Our clash of civilizations

Legal StudiesMishpat Vetarbut Beyisrael Befetah Hame'ah Ha-21 (Law and Culture in Israel at the Start of the 21st Century), by Menachem MautnerAm Oved Publishing, 519 pages, NIS 119

Menachem Mautner's defining contribution in this comprehensive book is his success in casting a new, more accurate light on the bitter public battle between the legal system and the political establishment. This is not just a battle for power and authority; it is also, mainly, a critical stage in the culture war being fought over the moral character of the Jewish people and its state.

Despite the impression one might have from the prevalent political-demagogic rhetoric, neither Supreme Court President Dorit Beinisch nor her predecessor, Aharon Barak, initiated this culture war. Its initial stirrings preceded the state's founding, and preceded even Zionism. Mautner, a professor of law at Tel Aviv University and one of the outgoing justice minister's nominees for the Supreme Court, writes that as early as 200 years ago, when Jews were first exposed to the ideas espoused by the European Enlightenment, a cultural divide opened up between those who sought to adopt its Western values and those who were determined to remain entrenched within the bounds of halakha (Jewish law) and to preserve the old order. With the establishment of the state and in its early decades, it appeared that the victory of enlightened values and liberalism was no longer in doubt, yet over the past few decades, it has become clear that the struggle over Israel's cultural and normative character is far from having been decided.

The involvement of the legal system, most notably the Supreme Court, in this culture war is not a new development (whether the court is functioning as the final court of appeal or as the High Court of Justice, in which it serves as a court of first instance in cases related to administrative action or civil liberties). The philosophy stating that the Supreme Court is entitled, perhaps even required, to take a clear side in the war and promote the values of "an enlightened public" had already found expression decades ago, when Barak was just starting out as an unknown professor of commercial law.

It was none other than former justice Moshe Landau - today one of the fiercest critics of Barak's "constitutional revolution" - who as early as 1962 posited that the Supreme Court must express "the accepted views of the enlightened public." The late Supreme Court justice Haim Cohen maintained that the High Court of Justice must advance the principles that are accepted in "enlightened and civilized" countries. In the 1960s, then-justice Shimon Agranat (later the court's president) wrote that he and his colleagues were required to enforce only those values that were perceived as proper and just among "members of an enlightened society."

The essential difference between the court during the Landau, Agranat and Cohen era, and that of Barak and Beinisch, lies not in its impassioned mobilization to take up the cause of the liberal camp in the culture war, but rather in that the mobilization of recent years has been taking place more publicly and in a more pronounced fashion than before. One could say the court's standing within the liberal camp has been dramatically enhanced to the level of an elite fighting unit, one whose function is crucial in determining the outcome of the culture war.

Mautner explains that in this generation, the country's liberal forces have lost their longstanding hegemony over the political scene. This has left them with no alternative other than relocating their final battle over values to the judicial arena. As a result, the High Court of Justice has unwittingly, and to its detriment, turned into the main - perhaps last - line of defense for these values, and it is its judges who man the turrets, exposed to the battle.

Defeat of the Zionist vision

Those exposed in the turret, of course, attract a great deal of fire. Mautner effectively describes the damage to the court and its judges that has been and continues to be caused by public criticism of the court, but he does not recommend that they abandon the front. On the contrary, Mautner views the "preservation of Israel's liberal-democratic regime" as a "normative commandment of the first degree," since "liberal democracy, which embodies mainstream humanistic values, is the most worthy form of government itself."

Mautner warns that if the liberal camp is defeated in the culture war, it will also be a defeat for the Zionist vision, whose lifeblood is the Western-liberal values that are being fought for in the High Court.In this context, that vision harkens back not only to Theodor Herzl, who championed freedom of religion, freedom from religion and equal rights "to all religious and national groups in the Jewish state," but also to Ze'ev Jabotinsky, whom Mautner refers to as "an ardent liberal" who viewed "all the citizens of the state as equal, irrespective of gender or national affiliation." Indeed, Jabotinsky's final essay, which he wrote in 1941 and which can be viewed as something of an ethical will, was devoted to "civic equality." In it, he demanded that a Jewish state adhere to an arrangement whereby if a prime minister was a Jew, his deputy would be an Arab, and vice versa. It would be easy to guess the amount of mud that would be slung at the High Court today if it dared include such a demand, or even recommendation, in one of its rulings.

Mautner's position is unequivocal: Despite the loss of liberal hegemony over the political scene - and despite (or perhaps because of) the fact that the High Court (aided by the human-rights non-governmental organizations) is the dominant combatant fighting for these values - "it is incumbent on the court to continue to carry out its role as an important agent of the values of liberalism between the institutions of the state and political culture," and "it must not give up on its mission of reinforcing human rights and protecting other liberal values."

Yet, in Mautner's view, the fact that the High Court finds itself at the front lines of the culture war by force of circumstance requires that it conduct itself in a more balanced and calculated manner than in the past, so as to temper the strength of the fire to which it is exposed. In this context, Mautner recommends that judges make efforts to cite principles of halakha and Jewish jurisprudence in their rulings, which would minimize the alienation that the religious Zionists and ultra-Orthodox feel from the court. He also suggests that the judges recognize that Israeli society today is a multicultural one and that they must demonstrate tolerance of the cultural norms of various communities, even if they are foreign and unfamiliar to the Western-liberal eyes of the court.

Mautner himself is aware of the limited utility of his advice, since he is quick to caution the judges against a wholesale, aggressive adoption of his recommendations, which would put them at risk of abandoning crucial values for which the court has fought. He warns, for example, that the judges' reliance on Jewish law is liable to severely harm the concept of equality between all the citizens of the state. He recalls that it was a religiously observant former Supreme Court judge, Moshe Zilberg, who in his time warned of the danger in granting a legal seal of approval to halakha, writing that "we had no moral right to do this, considering the presence of a non-Jewish population." He added that in the areas in which the Israeli legal system has adopted halakhic stances - matrimonial and family law - there is serious inequality not only between Jews and those of other religions, but also between men and women.

Advising judges to adopt a multicultural perspective is even more complicated and risky. As Mautner himself notes, in contrast to minority communities in countries that have successfully adopted a multicultural framework, there are groups of ultra-Orthodox and Arabs (perhaps even settlers) who are not satisfied with demanding cultural autonomy but also seek to change the character of society at large and the country's form of government. He also warns that there is a danger that tolerance toward these various societal communities could lead to judges accepting cultural modes of behavior that infringe on human rights and individual integrity.

Mautner voices particularly strong objections to the acceptance of cultural norms that legitimize harm against women, not just physical harm but also the humiliation and exclusion of women. Despite, for example, his principled view that there ought to be less friction between the court and the religious public, he nonetheless believes society must not under any circumstances accept the exclusion of women from judgeships in the rabbinical courts. Indeed, it is inconceivable that there is nary a protest against a court system that enjoys near-exclusive authority to rule in disputes between husbands and wives while all the judges presiding over these cases are men.

Three-fold contempt

Given the difficult circumstances and the tough reality described by Mautner, is there still a chance that the Supreme Court can win the culture war? Is the court even capable of fomenting a cultural upheaval and instilling liberal-egalitarian norms in a population that rejects them? On the surface, American efforts suggest that this is possible. The 1954 ruling by the U.S. Supreme Court in Brown v. Board of Education, which forbade racial segregation in schools and the exclusion of blacks, dramatically changed the face of American society, mainly (though not only) in the Southern states. In the same region in which a black woman risked her life if she dared sit in a seat reserved for whites only, that woman's son can today be elected mayor, or governor, on the strength of white votes. Indeed, it is highly doubtful whether, without such a precedent-setting court ruling, such a revolution in the American way of life, its education system and media could have come about, including the inauguration earlier this year of the country's first black president.

The American experience also shows that there is one condition that must not be violated if the court is to succeed in fomenting a cultural upheaval: the obligation of the authorities to enforce the court's rulings, even those that may appear to those authorities to be mistaken. The Republican administration that was in power in the United States in 1954 did not like the ban on racial segregation imposed by the Supreme Court, nor was it enamored with some of its other liberal rulings. Dwight D. Eisenhower even said the biggest mistake he made during his presidency was naming Earl Warren chief justice. Yet, he nonetheless sent battalions of officers and soldiers to enforce the Brown ruling and to provide security for the black students who were entering white classrooms.

Authorities in Israel, however, drag their feet when it comes to enforcing liberal legal rulings they don't particularly like, or even scorn. In recent months, there have been three instances in which explicit High Court rulings remained in force on paper only, because the authorities shamelessly refused to implement them. The first was a decision to do away with discrimination in the Education Ministry budget, which gives preference in fund allocation to Jewish municipalities over Arab ones; the second banned the Interior Ministry from revoking foreign workers' visas automatically if their relationship with an employer has ended. Finally, there was a ruling ordering a change in the route of the West Bank separation fence.

And yet, this triple whammy of contempt shown for the Supreme Court has not elicited any protest, not even from those who view themselves as committed to the values for which the court is fighting. Just a few years ago, these supporters protested en masse in Jerusalem's Sacher Park against the outrageous comments made against the High Court by Shas spiritual leader Rabbi Ovadia Yosef and the party's former chairman Aryeh Deri, but such advocates of the court are now apathetic to the state's trampling of court rulings. This indifference raises questions not only about the chances that the High Court of Justice will survive on the front lines of the culture war, but also about the chances that the State of Israel will survive as a properly functioning democracy.

Moshe Negbi is a legal analyst for Israel Radio and a senior lecturer at the Hebrew University of Jerusalem.