By law, Israeli courts are supposed to close on Shabbat – the Jewish day of rest. Yet last Shabbat, the High Court of Justice heard a petition challenging the cap on the number of participants allowed at a Tel Aviv demonstration.
Explaining the extraordinary step, the court said: “It is clear that this is a matter of pikuah nefesh” – of preserving life. Really? What would have happened had the hearing been postponed until Sunday? The Home Front Command’s limit of 150 participants at the Saturday-night protest would have remained in force.
True, in the court’s view, reducing the number of demonstrators (to the same number the Home Front Command set for every other public gathering) amounted to a disproportionate infringement of freedom of expression. But what does that have to do with preserving life?
To the court’s credit, it tried to hold the hearing before Shabbat, but the effort failed because the police dragged their feet (they deny it) and the Home Front Command did not submit its position on Friday. The court also tried to minimize the desecration of Shabbat by holding the hearing by phone rather than in open court. Even so, as a state institution, it should have refrained. Sheltering behind a supposed claim of pikuah nefesh does it no honor.
More fundamentally, what the court lacks is not resolve or professionalism but sensitivity and a feel for the society in which it operates. Its latest ruling makes that plain enough.
Still, even those who believe, as I do, that the court erred cannot countenance the unbounded assault loosed upon it, after its decision, by rabbis – including the current and former Sephardi chief rabbis – on the very legitimacy of the institution and its judges.
Rabbi David Yosef, the current chief rabbi, called the judges “impudent” and accused them of lawlessness and of trampling both law and Torah. After declaring the High Court an enemy of Judaism, he announced that “we will fight them with all our might.” His brother, Rabbi Yitzhak Yosef, the former chief rabbi, went further: “infidels,” “haters of Israel,” and finally “wicked men whom the Almighty should destroy – should kill.” Later, he softened the remark, explaining that he was assigning that task to God, not to human beings, since “violence is forbidden.”
These statements should not be brushed off as lip service, as we do, for example, with the extremist rhetoric politicians sling at each other. Rabbi David Yosef is president of the Great Rabbinical Court. He is the equivalent in religious law to Judge Isaac Amit, chief justice of the Supreme Court. In other words, the head of the state’s highest religious judicial body is calling for war against the head of its highest civil judicial body.
This declaration of war is not over any concrete dispute. Its purpose is to undermine the legitimacy of a parallel state judicial institution – to challenge its composition, authority, and decisions. Imagine the storm that would be unleashed if Chief Justice Amit had determined that Israel’s chief rabbi was impudent, lawless, and an enemy of the State of Israel.
Long halachic history of dismissing Israeli courts
The chief rabbis’ outburst has deep roots. Their father, the late Rabbi Ovadia Yosef, along with many other rabbis, held that Israel’s courts are “gentile tribunals.” Decoded, this phrase implies that Jews may not turn to them. It echoes Maimonides and the Shulhan Aruch, “whoever comes before them for judgment is wicked.” This is, to put it mildly, a deeply problematic halachic-cultural position. The ban on litigating before gentile courts was, of course, formulated in exile.
How can one ignore the transition from the reality of a Jewish minority community – seeking to differentiate itself from a dominant non-Jewish environment and its value system – to the reality of a sovereign state in which Jews are the overwhelming majority, whose governing norms are enacted by the Knesset, whose judges are mostly Jewish, and whose lecterns bear the blue-and-white flag and the symbol of the menorah? Are these really “gentile tribunals”?
Postponing the High Court hearing would not have created a condition of pikuah nefesh; it would not have endangered a single life. Incendiary calls to war by the heads of the state’s religious judiciary against the heads of its civil judiciary, by contrast, are a national matter of life and death.
The writer is president of the Jewish People Policy Institute and a professor emeritus of law at Bar-Ilan University.