A Question of Norms

If you want to know what norms prevail in a given society, one sure way to find out is to observe its legal rulings, and to learn from them.

Every criminal allegation goes through the stage of facts clarification, and when a court weighs evidence, it is expected to determine the legal significance of those facts. In other words: do the facts constitute a felony? The decision regarding the legal significance of the facts - the legal interpretation - is what determines whether or not a crime was committed, and if so, what that crime was.

This is where behavioral norms, what is acceptable in society, come into play.

For example, a minister of industry, trade and labor, who once served as mayor of Jerusalem, received from a "friend" $15,000 in cash, $4,000 to finance a trip and a hotel stay and $380,000 to cover a campaign debt. Does that constitute fraud and breach of trust. The court decided the answer to that question was no.

What if that same minister of industry, trade and labor arranged for benefits for businesses represented by his good friend? Has he committed breach of trust? To that question, the court answered yes.

While it's true that a court weighs the evidence in each case and ultimately issues a ruling that's specific to each case, no court exists in a vacuum. Courts operate in a society, and the prevailing norms of that society will influence the legal norms as well. Thus, if in Israeli politics the practice of making as many political appointments as possible has become acceptable, the court understands that it cannot suddenly determine that for John Doe - who was particularly adept at that practice - it was forbidden.

As it turns out, different people could be subject to different norms, so the exact same set of facts could produce different conclusions. For example, collecting excess funds from parallel organizations to finance additional trips for Mr. Doe does not constitute fraud and breach of trust by Mr. Doe. But Mr. Doe's bureau chief, who managed the collections, but didn't actually fly herself, is guilty of fraud and breach of trust.

How could that be? Because the bureau chief is "independent with broad judgment, dealt with the issue on her own and, to make it easier for the accused and not bother him, didn't tell him what she was doing." In other words, the norm in our society is that someone who benefited from something acquired fraudulently is not guilty; the only guilty party is the scut worker who arranged the fraud for him.

Actually, perhaps that is to be expected with regard to a scut worker. But it seems an upper-class woman is liable to find herself subject to the exact same norms. So, when an illegal foreign worker cleans the house of the defense minister's wife or the attorney general's wife, she's accused of a crime. But when the exact same worker cleans the defense minister's house or the attorney general's house, it's not a crime at all.

Well, of course it is a crime, but the domestic affairs chief - excuse me, the minister's wife, like the attorney general's wife - took care of hiring the cleaner herself; to make it easier for the accused - excuse me, the minister - she didn't want to bother him and never told him about it. So he's not guilty of anything.

Norms change with time. So, back in the 1970s, we were already starting to hear legal opinions stating that there is no occupation in the West Bank, because no state had been sovereign there before and the question of who was meant to get that territory was still open. If the Arabs had accepted the UN Partition Plan in 1947 they would have been sovereign, but since they didn't, Israel is their "lost sovereign."

The legal expert making that claim was Yehuda Blum, in his famous 1971 article, "Zion in International Law is Redeemed." But this opinion remained very much a minority one and the State of Israel and its institutions never adopted it. On the contrary, Israeli governments and the Supreme Court recognized that the state was ruling over a large population and related to the territory as occupied territory.

Yet, 40 years later, the exact same bold opinion is offered by a committee headed by a former Supreme Court justice. And it gets huge headlines, because today, the norm is that the settlements are communities like any communities and "occupation" is just one of those ugly anti-Israel words used by an ever-diminishing band of leftists.

It's all a matter of norms. If you want to know what norms prevail in a given society, one sure way to find out is to observe its legal rulings, and to learn from them.