolution” in Israel, such as the brilliant Aharon Barak, sometimes exhibited an inadequate understanding of the content and depth of the Jewish tradition and an excessive resistance to finding ways to achieve reconciliation – and indeed mutual support – between Enlightenment and Jewish legal systems. Barak should not have opposed the appointment to the High Court of the late and no less brilliant – but more reconciliationist – Ruth Gavison. There should indeed be philosophical diversity on the Court.
Internecine disputes can be the most bitter. The bible is rife with intrafamily conflict. It also contains supreme moments of reconciliation – Jacob and Esau, Joseph and his brothers.
If people wish to reason together, then some of the toughest issues can potentially be resolved. This means achievement outcomes may sometimes be quiet accommodations rather than legislation that arrives at more legalistic and definitive conclusions.
I believe that the Jewish tradition itself includes the ideas that students and scholars of Torah can engage in other occupations and that everyone is duty-bound to contribute to common responsibilities, including paying taxes and engaging in military or national service. The search for common ground can lead to practical progress on issues like this. Attempts from any one camp to dictate solutions will be worse than futile. I hope the current coalition will not attempt to do so, but rather seek widely-acceptable and practical accommodations.
The current crisis was avoidable and remains fixable. What is desperately needed – immediately – is half a minyan within the governing coalition to publicly demand an end to the high-speed and high-pressure tactics. Then this self-destructive moment can be turned into the beginning of a more respectful and constructive form of politics all around.