The justice of moral values

The decision by the international court at The Hague, the decision by the High Court of Justice in Israel regarding the separation fence, and the expected High Court decision on the appeal against Attorney General Menachem Mazuz's decision not to file charges against the prime minister have a common denominator: In all three cases, we find the question of the public interest in placing issues of morality and values at the center of the legal discussion. All the legal issues that are of importance to the life of the society are not only technical matters but are closely associated with ethics, philosophy and the social sciences. The legal system exists not only in order to make it possible for the society to function but also to preserve public morality. A jurist worthy of the name who serves in a senior public post adheres to norms and values even when both the government and the majority of the society hold them in contempt.

It's difficult to know whether Mazuz espouses the ruinous view according to which norms can be isolated from facts, or that the facts can be emptied of their moral content, or whether he doesn't yet grasp the special quality that goes with the position he holds. The fact is that the attorney general is not just one more attorney in the government service; he is the public's representative in the unrelenting battle against corruption. And corruption, as everyone knows, is spreading before our eyes like a lethal disease. This state of affairs calls for a drastic change in the forgiving approach of the establishment that became dominant in the past decade thanks to Mazuz's predecessor as attorney general, Elyakim Rubinstein, now a Supreme Court justice. The truth is that only the knowledge that the state prosecution is headed by a tough person with a broad view of his job and who is driven by a sense of social mission is today capable of exercising deterrence and ensuring the necessary degree of public integrity without which the foundations of democracy crumble.

Therefore, it is now clear that the High Court of Justice can no longer make do with its traditional approach to the attorney general. The court's intervention is essential not only in cases of decisions that are marked by extreme unreasonableness. That definition is identical to an evasion of responsibility. The High Court must intervene when the office of the attorney general makes a decision that is normatively destructive, even if it is not a decision of extreme unreasonableness in the formal sense. The High Court of Justice has many unique roles, and one of them is to oversee closely the general prosecution, because only the High Court - not public opinion and not the Knesset - is today capable of imposing a tough normative system on the attorney general.

The question of the worthy norms for a civilized society was also at the center of the decision by the court in The Hague. The principle that was laid down is correct: The world society, in which human interdependence is constantly growing, like any local society, needs values that will obligate the authorities as such. Accordingly, the decision at The Hague constitutes a small but important step on the road to limiting the power of the sovereign state. Just as social life is based on the principle that not every person can be a judge unto himself, so in international life the approach that not every state can act as it wishes is gathering momentum. Power can create facts but it cannot create norms, and since facts possess moral meaning, the possibility of retraction must exist: There are no more irreversible situations. It is clear that limiting the sovereignty of states serves the freedom of the individual and individual rights. The concept that the protection of minorities against suppression in its various forms is part of the obligations of the international community is beginning to take root. The way a state treats its citizens or its neighbors will no longer be solely its own affair.

In the Israeli context, the judgment would assume greater moral validity if it were stated more vociferously and more emphatically that the Israeli-Palestinian conflict is not the only one in the world and that the West Bank is not the only locus of misery on earth. Israel's right to defend itself against terrorism must be as self-evident as the right of every person and every country to self-defense. Unfortunately, however, the court did not hear about the brilliant invention by Justice Rubinstein, according to which the territories are "controversial." Indeed, outside the Likud Central Committee there is no dispute over the status of the territories that were conquered in 1967. That is also the view of the majority of the Israelis and with them the majority of people of common sense everywhere: Israel has the right to build a wall in its territory but not to annex territories that are not in its possession. That's why we should welcome the two rulings about the wall, by the High Court and by the international court, which are based on values in order to provide for a change of facts. Now we have to wait for the judgment on the Mazuz case in order to discover whether in this case, too, the normative approach will have the upper hand or whether formalism will win the day.