On the Voice of the Masses and the Silence of the Law

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This week masses of people went out to demonstrate in the city square against the decision of the State Prosecutor's Office and the attorney general. The voice of the masses, which in the past was directed against legal decisions that decided on weighty ideological, social and cultural controversies, was directed this time against a decision at the very heart of professional legal territory. What inflamed the public discourse? What is impelling the vast majority to reject the plea bargain?

One of the central functions of the judicial process is to provide meaning to a factual occurrence. The naked truth is chaotic, complex, with many layers and meanings. There is a need for a mediating, explanatory factor to translate an unruly collection of controversial facts into an orderly and consistent narrative. The more important the issue under discussion and the more polarized the debate surrounding it, the greater the need for an organized and logical narrative.

That is the case with the issue before us: Is the former president an amiable popular leader, or a serial rapist? The law is supposed to serve as the arena for decision. Not only in order to punish or to acquit every accused person as he deserves, but also to enable the creation of a public narrative "truth," by the light of which individual awareness will be shaped and collective awareness will be consolidated.

The unique quality of the judicial process lies in the fact that it operates according to fixed rules of the game, known in advance, which reflect cumulative human experience. The formal rules include the legal procedures, the rules of evidence and the statutes of limitations. The judicial process, in whose context each of the parties gets his day in court, is always staged in the light of these rules of the game. Preserving them is crucial for granting credibility to the interpretative work of the judge, which translates the factual Rashomon into a "true" narrative. The public is willing to accept the narrative related by the verdict as the bottom and authoritative line, because the rules of the game make it clear that the process has been cleansed of personal whims, biases based on personal interests, or cultural preferences.

The judicial process has a liberating value. Just as the theater tries to achieve catharsis among the spectators, so does the authoritative judicial story bring about a purifying psychological process of internal cleansing among the citizens. When the true story comes out, public order is restored, the distinction between good and evil is sharpened, and there is a rehabilitation of the citizens' confidence in the fundamental ethical distinctions according to which they lead their lives.

Therefore, when the attorney general refrained from bringing the saga of the resigning president to the point of complete and authoritative judicial clarification, he denied Israeli citizens the process of purification that they wanted to experience. The intensity of the opposition and the protest, which was focused on the attorney general, stems from the fact that the drama was constructed over the course of a long year - by the police and the Prosecutor's Office among others, under the guidance of the attorney general - and we were told wildly contradictory stories: on the one hand, serious sex crimes; on the other, a terrible blood libel.

We should not be surprised at the masses in the city square who claimed: "Justice was not done." The plea bargain does not satisfy public opinion, because it did not enable the composition of the full and authoritative judicial narrative of the sensitive affair. The experience was not processed; order was not restored; the catharsis did not take place.

Underlying the essence of the law is an insoluble tragedy: On the one hand, the judicial decision can serve as an affirmative and purifying experience only if it is a result of a process that strictly enforces the rules of the game, and therefore creates credibility. On the other hand, as Aristotle explained, because the rules are cut and dried they are inflexible, and therefore they are liable to create injustices in private cases. In other words, the law accumulates public credit because it abides by the formal rules, but it loses credit in private cases that cannot be solved through the regular framework.

Two opposite examples will clarify the intensity of the tragedy:

King Solomon was asked to divide two babies, a live one and a dead one, between two women. Formal rules were not applicable to solving the problem. Solomon decided to operate outside the rules. He ordered "Cut the living child into two," and thus succeeded in discovering the truth: The woman who had pity on the baby "is his mother." The baby was restored to the bosom of his birth mother and the true story was exposed.

However, what should be done by a flesh-and-blood contemporary judge, who was not appointed by the superior power but by the Judicial Selection Committee? Justice Dalia Dorner, sitting on a panel of the District Court that discussed the case of John Demjanjuk, was convinced that the accused before her was Ivan the Terrible, the murderer from the extermination camp, and sentenced him to death. In the petition to the High Court of Justice, new evidence was presented, which aroused doubt regarding the accuracy of the identification. The verdict was overturned and Demjanjuk was released.

Justice Dorner thought the new evidence was not true, although there was no doubt in her mind that according to the rules the evidence was submissible. Thus a contradiction arose between the justice's clear personal feeling and the outcome required according to the legal rules. In response to the question as to how she would have behaved had she sat on the High Court panel, Dorner replied without hesitation: A private feeling is not a reason for conviction. I would have released the person whom I believe to be Ivan the Terrible, because according to the legal rules this terrible outcome is the required one.

The attorney general and the State Prosecutor's Office cannot operate outside the rules, like King Solomon. If in their professional judgment, implementing the laws of evidence and the statutes of limitations give rise to a case in which it will be difficult to convict the president of the country, they are forced to operate according to the rules, even if the outcome seems to them and to the public like an egregious injustice, and even if by doing so they arouse great surprise about the way they have worked during the past year. If they don't do that, but rather obey the voice of the masses, they will disarm the law of its main weapon: authoritativeness and credibility.

Alongside authoritative legal justice, there is also a broad, popular concept of justice as an intuitive-moral issue. Both types of justice have complementary advantages and disadvantages: Legal justice suffers from a lack of flexibility, and therefore it occasionally leaves us, as in the case of the president, with a sense of injustice and moral deficiency. On the other hand, intuitive justice suffers from a surfeit of flexibility. Moral intuition, as we know, is an evasive thing that is vulnerable to the manipulation of interested parties, passing fashions and personal cultural preferences. That is why mutual criticism is important: Formal justice balances the shortcomings of intuitive justice by handing down binding rules for legal convictions. And the opposite: Intuitive justice, even if it is not carried out by means of a judicial decision, has its say in the city square.

Those who are disappointed by the silence of the law should recall that the law is not the only arena for social improvement. It is not even the primary one. Thousands of men and women uttered a pained cry for protection against sexual harassment. Today it is clear to everyone that when a woman does not say "yes" she is shouting, even by her silence, a thundering "no." Women are no longer objects. Anyone who treats them like ornaments for his own use is unquestionably "bad." The narrative about what is permissible and impermissible in relationships between men and women is repeatedly told, repeatedly clarified. The courage of the complainants was not wasted due to the silence of the law; it aroused the voice of the masses, which is the most solid foundation of all for correcting the situation.

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