Israel’s Courts vs. Judaism

Don’t be surprised. The same court system that has, for years, obstructed the city of Rechovot in its attempt to provide a home for Lev L’Achim and its Torah classes, now insists that the city of Jerusalem must fund activities for gays.

This is quite typical for the court system under Supreme Court President Aharon Barak. As Evelyn Gordon explained a few days ago, we got a recent insight “into how Barak makes decisions: not by interpreting the law, but by creating new laws in the Knesset’s stead.” Her article is, as usual, required reading for anyone still operating under the misconception that Israel is a democracy. In a democracy, an oligarchy of Judicial tyranny cannot replace the laws of the democratic parliament with its own “enlightened” choices.

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23 Responses

  1. Ori Pomerantz says:

    RYM: In a democracy, an oligarchy of Judicial tyranny cannot replace the laws of the democratic parliament with its own “enlightened” choices.

    Ori: Is the US a democracy? The Supreme Court has been known to strike down laws, and some of its interpretataions of the constitution are far fetched. See, for example, .

  2. Bob Miller says:

    At least the members of the US Supreme Court are selected by a process that involves officials elected by the people, and there is a Constitution that even now limits judicial creativity.

    I get the feeling that the Prime Minister and Knesset could in fact stand up to the Israeli Supreme Court if they really wanted to–considering that the Supreme Court is abusing and even inventing its powers. But maybe the Court is really doing what most Knesset members would like to see done. Or maybe the judicial system has enough dirt (real or fabricated) on enough politicians to keep them in line as a group.

    Furthermore, the system of electing the entire Knesset at large has made the members basically unaccountable to anyone but their party leaders. So the executive/legislative world has its own oligarchy which gets along pretty well with the judicial oligarchy. Election by district (no gerrymandering , please!) would be a major improvement if there was a way to make it happen–a big “if”.

  3. Yaakov Menken says:


    To strike down laws that violate the Constitution is one matter; to create new laws out of whole cloth, entirely another. The Marshall Court, during the early years of the US government, established judicial review in this country. Have a look at the relevant Wikipedia article and you’ll see that Judicial review is common to a democracry. Note that in no democratic government is the judiciary authorized to replace the laws it strikes down, much less create new ones.

    Do read Evie Gordon’s article — the Knesset explicitly considered and rejected the creation of certain laws. Barak decided they ought to be there, so he created them.

    That’s not a democracy, especially given that the Supreme Court nominees are essentially chosen by the sitting president of the Supreme Court.

  4. HILLEL says:

    This kind of hanky-panky plays into the hands of the anti-semites who claim that the Israeli Government–its protestations to the contrary notwithstanding–is really a dictatorship that opresses the Arabs.

    In Yiddish we say: “Ehr strked Aus a kasher Chazer-feesal.”
    (An unclean animal that masquerades as a kosher animal).

    Bob Miller’s comment is probably very close to the truth. I have long flt that a small oligarchy of th rich and powerful rule Israel and do pretty much what they want. They are largely secular people who place obstacles into the path of the religious population to limit their growth and power as much as possible, short of provoking a civil war.

  5. Menachem Lipkin says:

    It’s extreme hyperpoble to say that Israel is not a democracy. While the situation with the superme court in Israel is not ideal, there is still a balance between the powers in Israel. In fact Gordon specifically alludes to this in her article when she says,

    “Only by swiftly countering judicial overreach through legislation can the Knesset send the message that it will no longer tolerate such power grabs.”

    The fact that the Knesset CAN do this negates the assertion that Israel is not a democracy.

  6. HILLEL says:

    To Menachem:

    By your definition, the Soviet Union was a democracy, too.

    The reality is that the Knesset pretty much allows the Supreme Court to have its way, because the party leaders who control the electoral process and the Knesset membership have the same secular philosophy as Barak and the other members of the Court–they are quite content to allow Barak to do the legislating for them, thus saving them the hard work of seeking consensus and a majority in the Knesset itself.

    There are many issues that are extremely unpopular with the public–such as allowing international homosexual festivals in the Holy City of Jerusalem. The Court comes-in very handy for supporting this kind of activity, which is opposed by over three-quarters of the normal Israeli population.

  7. Yisrael Moshe says:


    The current Gov of Israel is not a democratic one for many reasons besides faulty checks and balances.

    Of all of the undemocratic behavior of the Gov of Israel, what stands out most is the lack of individual represntation in the Legislature (Knesset).

  8. MuMU says:

    We shouldnt complain against the gays.

    A. No where does the Torah say you must fight against them more than other bailai Avaira
    B. We cant win
    C. We should be mekariv people not merachek them
    D. We know how it feels to be singled out for discrimination.
    E. Here in the US wer’e next on the list of “undesirables”.

  9. HILLEL says:

    To MuMU:

    You’re right. We shouldn’t complain against gays.

    1. We should invite them–en masse–to the Holiest City on Earth–Jerusalem–to publicly celebrate their defiance of G-D in his own palace.

    2. We should spend tens-of-thousands of Shekalim to send hundreds of police and military to protect them from outraged Jerusalemites, as they publicly march to proclaim their “pride” in defying G-D and his Torah.

    3. We should force the Orthodox mayor of Jerusalem to spend tens-of-thousands of Shekalim–sorely needed for the poor and hungry–to fund the street decorations for this parade of abomination.

    4. If the Mayor protests, we shoul;d fine him tens-of-thousands of Shekalim and donate the money to the Jerusalem Open House to help them seduce young kids into the lifestyle of depravity.

    The Israeli courts did all of these things last year, and they will do them again this year–on a much larger scale–if nothing is done to stop them.

  10. Bob Miller says:

    Regarding MuMU’s points from 1:26 pm today:

    Kiruv does not involve promoting wrong behavior by those we wish to influence.

    While Jews are a minority in the US, we should not make common cause with other minorities whose programs are socially destructive, whether to the participants or to others.

    We should also oppose public funding of socially destructive programs anywhere.

    Our Torah leaders should be our guides as to what is or is not socially destructive.

    If others disagree with us or outnumber us, we may still have reason to take a public stand on principle, if only to tell confused or misled people how Judaism actually holds.

  11. Nachum says:

    Hillel, I’d agree with you, but I should point out that every country has a political class that decides what gets debated and what doesn’t. Even the US. And yes, judges may not make laws here, but they have the power to have laws passed- see the gay marriage issue in Massachusetts.

    MuMU, we are “next on the list” for what? Gays are the wealthiest, most powerful minority in the US. What sort of discrimination- that we “know” about- do gays suffer in the US or Israel?

  12. Toby Katz says:

    Israel IS a democracy but highly imperfect. Compared to any Arab country you can name it is an oasis of civilization and freedom.

    America is also an imperfect democracy with an over-reaching Supreme Court, but less imperfect than Israel.

    One big difference between them is that American democracy developed from British culture with its Magna Carta and gradually-evolved legal system. Israeli democracy was an outgrowth of Russian socialism, a foal of the same mare that bred the Soviet Union. Israeli democracy contains in its DNA a genetic tendency towards totalitarianism under a veneer of legalism — what the USSR was famous for. All kinds of rights on the books, plus the Lubyanka…That was the model.

  13. Menachem Lipkin says:

    Hillel, your four points highlight one of the hallmarks of a democracy, which is to protect minorities.

    The problem here is not that Israel is not a democracy (Israel’s governament falls into any basic definition of democracy), it’s that it’s too much for some people. I wonder if there would be any posts on this blog if the supreme court were made up of orthodox rabbis and they were “enacting” laws against imodesty, internet, etc. against the majority public will?

  14. HILLEL says:

    To Menachem:

    Evidently, you hold the view that democracy is something mechanical–a set of procedures, with no concern for outcomes, good or evil.

    This, in the opinion of Irving Kristol, a leading student of democracy, is not what democracy should be about.

    Here is his essay on the subject:

  15. Menachem Lipkin says:

    Call me a democratic Litvak, but yes there are basic accepted definitions of what constitutes a democracy. Overlayed on that are all kinds of philosophically subjective ideas of what the outcome of a democracy should be. That’s what’s being bantered about here. Kristol doesn’t like the outcome of the current American democracy, some posters here don’t like the outcome of Israli democracy, but they are still democracies by definition.

    Krisol’s article is somewhat disingenuous in that he harkens back to some “ideal” democracy of a century ago ignoring the fact that under that democracy when “the quality of public life was crucial”, there was slavery, institutional racism and severe sexual inequality among many other evils.

  16. Bob Miller says:

    In fact, the US is a republic under a constitution.

    The states, which pre-existed the constitution, have retained powers of their own that the constitution did not delegate to the federal government.

    The federal government has features, such as two senators per state regardless of state population, and the electoral college, that represent the desire of the founding fathers to limit democracy in the interest of other considerations.

    There is no concept that a national majority can do whatever it wants.
    There is also no concept that any branch of the federal government can do whatever it wants.

  17. HILLEL says:

    To Menachem:

    I don’t understand what is so evil about “severe sexual inequality.”

    Our Torah makes very clear distinctions between the roles of men and women. It makes very clear distinctions concerning what is and what is not an acceptable sexual relationship–homosexuality, adultery, incest, bestiality–all these are forbidden.

    Even in America, it was once considered a mark of distinction to be a “discriminating connoiseur.” When did discrimination become a dirty word? (Hint: Marxism in the colleges)

    “Im Ein Da-As, Havdoloh Mi-Nain.”–where there is no common-sense, there is no discrimination.

    Our Torah doesn’t preach equality. It teaches righteousness and submission to G-D.

    I guess such ideas offend those who are under the influence of “modernity.”

  18. Menachem Lipkin says:


    You are trying to play both sides of the fence. Are you talking democracy or theocracy? You’re the one that linked Kristol’s article. I was critiquing this article not conveying my religiously-based preference. Kristol’s article is a non-starter because he’s not being intelectually honest and consistant.

    While the Torah may proscribe different roles for men and women. Short of a messianically induced theocratic state run by true gedolim I would not want those roles determined by some societal sense of what these roles should be. Would you really rather live in a Taliban-like society over a liberal democracy? I sure wouldn’t.

  19. Yisrael Moshe says:


    In comment #16, you state that the Gov of Israel (GoI) meets the definition of democracy. I disagree.

    In Bar Ilan University, their is a political science professor named Paul Eidelberg. He is also the President of the Foundation for Constitutional Democracy. His academic credentials are impeccable. He has written extensively about how the GoI does not meet the definition of democracy, neither in form nor in content.

    The reason we are harping on this apparently insignificant detail is because the GoI has abused the term “the only Democracy in the Middle East” to further their corrupt agendas. To give just one example: Ariel Sharon used every undemocratic method and took advantage of every flaw in the undemocratic system in order to gain approval for his Gush Katif expulsion plan. As soon as his plan was legalized, the GoI constantly referred to the canard of “we are a democracy, governed by the rule of law” to manipulate popular opinion to 1.)support the expulsion and 2.)detest the Jews of Gush Katif.

    Had Israel been a democracy, the plan would have never come to fruition. Since the GoI is not a democracy, constantly taking advantage of the veneer of democracy to legitimatize evil is manipulative and disingenuous.

    It is of utmost importance that this truth be exposed, so that the political despots will be deterred from passing and approving evil, immoral, and undemocratic legislation.

  20. Bob Miller says:

    Menachem asked,
    “Would you really rather live in a Taliban-like society over a liberal democracy?”.

    This “either or” does not exhaust the possibilities.

    We should want the general society we live in not to interfere with our practice of Judaism and also not to ignore or support criminal or publically immoral activities. Why does this combination seem less possible to achieve now than in the late 1950’s? Because general society and its political discourse have deteriorated. Should we resign ourselves to this situation or try to fix it?

  21. HILLEL says:

    To Menachem:

    I’m not “playing both sides of the fence.” I’m merely calling for moderation and wisdom in running a democracy.

    As Alexis de-Toqueville wrote in his famous book “Democracy in America,” America’s strength is that it DID NOT establish a pure democracy. It established a democracy moderated by the wisdom of men like Franklin and Madison–a republic.

    Pure democracy inevitably degenerates into mobocracy, where the majority simply tramples over the minority. However, some minority ideas cannot be tolerated within the societal consensus without destroying the society, so they need to be suppressed.

    Nazis and murderers may have their justifications for what they do. But, if we accomodate them, we will be committing collective suicide.

    So, there is no substitute for wisdom and wise men.

  22. Yisrael Moshe says:

    This small gives a basic summary of the polical form of the Government of Israel.

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