Is Israel Above Its Own Laws?
marshall breger

As both a legal academic and a person who cares deeply about Israel, it is very difficult for me to say this—but Israel seems to be structurally lacking in fidelity to the rule of law.

To some extent, this reflects a weakness of the Israeli state, whose inability to enforce its law in the territories—I am not referring to legal settlements here, only to illegal “outposts” and vigilante tactics, such as the burning of Palestinian olive trees—is an open sore.

But equally distressing, the state seems unable to control haredi violence. One can go back to the ’80s and the conflict over Shabbat traffic on the highway connecting the newly built community Ramot to central Jerusalem, or the pitched battles concerning Shabbat traffic and modest dress on Bar-Ilan Street. Today, there are riots over a parking lot open on Shabbat in central Jerusalem. Some haredim in the city of Beit Shemesh even firebombed pizza stores with mixed seating and beat a woman for refusing to move to the back of the bus so as to meet “modesty” standards. Last year, three modern Orthodox teenage girls were pelted with eggs when they wandered into a haredi neighborhood in the city.

In recent years, we have also seen an exponential increase in government corruption. In the last year, both former Finance Minister Abraham Hirschson and former Labor and Welfare Minister Shlomo Benizri have been sentenced to prison terms for bribery. Former Prime Ministers Ariel Sharon and Ehud Olmert and current Prime Minister Benjamin Netanyahu have all been investigated. This August, the police recommended the indictment of Foreign Minister Avigdor Lieberman. Former Ministers Yitzhak Mordechai and Haim Ramon have been convicted for sexual offenses, and former President Moshe Katsav faces trial for similar misbehavior.

Unsurprisingly, the 2009 Corruption Barometer by Transparency International, the respected Berlin-based watchdog, ranked Israel 33rd of the 180 countries surveyed, with 180 being most corrupt. Israel was judged to be more corrupt than Qatar and Cyprus.

This is a far cry from the day when Prime Minister Menachem Begin, on being informed that the Israeli Supreme Court had ordered the dismantling of Elon Moreh, the first of his cherished settlements in Samaria, put his hands over his eyes and uttered the biblical passage, “There are judges in Jerusalem.” Israelis are no longer so deferential to the judgments of the courts.

A great many reasons have been given for Israel’s rule of law deficit. One is that the Labor Zionist founders of the state were not particularly interested in the rule of law but rather in mamlachtiyut, or state building. Their focus was on realpolitik and raison d’etat rather than legality as a value. As recent academic scholarship has made clear, the primary reason Israel never developed a constitution in the early 1950s was that David Ben-Gurion did not want a document that might restrain him from acting “for the good of the state.”

As for the religious, many of the Ashkenazim came from a Europe where the state had been seen as the enemy, to be avoided at best and cheated if need be. Other religious immigrants came from the Middle East and Asia, where baksheesh was part of daily life and where distinctions between the private and public spheres were amorphous. And the settlers, appealing to the higher law of the Torah, believed they served a higher cause. As one religious settler told me some years ago, “The state has left us, and we will, therefore, leave the state.”

Another symptom of the fitful Israeli relationship with the rule of law is the increase in attacks on the Supreme Court as “leftist” and anti-Zionist by many in the religious and nationalist camps. While I agree with many concerns with the judicial activism endemic to the Israeli legal system, the notion that you can simply not obey court decisions with unwanted results is troubling. Unfortunately, this is precisely what is happening more and more in decisions related to the territories, as numerous recent examples attest. It is hard to imagine a federal court in the United States allowing the state to ignore a court order to change the route of the security fence after it was deemed “highly prejudicial” to local residents, as happened in the Palestinian village of Bi’lin.

One of the biggest fears of an Israeli is to be a frier—Yiddish for pushover—a person who is taken advantage of by, among other things, following rules. Unfortunately, far too many Israelis—and their elected officials—equate fidelity to the rule of law with being such a fool.

It is troubling that the Jewish people, who were formed and sustained by a commitment to law, now express their national aspirations in a state that only casually internalizes rule-of-law norms. It is equally troubling that respect for the law has now become associated with secular leftists—just sit in on any rally of the National Union. While there are stalwarts for the rule of law in Likud—such as Deputy Prime Minister Dan Meridor and MK Benny Begin, son of Menachem Begin—for the most part, the responsible Israeli right has failed to lead on this issue.

To the extent that this lack of concern for legality is a structural feature of the Israeli state, it is a problem not only for the integral fiber of Israeli society but also for Israel’s support in the West. After all, the basis of the American-Israel relationship is the belief that both peoples share common values. It is time for American Jews who love Israel to face up to this challenge.

Marshall Breger is a professor of law at the Catholic University of America.