The Foundation for Constitutional Democracy


The David Ha’ivri Case - full version

Filed under: GeneralDemocratic Methods — eidelberg @ 6:02 am

Expert Opinion Presented to the Jerusalem District Court by
Professor Paul Eidelberg on Behalf of David Ha’ivri

Below is the full edition. An abridged edition containing an Introduction and Summary only is available here.

A. Introduction

1. The David Ha’ivri case involves, initially, a clash between two democratic principles: freedom and equality. Printing the picture of Rabbi Kahane on the front of a number of shirts and on the back thereof the slogan “No Arabs No Terror Attacks” manifests the democratic principle of the freedom of expression. Conversely, the phrase “No Arabs No Terror Attacks” has been construed by the prosecution as “racist,” and racism offends the democratic principle of equality.

2. Section 144B of the anti-racism law states that “one who publishes a matter for the purpose of incitement to racism, may be incarcerated for five years”; and that “it does not matter if the publication led to racism or not, and if it contained truth or not.” This means that one may be imprisoned for five years for publishing words which, whether true or not, hurts no one! This is a remarkable infringement on freedom of expression.

3. What makes this infringement all the more remarkable is that whereas publishing the slogan “No Arabs No Terror Attacks” need not harm anyone even if the slogan contains truth, that slogan, if true, threatens the lives of Jews and even Israel’s existence! Which means section 144B of the anti-racist law is based on moral obscurantism. The law clearly implies that freedom of expression in Israel does not include the freedom to publish the truth about the relationship between Arabs and Arab terrorism, hence about this threat to Israel’s existence.

4. Contrast the libertarian position of the Supreme Court. The court recently quashed the Attorney General’s indictment of Talib a-Sana for incitement, when this Arab MK, in an interview on Abu-Dhabi TV, not only praised a suicide bombing attack in Israel but also called for more of the same. What does this ruling have to do with the anti-racism law?

5. Although both involve the democratic principle of freedom of expression, the anti-racist law and the Supreme Court ruling in the Talib a-Sana case also implicate the democratic principle of equality.

a. By making it a crime for a member of one ethnic group to publish a matter that degrades another ethnic group, the anti-racist law implies that all ethnic groups are morally equal even if the matter disparaging one group is true. The law is paradoxical. It renders two groups morally equal even if, in respect to terrorism, they are not morally equal! We have here, at first glance, the doctrine of moral equivalence—a doctrine peculiar to democracy.

b. Notice, moreover, that whereas it is illegal to denigrate Arabs by associating them with terrorist acts against Jews, it is not illegal to praise Arabs for perpetrating terrorist acts against Jews! Viewed in this light there is no moral equivalence but moral reversal! In both instances the Jews, not the Arabs, are placed at a racial disadvantage. One may therefore conclude that the anti-racist law as well as the Supreme Court ruling in the Talib a-Sana case are unwittingly racist! While the racist law endangers Jews, the court’s ruling not only endangers them, but also permits their degradation by giving Arab MKs a license to praise Arabs for killing Jews.

6. Confining ourselves to the anti-racist law, its assumption regarding the equality of Jews and Arabs logically involves a basic contradiction between this democratic principle and Israel’s survival as a Jewish state. The time has come to explore this contradiction on philosophical grounds. To put the issue another way: Is democracy compatible with Judaism?

7. Before probing this issue, it should be noted that prominent Israelis—including Supreme Court president Aharon Barak and various rabbis—claim that democracy and Judaism are compatible. This claim would have amused or astonished Benedict de Spinoza. I mention Spinoza because he is not only the father of liberal democracy, but also of modern “biblical criticism” which so much influenced the founders of the Jewish state. As may be seen in his Theological-political Treatise, Spinoza was the first philosopher who was both a democrat and a liberal.[1] His Treatise disdains Judaism as a tribal religion and exalts democracy as “the most natural form of government,” for there “every man may think what he likes, and say what he thinks.”[2] Spinoza’s view of democracy clearly contradicts the anti-racist law. But like the anti-racist law, Spinoza’s libertarian view of democracy also makes truth irrelevant in that form of government. Indeed, Spinoza prepared the philosophical grounds for the absence of moral norms peculiar to contemporary democracy. But if contemporary democracy is normless, it contradicts Judaism, whether Judaism is understood as a tribal religion or not. In what follows, I shall elaborate on the contradiction between Judaism and democracy and I will show in the process that Judaism is not a tribal religion.

B. The Meaning of Democracy[3]
1. Democracy literally means the “rule of the people” or popular sovereignty. Stated as such, and without qualification, the notion of popular sovereignty, and therefore democracy, clashes with the Torah which proclaims the sovereignty of God.

2. Etymology aside, judging from the prevailing ideas and behavior of Western societies, contemporary democracy is little more than a random aggregation of individuals and groups pursuing their own aims and interests. The result is ethnic pluralism or multiculturalism, fortified by the doctrine of moral or cultural relativism that dominates every level of education in the West. Lacking in contemporary democracy are not only unifying norms of human conduct, but any rational basis for national loyalty. Being normless, contemporary democracy denies the existence of universally valid standards by which to determine whether the way of life of one individual, group, or nation is intrinsically superior to that of another—superior in the sense of being more conducive to human excellence or to domestic and international harmony.

3. Stated another way, contemporary democracy—which is not to be confused with Athenian democracy—does not entail any particular ethnic or religious character. This is why there are no ethnic or religious qualifications for voting or holding office in contemporary democratic regimes, with the (ethnic) exception of Japan. In fact, political scientists define democracy as a “process” or the “rules of the game” by which individuals pursue their private interests and lifestyles. In contrast, Judaism is a nationality, a prescribed way of life. To be more precise, Judaism has endogamous marriage laws and ethical precepts, its own distinctive jurisprudence and economy, its own system of education and national literature. All this is quite foreign to contemporary democracy.

4. Also, democracies separate religion from the state or public law. The idea of separating religion and state originated in the Christian doctrine, “Render unto Caesar the things that are Caesar’s and unto God the things that are God’s.” This doctrine severed Christianity from nationality and eventually made religion a private matter­. Applied to Israel, this Christian doctrine would marginalize the Torah, as indeed it has. Only a few instances of Jewish civil law have been incorporated into Israel’s legal system. Consequently, Jewish civil law hardly influences the daily life of the Jewish people, as it did throughout the Diaspora, wherever Jews, prior to the eighteenth century, enjoyed juridical autonomy and creatively applied Jewish law to the most diverse social and economic conditions.

5. This said, let us examine democracy’s two basic principles, freedom and equality, from a Torah perspective. By so doing it will be possible to develop a new conception of democracy, which, I dare say, will refute Spinoza’s view of Judaism and transcend the normless democracy of which he is the father.

C. Freedom

1. Freedom is one of the most precious jewels of the Torah, so precious that kidnapping and depriving a man of his freedom is a capital offense (Exod. 21:16). Why this exaltation of freedom?

2. To begin with, the Torah’s conception of freedom is rooted in the Genesis account of man’s creation in the image of God. Therein is the ultimate source of free will and rationality, of human dignity and creativity, of human rights and duties. Freedom is a gift with which all men are endowed, be they Jewish or not. For the Jews, moreover, freedom also has a national dimension, emphasized repeatedly in the Torah and in Jewish prayer books, namely, the deliverance of the Children of Israel from Egyptian bondage.

3. The freedom attained in the Exodus, however, was not merely freedom from Egyptian servitude, which is negative, as much as the positive freedom to serve God. (See Exod. 7:16, 8:16, 21-22.) Jewish freedom therefore involves dependence on God and on God alone, and it is this dependence that has made Jews the most independent and creative of men, despite their having been reviled and decimated by the gentile world. But to better appreciate the Torah’s conception of freedom, let us pause and consider various definitions of freedom advanced by modern democratic thinkers.

4. If freedom is to be consistent with man’s creation in the image of God it cannot be defined, as did Bertrand Russell, as “the absence of obstacles to the realization of one’s desires.” Translated by the vulgar into “living as one likes,” this is the prevalent view of freedom in the most “progressive” democratic societies. Nor will true freedom be found, as Montesquieu believed, in the interstices of the law, such that one may do whatever the law does not forbid. This view of freedom, like the former, can justify the sexual perversions decriminalized by the American and Israeli Supreme Courts. Nor does freedom consist in obedience to laws in whose formulation one has merged his will with the will of others, that is, Rousseau’s “general will.” The general will can be as frivolous or as unjust as the will of a tyrant. To be consistent with man’s creation in the image of God, freedom must be the voluntary and rational observance of laws which are independent of human volition. Let me explain.

5. Philosophically speaking, freedom is a pure potentiality, whose actualization can be good or bad, noble or base. If freedom is to result in good, it must conform to the dictates of right reasoning. As Plato and Alfred North Whitehead saw, genuine freedom is action consistent with reason and truth. This view is logically related to the Torah concept that God, Who alone is absolutely free, is the ultimate source of truth and of human freedom. Accordingly, to understand His laws and willingly obey them is to achieve the height of human freedom, for only those laws are wholly just and rational.[4]

6. For a person at that level, the laws of morality are equivalent to the laws of nature, except that, unlike mindless nature, he freely obeys that which he knows to be the crystallized thought of God. Freedom then becomes necessity, and the will becomes thoroughly rational.

7. Now let us consider this passage from Israel’s Declaration of Independence: “The State of Israel … will be based on freedom … as envisioned by the Prophets of Israel; it will ensure complete equality of … political rights to all its inhabitants irrespective of religion …” Any intelligent and honest person, even if not religious, will admit that the Prophets’ understanding of freedom differs from the permissive freedom of normless or contemporary democracy. Viewed within the context of the Torah, the freedom of the Prophets is conduct consistent with the will of God. Their prophecies may be understood as the crystallized thought of God.

8. Clearly, the Prophets did not regard “freedom,” as do the vulgar, as “living as you like,” which makes all “lifestyles” morally equal. Notice, however, how the Supreme Court never speaks of freedom as envisioned by the Prophets of Israel. Instead, the court tendentiously focuses on the democratic principle of equality. Let us examine this principle from a Torah perspective.

D. Equality

1. As was the case of freedom, the only solid and rational justification for the principle of equality is to be found in the Genesis account of man’s creation in the image of God. This equality underlies a famous statement of the Jerusalem Talmud: “If gentiles [surrounding Israel] demand, ‘Surrender one of yourselves to us and we will kill him; otherwise we shall kill all of you,’ they must all suffer death rather than surrender a single Israelite to them” (Terumot 8, 9). This means that no individual may be sacrificed for the sake of his society. With respect to human life, therefore, all Jews—learned and unlearned, rich and poor—are equal. This equality, however, should not be confused with its secular counterpart. For as concerns danger to life, the conclusion that all Jews are equal is based on the premise that all souls belong to God, that the soul of an individual and his purpose in world-history is known only to his Creator.

2. Furthermore, unlike democratic equality, equality in the Torah has nothing to do with equal rights or claims which one abstract individual may make against another. A person’s “rights” depend on who or what he or she is in relation to Jewish law, the Halakha. For instance, in procuring their release from captivity, “A Kohane takes precedence over a Levite, a Levite over an Israelite, and an Israelite over a bastard … This applies when they are all [otherwise] equal; but if the bastard is learned in the Torah and the Kohane is ignorant of the Torah, the learned bastard takes precedence over the ignorant Kohane” (Mishna, Horayot 3:8). Similarly, under Jewish law “a scholar takes precedence over a king of Israel” (Horayot 23a).

3. Finally, “If a man and his father and his [Torah] teacher were in captivity [for ransom], he takes precedence over his teacher and his teacher takes precedence over his father, while his mother takes precedence over them all [if only because of her greater vulnerability]” (ibid.). Clearly, the order of precedence is determined by learning, unless a woman’s life or honor is at stake. Moreover, if a man has not left enough to provide for both his sons and his daughters, the first claim on the estate is that of his daughters.

4. These examples demonstrate that equality in the Torah does not involve the leveling of distinctions characteristic of contemporary or normless democracy, where indiscriminate equality or moral equivalence prevails.

5. It is precisely the democratic principle of equality that most clearly reveals the contradiction between democracy and a Jewish state. For given the prolific birthrate of Israel’s Arab citizens, the democratic principle of one adult/one vote will sooner or later enable these Arabs to become a majority in the Knesset and then, through perfectly legal means, transform Israel into an Arab-Islamic regime. However, such a regime, following the pattern of all other Arab-Islamic regimes, will not be a democracy. It would then follow that the democratic principle of one adult/one vote dooms the only democracy in the Middle East.

E. Conclusions

1. To transcend contemporary or normless democracy, it will be necessary to derive freedom and equality from the Genesis conception of man’s creation in the image of God. This will provide freedom and equality with the ethical and rational constraints operative in normative or classical democracy. Instead of assimilating Judaism to democracy, the tendency of apologists, democracy should be assimilated to Judaism. The term democracy could then be incorporated into the language of Israeli public discourse by redefining democracy as “the rule of the people under God.”

2. The case against David Ha’ivri should be dismissed, and the anti-racist law should either be rescinded or drastically amended so as not to make it illegal to publish the truth about Arab terrorism in Israel.


[1] See Strauss, Liberalism Ancient & Modern (Basic Books, 1968),p. 244. As Strauss notes, Spinoza hated Judaism as well as Jews, an attitude Hermann Cohen deemed “unnatural” and even as a humanly incomprehensible act of treason.” I mention this because one may find a similar phenomenon among certain Jews in Israel today.

[2] The Chief Works of Benedict de Spinoza (Dover: 1951), I, 207, 257, 263, 265.

[3] For a more extensive view of this subject, see the author’s Jewish Statesmanship: Lest Israel Fall (Ariel Center for Policy Research, 2000; University Press of America, 2002), ch. 3.

[4] As Schiller put it, “Where justice and reason reign, ‘tis freedom to obey.”