The Foundation for Constitutional Democracy

01-Jan-2002

A Record of Judicial Despotism

Filed under: Supreme Court/Judicial — eidelberg @ 11:51 pm

Before setting forth the record of judicial despotism of Israel’s Supreme Court under its president, judge Aharon Barak, it will be worthwhile to mention a judicial ruling of one of the greatest Talmudists, Ra’avad (Rabbi Avraham ben David of Posquires, 1125-1198). Ra’avad held that a Beth Din may never revoke the decision of a previous Beth Din once its latter has taken hold and spread throughout Israel.

In the last two months of 1998, Israeli courts, handed down three precedent-setting rulings that contain the seeds for fundamental change in Israel’s way of life. The first was a decision of the Supeme Court, sitting as the High Court of Justice, that forced the religious councils in Jerusalem and Kiryat Tivon to seat representatives of the Reform and Conservative movements. (more…)

Judicial Aspects of Torah Governance

Filed under: JudaismSupreme Court/Judicial — eidelberg @ 11:40 pm

Israel is commonly regarded as the “only democracy in the Middle East,” and so it is compared to its despotic Arab neighbors. But how does Israeli governance today stand vis-a-vis Torah governance?

To answer this question, I shall limit myself to certain judicial aspects of Torah governance, and invite the reader to contrast what he knows of Israel’s Supreme Court under its president, Judge Aharon Barak.

The judicial and highest organ of Torah governance is the Great Sanhedrin. (See Deut. 17.11.) Consisting of seventy-one judges, this extraordinary institution combines judicial and legislative powers and may even bring the king to justice on a suit brought against him by any private citizen. (more…)

Israel’s Chief Justice Aaron Barak

Filed under: Constitution & RightsSupreme Court/JudicialPoliticians — eidelberg @ 11:00 pm

Israel’s Chief Justice Aaron Barak: Part I

Back in March 1992, the Knesset enacted two basic laws, Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation. According to Justice Aaron Barak, who at the time was not president of Israel’s Supreme Court, these two Basic Laws were nothing less than a “constitutional revolution.” The first mentioned Basic Law was passed by a vote of 32-21, that is, with less than half the Knesset voting, while the second passed by the underwhelming vote of 23-0.

Well, you see dear reader, there was an impending Knesset election, and Israel’s MKs were preoccupied with more important matters, like saving their seats. Yet these Basic Laws are supposed to be part of Israel’s so-called “emerging constitution.” It’s been emerging for decades! Emerging or not, can anyone imagine amending a country’s constitution, its fundamental law, by a mere 20% of its legislature, representing, we may suppose, a mere 20% of that country’s population! Would anyone take such a amendment seriously, or feel that it should have the status of a fundamental law superior to ordinary legislation? (more…)

The Rule of Law

Filed under: Democratic MethodsSupreme Court/Judicial — eidelberg @ 10:31 pm

The rule of law is a basic principle of the Torah and of classical democracy. The rule of law affirms that those who make the laws are obliged to obey the laws. Accordingly, Jewish law enables private citizens to bring public officials—including a king—to the bar of justice. Consistent therewith, the American Supreme Court held that a private citizen can institute a civil suit against a President, as indeed occurred in the case in which (former) President Bill Clinton was accused of sexual harassment.

The rule of law as just defined hardly exists in Israel. Abbie Nathan and Shimon Peres made contact with Yasser Arafat in violation of the 1986 Prevention of Terrorism Act. Mr. Nathan, a private citizen, was incarcerated for six months for that felony. Shimon Peres was never indicted. (more…)

Israel’s Dysfunctional System of Governance

Filed under: A SOVEREIGN STATEHOODGOVERNMENT BRANCHES — eidelberg @ 10:28 pm

People in Israel and abroad wonder what it is that makes politics and politicians so erratic in the Jewish state.

First and foremost the lack of a written constitution in this country, one that prescribes the powers of the Legislative, Executive, and Judicial branches of government. Instead, Israel has a welter of Basic Laws enacted haphazardly over the course of decades, which laws, far from being “basic,” are easily changed and so vague as to allow politicians and judges enormous latitude. (more…)

Kings, Presidents, and Israel’s Prime Minister

Filed under: Cabinet/ExecutiveJudaism — eidelberg @ 10:28 pm

The Hebrew term for king, melech, primarily implies a chief “counselor,” a president whose intellectual and moral qualities warrant his elevation and authority. What follows is the Scriptural basis for kingship in Israel (Deut. 17:14-15):

“When you come to the land which the L-rd your G-d is giving you, and shall have taken possession of it and have settled therein, you will eventually say: ‘We would appoint a king, just like the nations around us.’ You must then appoint a king from among your brethren; you may not appoint a foreigner …” The last verse suggests that clause of the American Constitution which requires a president of the United States to be a native-born American. Contrast Israel. (more…)

Jewish Statesmanship for the 21st Century

Filed under: Constitution & RightsRepresentationGOVERNMENT BRANCHESBELIEFS & PERSPECTIVES — eidelberg @ 9:50 pm

Introduction

Jewish statesmanship does not exist in Israel. Jews do become prime ministers, as did Benjamin Disraeli and Pierre Mendes France. But no sober person expected Jewish statesmanship from these English and French Jews. No one expected them to incorporate Jewish laws and principles into the legislation of their respective countries, or to pursue foreign policies inspired by distinctively Jewish goals. These Jews did not think like Jews but like Gentiles. Much the same may be said of the prime ministers of Israel. If statesmanship be defined as the application of philosophy to action, then Jewish statesmanship is the application of Jewish philosophy to action. James Madison and Alexander Hamilton were architectonic statesmen. They studied the greatest philosophers, those who addressed themselves to such questions as “What is man?”, “How should man live?”, and “What kind of government is most conducive to human excellence?” A Jewish philosopher will then ask: “What is a Jew?”, “How should Jews live?”, and “What kind of government is most conducive to Jewish excellence?” (more…)

Urgently Needed: A Jewish Nationalist Camp

Filed under: GOVERNMENT BRANCHESBELIEFS & PERSPECTIVES — eidelberg @ 8:16 pm

A. GENERAL STATEMENT: Realizing that the Likud, the so-called National Union, and the National Religious Party have abandoned Zionism, and recognizing that they have no constructive goal and have tolerated the murder and maiming of thousands of Jewish men, women, and children, and seeing, moreover, that the Likud alone is facilitating a secular revolution in Israel, the present writer urges the leaders of all extra-parliamentary national-religious groups to assemble in Jerusalem and create an unabashedly Jewish nationalist camp. By a Jewish nationalist camp I have two basic things in mind: (more…)

Policy Papers - An International Jewish Parliament

Filed under: Domestic PolicyJudaismKnesset/LegislativeIsrael’s Sovereignty Papers — admin @ 2:09 pm

An International Jewish Parliament Versus The Jerusalem Summit
Professor Paul Eidelberg

Back in April 1996, the newly established Foundation for Constitutional Democracy, recognizing the demoralized state of affairs in Israel, cognizant of the fragmented and inept character of Israel’s system of government, and seeing that Israel’s political elites were trapped in the impossible policy of “territory for peace”—a policy that is undermining not only Israel but even world Jewry, proposed the establishment of an International Jewish Parliament. (more…)

Policy Papers - Jewish National Agenda

Filed under: Domestic PolicyElectorate/DemographicsIslam & ArabJudaismKnesset/Legislative Papers — admin @ 2:05 pm

A Jewish National Agenda
Professor Paul Eidelberg

A. Parliamentary Electoral Reform

As indicated in the previous article, statesmanship requires (1) well-educated statesmen, (2) a well-disposed people, and (3) well-designed political institutions. It will be obvious that of these prerequisites, indeed, of all the various elements of political life, the easiest to change are election rules. (more…)

Policy Papers - A National Camp

Israel’s Problem, and Getting Back to a National Camp
A WORKING PAPER PREPARED BY THE FOUNDATION FOR CONSTITUTIONAL DEMOCRACY

PART I. DIAGNOSIS OF ISRAEL’S MALAISE

1. In 1992, two Arab parties with five Knesset seats made the Rabin Government and Oslo possible. Seven years later three Arab parties had 10 Knesset seats. In two decades, the democratic principle of one adult/one vote will transform Israel into an Islamic dictatorship. Long before that, however, Israel will succumb to a Lebanese-type civil war. Yet no party in the Knesset has the courage to address this ominous state of affairs. (more…)

Aharon Barak

Filed under: Supreme Court/JudicialPoliticians — eidelberg @ 5:44 am

Although Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he appears profoundly ignorant of its prerequisites.

The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet judge Barak contends that Israel’s Basic Laws should be easily changed. But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.

There is a more profound defect in judge Barak’s mentality: his judicial decisions are radically egalitarian. (more…)

Judge Barak, Egalitarianism, and the Rule of Law

Filed under: JudaismSupreme Court/JudicialBELIEFS & PERSPECTIVES — eidelberg @ 5:32 am

I. Judge Barak’s Judicial Ignorance

ALTHOUGH Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he seems to be profoundly ignorant of its prerequisites.

The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet Judge Barak made the astonishing remark that Israel’s Basic Laws should be easily changed.  (The Jerusalem Post, December 20, 1995.)  But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.  Mutable laws, basic or not, cannot possibly inspire reverence for law.

Israel’s Basic Laws are in fact quite changeable.  (more…)

Can Israel Survive Its Judicial System? A Political Assessment

Filed under: JudaismSupreme Court/Judicial — eidelberg @ 5:28 am

[Were it not for attorney Arnon Kemelman, who happened to give me two articles on Israel’s judicial system while I was vacationing in Safed, the present essay would not have been written. I am grateful to him for subsequently providing other source material. Needless to say, I assume full responsibility for the analysis and the conclusions of this essay.]

Introduction

Israel’s Supreme Court adjudicates thousands of cases a year affecting the political, social, economic, ethnic, and religious character of the State. It does so with only occasional reference to laws and moral principles drawn from the heritage of the Jewish people. No other court in the world ignores the legal history of its own people. The question arises: Can Israel endure as a Jewish state when its judicial system, which subtly influences every aspect of daily life, is deliberately and primarily based on non-Jewish law? Implicated in this question is the halachic status of Israel’s secular courts. Are they halachically Jewish or non-Jewish? (more…)

Why Israel Needs An Independent Counsel

Filed under: Democratic MethodsDomestic PolicyGOVERNMENT BRANCHES — eidelberg @ 5:24 am

by Prof. Paul Eidelberg and Atty. Howard Grief

The American Legislative Model

No event in 1998 aroused greater world curiosity and fixation than the exposure of the sexual escapades of President Clinton with Monica Lewinsky. The “affair” became the target of a criminal investigation by the Independent Counsel, retired Judge Kenneth Starr. The investigation was followed by an impeachment inquiry of the Judiciary Committee of the U.S. House of Representatives. As everyone knows, the House subsequently impeached the President on two charges, namely, perjury and obstruction of justice.

What most impresses serious observers is not the scandal itself and the sordid revelations it produced, but the very fact that the President of the United States, the most powerful elected office-holder in the world, is not immune to a criminal investigation and impeachment if he oversteps the bounds of law. This truly exemplifies the principle known as the Rule of Law, which subjects even the President of the United States to the highest standards of public conduct (more…)

A Memorable Quote for Judge Barak

Filed under: Supreme Court/Judicial — eidelberg @ 5:19 am

“The Constitution places the nation’s armed forces under the civil authority and jurisdiction, not of the judiciary, but of the Congress, and then the president, when properly acting as commander in chief,” the brief says. “U.S. courts consistently defer to the judgment of military leadership under the doctrine of ‘military necessity.’”

The U.S. Supreme Court ruled in 1955 that “judges are not given the task of running the Army,” and again in 1983, “centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns. …”

Israel’’s Dysfunctional System of Governance

Filed under: Democratic MethodsGOVERNMENT BRANCHES — eidelberg @ 1:18 am

People in Israel and abroad wonder what it is that makes politics and politicians so erratic in the Jewish state.

First and foremost the lack of a written constitution in this country, one that prescribes the powers of the Legislative, Executive, and Judicial branches of government. Instead, Israel has a welter of Basic Laws enacted haphazardly over the course of decades, which laws, far from being ““basic,”” are easily changed and so vague as to allow politicians and judges enormous latitude. Accordingly, what is called the rule of law in Israel is very much the rule of a few men. Arbitrary acts on the part of the Government are commonplace. Even the Supreme Court——precisely because it controls the appointment of its own members(!)——feels free to ignore and overturn laws enacted by Israel’’’s Knesset. This anarchic state of affairs allows a prime minister to pursue his own political agenda despite the law (and, in the case of Ariel Sharon, regardless of his party label). (more…)

What Is A Jewish State?

Filed under: JudaismIsrael’s SovereigntyZionism/NationalismGOVERNMENT BRANCHES — eidelberg @ 1:16 am

Before one can talk intelligently about a Jewish state, we need to define the modern concept of the “state” as well as the term “Jewish.”

A. Definitions

1. The modern concept of the state originates with Machiavelli. The state is solely a product of human will. It is the supreme source of power, the power to make and execute the laws governing men. (more…)

A Model For Israel’s Supreme Court

Filed under: JudaismSupreme Court/Judicial — eidelberg @ 1:02 am

Israel’s Supreme Court is a creature of the Knesset, and the Knesset is very much subservient to the Government, i.e. the Cabinet. In principle, and for the most part in practice, the Court lacks the power to adjudicate governmental acts of questionable legality. As a consequence, previous governments of Israel have at times ignored some of the basic and even criminal laws of state—or so it has been maintained by eminent Israeli and American law professors.

Needed in Israel is a Supreme Court comparable to the American Supreme Court whose power of “judicial review” vis-à-vis acts of government is very much indebted to the Torah, specifically, the (Great) Sanhedrin. (more…)

The Sanhedrin

Filed under: JudaismSupreme Court/Judicial — eidelberg @ 12:49 am

Because of the anti-Jewish as well as anti-democratic tendencies of Israel’s Supreme Court, especially under the leadership of Chief Justice Aaron Barak, serious Jews have turned their attention to the Great Sanhedrin and the possibility of re-establishing this ancient institution. They know, of course, that no Sanhedrin can exist without the Temple, the Beit HaMikdash.

Moreover, and according to Maimonides, the building of the Temple presupposes the appointment of a king and the destruction of Amalek. But this means that the establishment of the Great Sanhedrin will require the advent of the Moshiach.

It’s commendable that some Jews are thinking in these terms, but no one should be under the illusion that establishing the Sanhedrin is comparable to establishing a rabbinical court. (more…)

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