How strange it is to see the leaders of the United Kibbutz Movement rush to the chairman of the Labor Party, Benjamin Ben-Eliezer, and ask him to arrange a meeting for them with the Mizrahi Democratic Rainbow in order to find a "compromise" to what has been presented, somewhat misleadingly, as a dispute over land. Any other sector, had it tried to circumvent the High Court of Justice, would have been harshly denounced. But in any case, the Rainbow is not the address for after-the-fact changes: The court ruled that the Israel Lands Administration would deal with the matter. It, together with the Knesset, will have to formulate a new lands policy.
It would require a great deal of optimism to believe that the court's ruling will in fact produce a policy, rather than ambushes and twisted legislation. The battle over the land did not end last week; it simply moved into a new phase. But already, five years after it started, it has racked up two significant achievements. The first is a change in the public discourse. The second, which derives from the first, is the change in the High Court's stance on distributive justice.
One could produce volumes full of sociological and other studies on the change in the public discourse. It is hard to determine which factors played a central role in this change and what led to what - the collapse of the national ethos of redeeming the land; the weakening of the state's republican structures and the creation of a multicultural (or riven) communal society; the dismantling of the welfare state and the strengthening of the discourse of rights, particularly individual rights; the collapse of the Labor movement and the growing power of Shas; and more. All of these factors enabled the founders of the Democratic Rainbow to open a dialogue on the state's lands policy and on equality in the allocation of resources.
Jurist Dr. Sandy Keidar, pedagogue Dr. Yossi Dahan and political scientist Dr. Yitzhak Sapporta - who did not miss a single Knesset meeting, a single conference or a single session of the various committees established by the government - succeeded, together with other colleagues (who wrote, held discussions and identified themselves in the media as Keshet members until their other occupations were forgotten), in smashing the hard rock of the old terminology and moving the new language of equality into the public arena.
This process aroused passions, and was accompanied by expressions of anger and hatred from all sides, but it also established the Mizrahi public - the immigrants of the 1950s and 1960s, the residents of the development towns and the public housing projects - in a new position, as legitimate and powerful players at the heart of Israeli society.
The second achievement occurred within the High Court. While the court has led a constitutional revolution on the issue of human dignity and liberty and all the individual rights that flow from this, Supreme Court President Aharon Barak and his colleagues had previously preferred to leave the job of determining social rights in a Basic Law to the Knesset.
To Barak's credit, it must be stated that he has also undergone a process of change. At first he claimed that the Basic Law on Human Dignity and Liberty also covered social rights. Later, when his critics charged that, like all liberals, he likes legislation that determines what constitutes a violation of individual rights but avoids legislation that would determine what the state is required to give the individual in the context of a concept of its fundamental responsibilities - he claimed that "certain aspects of these rights can be derived from the constitutional right of human dignity." However, he added, "it would be appropriate for the Knesset, as the constituent authority, to give social rights the status of explicit constitutional basic rights."
But in using that term so hated by liberal economists, "distributive justice," the justices signaled that they are attentive to the new public discourse led by the Rainbow. Thus the court, for the first time, was transformed from the pillar of fire that precedes the camp into the modest judge who follows the herd and listens to its bleating. If this is not a constitutional revolution, it is hard to imagine what is.
It is true that Justice Theodor Or, who used the term "distributive justice" in his ruling on the lands case, in 1999 rejected a petition by Shohrei Gilat (an association for special education) on the grounds that "the right to education does not derive from human dignity." But now it is clear that the definition of distributive justice requires expansion. If land must be distributed equally, why not education, housing, welfare, health, social security and the other social rights that Barak himself mentioned in the introduction to his book Bnei Svara ("Children of Reason")? Their ruling in the lands case leaves the justices no choice but to finish the work. Distributive justice cannot continue to apply only to land.
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