Opinion

Fetishizing the Law

A view of Israel's High Court of Justice in session, Jerusalem, August 2, 2018
Marc Israel Sellem

Blushing in shame, I have something awkward to admit: There’s more than a little truth in the arguments put forward by the people in the Education Ministry in charge of high school civics studies. The connection between “the rule of law” and “human rights” is indeed very problematic. In fact, it hardly exists.

Overloading the word “law” with too many tasks is a well-known syndrome. Sometimes it approaches total fetishism. As if “law” is the be-all and end-all, and in its sacred clauses can be found an answer to every question. But the law is simply the law. It deals with prohibitions, permissions and proceedings. No less, but also not much more.

“The rule of law” is not a guaranteed recipe for redemption. To be honest, it’s not a guarantee of anything. As formally defined it is no more than a transformation of the monarchy, the priesthood and other arbitrary rulers into a system of open, clear and agreed-upon operating instructions for leading a state. A kind of app for running a large office, whose employees and executives are committed to following it. Apps, as we know, can’t translate abstract values into algorithms.

The concept of “human rights” is an even more complicated creature. It deals with abstract values, with axioms, with philosophical assumptions. Are human beings really equal? Is “human dignity” a clear concept? Is “freedom of speech” really freedom? By virtue of its very existence, it is meant to limit the rule of law, to restrict its power. Its natural place, therefore, is in a constitution (when there is one), a bit more distant from the grasping fingers of the legislators. And even there, lawmakers love to abuse it. And so it often happens that the systems of “rule of law” and “human rights” live side by side in phlegmatic and lazy coexistence, without disturbing each other.

Israel is an excellent example of the lack of connection between the two. Israeli law explicitly and transparently avoids granting its subjects some of the most fundamental rights: not equality, not freedom of religion, not full freedom of speech, not full right to property and not even the right to marry as one chooses. Not to mention the so-called nation-state law and the innumerable crimes and acts of evil that take place daily in the occupied territories. And all find refuge in the shade of the broad wings of the rule of law.

Unfortunately for those devout believers in “the law,” humanistic values are born and preserved by ideologies, not judicial systems. Religious, racist, capitalist or fascist ideologies will each enact a “rule of law” that is to its own liking: a rule of law that is religious, racist, capitalist or fascist. Only one worldview, the one known as “enlightenment,” places the human being at the center. Not God, not a particular race, not wealth, not the state. Only the human being. Which is why only enlightenment (and its adopted daughter, democracy) is committed to creating a “rule of law” that is focused on human beings and their rights.

Strange half-breeds like “illiberal democracy” or “Jewish and democratic state” are irrelevant oxymorons. They are cunning and clumsy attempts to evade the binding grasp of enlightenment and are surefire recipes for corruption and evil. They contain exemplary “rules of law” and trash cans filled with human rights.

In closing, a multiple-choice question for civics students. While sitting in an Alabama prison, human rights champion Martin Luther King Jr. wrote, “We should never forget that everything Adolph Hitler did in Germany was ‘legal.’ … It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany.” So tell me, dear students, what have you learned from MLK’s words about the rule of law?

(The correct answer is C., “Yalla, he was just a Black Sambo goy. Get him out of my face.”)