After Hamas’ brutal attack on Israel during Simchat Torah, it became even clearer how great is the damage caused by a legal system alienated from Israel’s unique challenge * The legal system set restrictive rules for dealing with “demonstrators” at the Gaza fence, and made it harder for the security system when it prohibited necessity interrogations and the “neighbor procedure” * The harm done to the Jewish identity of the state, and the value of settling the Land, also played a part in the terrible crisis we find ourselves in * Only a return to our Jewish and national values, will get us back to growth
In this week’s Torah portion, the Torah commands us to establish a judicial system based on Jewish values, as written: “These are the rules you shall set before them” (Exodus 21:1). Our Sages taught: “One may go to court only before them, i.e., Jewish judges, and not before gentiles” (Gittin 88b). Of course, public representatives are able to enact laws and regulations, provided the basic commitment to the Torah’s principles remains intact. But when the judicial system draws its concepts and values from foreign, gentile sources, the courts are considered “courts of gentiles.”
Even if legal experts claim that today the Torah legal system lacks answers for the modern economy and society, at the very least, the judicial system must operate inspired by Jewish values, as the principle mentioned in the Declaration of Independence, which was given validity in the ‘Basic Law: The Judiciary’ 1980. But in practice, the judicial system turned its back on Israel’s heritage, and instead, adopted the values of other cultures, which despite their virtues, do not provide solutions for our national vision.
After Hamas’ brutal attack on Israel on Simchat Torah, it became clearer how great is the damage caused by a legal system following foreign laws, and alienated from Israel’s unique challenge as a state, fighting its enemies. Let’s briefly review the damage the legal system caused to our national-security situation:
Harming Israel’s Security
When left-wing organizations petitioned against the open-fire orders towards Gaza “protesters” at the fence, the legal system backed the security system, but added clarifications that, in practice, tied their hands, and enabled “protesters” to make all necessary preparations for attack. Indeed, the main blame lies with the security system itself. Had they understood the enemy and arena, they would have insisted on giving soldiers open-fire orders allowing them to hit any suspect approaching the fence. In practice, even the lenient open-fire regulations barely received legal backing, causing the IDF to further limit itself, eroding deterrence and defense abilities.
Thus, we reached a situation where soldiers hesitated and even avoided shooting at terrorists and their cohorts breaching into Israel, thinking the open-fire orders prevented it.
More examples of obstacles the legal system placed before the security system: 1) The courts prohibited the shaking-up of suspects interrogated by the Shabak (Secret Service), including cases of “ticking-bombs”. 2) They abolished the procedure of “human shields”, a method that has saved the lives of numerous soldiers. 3) The court placed severe restrictions on the IDF, tying their hands in the harming of terrorists about to carry out an attack when in a civilian setting. 4) The courts disqualified a law – despite being passed in the Knesset – allowing the incarceration of ‘hardcore’ terrorists for a period of two weeks without seeing a judge, despite the security needs for such a procedure in order to obtain information from them. 5) In opposition to the opinion of the defense establishment, the Supreme Court instructed the dismantling and relocation of sections of the ‘security fence’ and settlement’s security fences in several locations, and also ordered the opening of roads and removal of roadblocks, in full knowledge that this would likely cause a security risk.
Sometimes, the very fact the High Court (Bagatz) starts deliberating certain petitions, causes the governmental system to retreat from its plan. For example: The High Court held hearings on left-wing petitions against reducing fuel, electricity and various supplies to Gaza, and as a result, the Attorney General, Mr. Mandelblit, ordered the government to retreat from its plan. Thereby, we lost one of the effective tools for fighting the Gaza enemy.
Precisely when they should have upheld the law, and prevented the release of over a thousand terrorists in exchange for Gilad Shalit, they abstained, and agreed to forfeit over a thousand convictions that sentenced the terrorists for murder and terror activity against Israel.
This concise survey suffices to understand the legal system’s primary role in the security failure. Unfortunately, we have not heard any expressions of soul searching.
Harming the State’s Jewish Identity
The harm done to the Jewish identity of the State of Israel also played a part in the terrible crisis we are in. Decisions alienating the Jewish identity of the State of Israel undermine its ability to recruit all its forces for the fight against its surrounding, and internal, enemies.
We will mention several legal system decisions in this sphere: 1) Harming the status of Hebrew as the state language, while almost equalizing the Arabic language. 2) Preventing disqualification of parties and candidates who do not accept the state’s Jewish identity, contrary to the Election Committee’s position. 3) The Attorney General prevented the state from opposing family reunification of Arab families for demographic reasons of maintaining a Jewish majority, allowing opposition only on security grounds, which the High Court barely approved as a temporary order. 4) When Knesset members realized the dismal legal situation, they legislated the ‘Nationality Law’, but the court emptied it of content, thereby entering the political arena, and causing the harsh controversy over judicial reform last year.
Harming the Value of Settling the Land
For one hundred and fifty years, a national struggle has raged between Jews and Arabs over the Land of Israel. To redeem the land and settle it, first the Jewish National Fund was established, and afterwards, we merited the establishment of the state, intended for this purpose. But the Supreme Court, through a gradual process, damaged the State of Israel’s ability to realize its purpose: 1) It prohibited the government from allocating state lands for settlement intended for Jews only. 2) It prohibited giving benefits to Jewish communities in the Galilee and Negev, to strengthen the Jewish foothold there. 3) Even regarding Jewish National Fund lands, purchased with solely Jewish money, following Supreme Court deliberations, the Attorney General instructed to no longer prefer Jewish settlement. 4) Following left-wing organization petitions, the court hurried to intervene and demand evacuation of Jewish neighborhoods and outposts in Judea and Samaria, breaking the legal deliberation rules requiring proceedings in magistrate’s and district court to clarify land ownership. 5) The court prohibited the state from aerially spraying herbicide on illegally planted Bedouin plots in the Negev, even though it was proven an effective method of curbing their land grab. 6) The court prohibited Prime Minister Netanyahu at the end of his first term from closing the ‘Orient House’, claiming his was a “caretaker government,” while dismissing an identical petition against the Taba talks at the end of Barak’s term. And recently, they allowed caretaker Prime Minister Lapid to sign an irreversible agreement on the maritime border with Lebanon, five days before elections.
“I Will Drive Them Out From Before You Gradually”
It is commonly thought that our main problem with our enemies is that we did not fight them properly, or did not expel them when we could have, but from this week’s Torah portion (Mishpatim), we learned that the basic problem was that there were not enough Jews to settle the Land, as the Torah says: “I will not drive them out from before you in one year, lest the land become desolate, and the beasts of the field outnumber you. Little by little, I will drive them out from before you, until you have increased, and can occupy the land. I will set your borders from the Sea of Reeds to the Sea of Philistia, and from the desert to the Euphrates River. For I will deliver the inhabitants of the land into your hand, and you shall drive them out before you.” (Exodus 23:29-31).
The Spies’ Double Sin
It turns out that underlying the Sin of the Spies, when Israel feared conquering the Land, lay another sin – negligence of the commandment to be fruitful and multiply. During the two hundred and ten years they were in Egypt – they increased from seventy souls, to six hundred thousand adult males. But during those forty years in the desert, had we continued reproducing and multiplying, we should have grown two or threefold, yet we did not grow at all.
These two commandments – settling the Land, and being fruitful and multiplying – depend on each other. The blessing of Land and family are one, as the Torah says: “The land on which you lie I will give to you and to your seed. Your descendants shall be as the dust of the earth. You shall spread out to the west, east, north and south. And all the families of the earth shall bless themselves by you, and your seed.” (Genesis 28:13-14).
Our Generation’s Sin of the Spies
Some 125 years ago, at the founding of the Zionist movement, there were about eleven million Jews. The Arabs residing in the borders of Biblical Israel, including Lebanon, Syria and Iraq, numbered just over 5 million people. Across the Jordan River there lived slightly more than half a million Arabs. There was an opportunity then for the Jewish people to return and settle the length and breadth of the Land, and on the waves of industrial revolution, increased food production and medical improvements – to be fruitful and multiply there. But most of our people remained in exile and suffered terrible troubles, while assimilation increased. Thus, today there are about fifteen million declared Jews worldwide, and about seven million Jews in Israel. By contrast, the Arabs surrounding Israel number over 80 million people.
Fortunate are those Jews who chose to immigrate to the Land of Israel, and settle it. In them, continues the vitality; they inherit the Land and increase in numbers, and they are the good news for the future of the entire nation.
The Land Began to Bear Fruit, and Not Everyone Came
When the period of exile ended in which the Land was also destined to be desolate, and the Land was preparing for its children to return – if no Jews immigrate, it will give fruit to another people in the meantime. Even though wars will arise from this, the situation that the good Land is desolate is more serious, and therefore, in the meantime, the people of another nation will live in it. In the meantime, an opportunity opens up for Israel to do penance, to be fruitful and multiply, to encourage Aliyah, to absorb it properly, and to fight for the Land. Arabs also had an opportunity to join and help Israel, or to be enemies and fight Israel and lose.
Return to Our Roots and Grow
The lack of a Jewish value infrastructure in the legal system is blatant and extreme, but it exists in all public, and private, systems – in the defense, education, economy, immigration, and settlement systems, as well. The more we deepen and study our spiritual heritage, the more we will strengthen our national and social identity, and grow to glory.
This article appears in the ‘Besheva’ newspaper and was translated
