“Added Value”: The Values Behind Israel’s Judicial Reforms

“Democracy is in danger!” Both sides of the heated dispute over Yariv Levin’s judicial (or constitutional) counter-revolution seem to agree with this statement. Levin and his friends in the Netanyahu government claim that the authority vested in the Supreme Court and Israel’s legal advisors endanger democracy by taking power from the hands of the people, the legitimate sovereign in a democratic regime. The reform’s opponents, in contrast, present a different conception of democracy, a “substantial democracy” (a term used in this context in Israel alone) that emphasizes values of human rights, autonomy and freedom, privacy, and protection of minorities. Weakening the court and legal advice, in their opinion, hurts the very soul of democracy.

The latter side of the quarrel has been especially vociferous. Former supreme court Justice and leader of Israel’s initial constitutional revolution (as he called it), Aharon Barak, stated in an interview that “there is no greater evil than this constitutional revolution, which is parallel to a revolution with tanks.” For good measure, he added the incendiary note that “he was ready to face a firing squad” if this would serve to advance the cause against the reforms. Thousands have taken to the streets in demonstrations; the Association of State Prosecutors has threatened strike action; universities have warned of how the “scheme to annihilate judicial threatens society in general, and academic research specifically; and the media, naturally, is having a field day.

Both sides, therefore, claim the mantle of defending the sanctity of democracy, and the only question is how to interpret it. This has several ramifications. Is the attorney general supposed to represent the government as a political appointment, as customary for the US (and most democracies), or should he be a professional and represent his positions alone (as in the current situation in Israel)? How should a democratic regime appoint judges to the Supreme Court – by the court or by politicians? Should courts in a democratic regime hold tools in the style of “reasonableness,” which bestows broad authority to strike laws and government actions, or should its intervention be limited to extreme cases based on clear and (more) specific reasons: violation of fundamental rights, arbitrariness, deviation from the due procedure, conflict of interest, and so on? And what is specifically right for Israel, a country without a formal constitution?

As individuals interested in molding a society based on the elevated values of Torah and Jewish tradition, many might wonder: which side are we on? Do we support a formal democracy that strengthens the power of the executive branch, or should we support the rights-based agenda of the court and its various branches?

As individuals interested in molding a society based on the elevated values of Torah and Jewish tradition, many might wonder: which side are we on? Do we support a formal democracy that strengthens the power of the executive branch, or should we support the rights-based agenda of the court and its various branches? Even Charedi friends and acquaintances, who generally believe the court weakens their representative power in the Knesset and the government, acknowledge that during the Bennett-Lapid government, the court gave important assistance on key issues (such as financial benefits for Kollel students that were threatened and the matter of “kosher cell phones”). So which side are we on?

To give some fresh direction on the issue, I will focus in the present article less on the power struggle between the competing powers – much has already been written on the issue, and plenty more will surely be written – and more on a related issue that has been broadly overlooked: the question of values.

Alongside the attempt to curtail the sweeping authority of the Supreme Court, it seems to me that we should be looking at the values it promotes or the general authority it has assumed to advance them. Decisions of the Supreme Court are laden with distinct values. Upon his retirement from the judiciary in 2006, the late Vice President Mishael Cheshin said (in an interview with Haaretz) that “Aharon Barak would prefer that 30-50 people be blown up in terrorist attacks rather than human rights be violated. I’m not ready for this. He thinks so; I think differently. To my great joy, I was in the majority.” Cheshin, in that case, was part of a 5-4 majority that rejected a petition against government policy; in most similar cases, Barak won the day.

The question of the balance between the security of the country’s citizens and the right (in the relevant case) to family reunification for Arab Israelis is a question of values, as are a plethora of court decisions that have a profound effect on our public and private lives, including areas such as work, relationships, children, and all that our everyday life includes. In my opinion, the court’s influence on our value system ought to garner support, at least partially, for some of the proposed reforms. Irrespective of which way the fate of the reforms ultimately falls, we should pay close attention to the phenomenon.

 

The Entire Land is Filled with Justice

Aharon Barak, the retired president of the Supreme Court and the person who, to a large extent, shaped the current image of the Supreme Court, is universally credited with expanding the scope of Israel’s Supreme Court’s judicial authority. Today, this scope includes broad public issues that were previously not within the court’s domain, such as the precise boundaries of Israel’s security fence, the disengagement plan and its details, army recruitment of Yeshiva students, political appointments – the recent case of striking Aryeh Deri’s ministerial appointment is a timely example – and more.

In the past, petitions to the court on issues of this kind were rejected outright due to lack of standing, along with the more general argument that such issues should be resolved by the Knesset and not by the court. Under Barak, the court moved to a new model of “universal justiciability.” A clear expression of this concept is found in his decision dealing with the recruitment of Yeshiva students:

Every action is permitted or prohibited in the legal world. There is no action to which the law does not apply. Every action is perceived in the legal world. […] According to this approach, a situation in which there is no legal norm applicable to an action is not possible at all. […] The fact that the matter is “pronouncedly politicized” cannot negate its also being a “legal matter.” Everything is a “legal matter” in the sense that the law determines a position concerning whether it is permitted or not (paragraph 36).

In Barak’s opinion, the fact that an issue is subject to lively public debate and that large parts of the civilian population identify with one side or another is no reason to avoid a judicial decision regarding the question at hand. If anything, the opposite is true. Since the issue has turned from a marginal phenomenon into a broad public issue, there is more room for the court’s intervention. “Quantity,” as he wrote, “makes quality”

The expression “pronouncedly political” does not refer to party politics but to matters subject to deep and broad social discussion, such as the ongoing deferral of conscription of Yeshiva students. In Barak’s opinion, the fact that an issue is subject to lively public debate and that large parts of the civilian population identify with one side or another is no reason to avoid a judicial decision regarding the question at hand. If anything, the very opposite is true. Since the issue has turned from a marginal phenomenon into a broad public issue, there is more room for the court’s intervention. “Quantity,” as he wrote, “makes quality” (paragraph 69).

The concept that “the law is everywhere” is hardly foreign to Jews generally and mitzvah-observant Jews in particular. Every mitzvah-observant Jew knows the infinite applicability of the Halacha. The Shulchan Aruch, the most significant halachic book in the world of an observant Jew, begins with the laws of how one wakes up in the morning and continues until it reaches the laws of reciting the Shema before sleep. From there, it continues to include the laws of modesty and other areas of reciting blessings, laws related to meals, and festivals. Not a single corner of human life is omitted – from laws of birth to the laws of mourning, laws of eating matzah to those related to commerce and business, laws of Shabbos to those of kashrus. In the ideal situation, the arbiters of the Halacha, or in a higher sense, the elders of the nation sitting on the Sanhedrin, would decide even on questions of public policy, as Rabbi Yochanan ben Zakkai did when deciding in favor of Yavne and its sages” at the expense of Jerusalem.

The Sanhedrin is a not-very-inaccurate analogy for the Supreme Court in its “Barak” version. Just as the Sanhedrin has full authority on every normative question that arises from among the people, so the Supreme Court has absolute authority on every issue. Just as the Sanhedrin is superior in the normative ranking to the king and his custom, so the court has normative superiority over the Knesset. And just as the Sanhedrin elects its members without external interference, so in an ideal situation, the Supreme Court would elect its judges “on a professional basis” (to use Barak’s terminology) without external interference.

It goes without saying that just as the determination of the Halacha by the Sanhedrin affects the values of the Jewish people – the Halacha is a system that constitutes values and not a system of dry actions – so decisions issued by the Supreme Court determine a set of values that gradually permeate into the country and its citizens. Some in Israel will look favorably upon this, under the assumption that judges of the court are exalted people who deserve to set the standard. However, in my opinion, the Sanhedrin model is not suitable for the court within Israel’s judicial system today. I will demonstrate my position by reference to two cases that came before the court, the first regarding hitting kids for educational purposes and the second concerning the consequences of infidelity between spouses.

 

Moral Coercion: Educational Smacks

In 2002, a criminal appeal by a woman convicted in the district court of assaulting and abusing her children reached the Supreme Court.[1] Although this was wholly unnecessary for the specific case, which dealt with an act of physical violence that undoubtedly crossed any reasonable line of hitting children for educational reasons (paragraph 23 of the decision), Justice Beinish, a former intern and student of Barak and later President of the Supreme Court, decided that hitting for educational and disciplinal purposes is never a defense (paragraph 25-26). This decision instantly turned thousands of Israeli parents into criminal offenders.

According to Beinish, just as school teachers must not hit students, and those who do so are prosecutable by the court, so parents are likewise forbidden to hit their kids:

The law imposes a duty on State authorities to intervene in the family circle and protect the child when needed, inter alia from his own parents. The basic approach of the law is that the child is not the property of his parents, and they may not do with him whatever they wish. When the parent does not carry out his duties properly or abuses the discretion or the parental authority in a way that endangers or harms the child, the State will intervene and protect the child. […] The defenses available to parents in certain circumstances against their children’s claims in tort for exercising their parental authority do not, in themselves, give an exemption from criminal liability where it has been proved that the elements of the offense imposing such liability on parents under the Penal Law are fulfilled” (paragraph 26).

Beinish reached this conclusion based on Israel’s Basic Law: Human Dignity and Freedom. According to her, hitting children – even “a light hit on the bottom or on the palm of the hand” (paragraph 30) – “violates the basic right of children in our society to dignity, and to the integrity of mind and body” (paragraph 28). In contemporary society, “the child is an autonomous person,” and hence “society has the duty to protect him and his rights.” What is more, the Basic Law: Human Dignity and Freedom “grants binding validity to the respect and protection that society must provide the weak and helpless within it, including minors who fall victim to violence by their parents.” From this, it must be established that “corporal punishment of children or their humiliation and degradation by their parents as an educational method is totally improper, and it is a relic of a socio-educational outlook that is obsolete” (paragraph 29).

This is quite amazing. As the decision itself notes, many parents use force that is not excessive towards their children for purposes of education and discipline. I do not know how to quantify those “many,” but at the time the decision was given, it is safe to assume that a significant majority of Israel’s population, even those who refrained from hitting children for educational purposes, would not have perceived parents who did so should as criminal offenders. Beinish, however, renders this a “primitive practice” from which society – that is, the Supreme Court as society’s representative – must protect children “who fall victim to violence by their parents.” In other words, Beinish ruled that her moral view was superior to that of average citizens of Israel and was perfectly ready to turn hundreds of thousands of Israeli parents – those who would consider smacking their children for the educational purpose of keeping distance from fire or a busy road – into potential criminal offenders.

Only in Israel has the court banned hitting children as a blanket criminal-judicial prohibition without a gradual process and an accompanying educational program. Judges believe that this is a primitive act; the Basic Law: Human Dignity and Freedom is at their disposal, and hey presto – half the country becomes criminals.

It is worth noting (as Binyamin Shmueli already commented in his comparative study [2]) that the ruling created a unique situation compared to arrangements in other countries. In addition to Israel, only in Cyprus was hitting children for educational purposes forbidden by criminal prohibition, and this was done by the legislator through a gradual legislative process accompanied by a broad educational operation. In some European countries, the issue of hitting children was treated by the channel of civil law, alongside an accompanying educational program. England and Canada make legal distinctions between education and violence, and in the USA, the issue remains outside the legal arena in most states. Only in Israel has the court banned hitting children as a blanket criminal-judicial prohibition without a gradual process and an accompanying educational program. Judges believe that this is a primitive act; the Basic Law: Human Dignity and Freedom is at their disposal, and hey presto – half the country becomes criminals.

A ruling of this type certainly deserves a higher body, like the Sanhedrin. It is unworthy of the court, whose business it is to decide disputes according to existing law and not to educate the public about the moral concepts it advocates. I would also note that Beinish’s statement, whereby in contemporary society children are autonomous people, expresses a view of family structure that grants authority to the intrusion of the state into the family unit, even when the involvement is contrary to family and community values. This is an important topic that has multiple ramifications and deserves extensive treatment. For now, however, I will move to the second area: the matter of sexual fidelity within a marriage relationship.

 

Normalizing Infidelity

Recently, a decision was given in another Supreme Court ruling on the question: “Can the lack of sexual fidelity be a consideration affecting the way assets are divided between spouses during separation in general, and the division of a residential apartment in particular?” (the wording is taken from the opening words of Justice Dafna Barak-Erez’s decision).[3] I will briefly describe the case.

The ruling deals with spouses who divorced after more than thirty years of marriage. As part of the divorce action before the Rabbinical Court, the husband claimed that his wife had been cheating on him for several months, and the main dispute revolved around the question of ownership of the residence in which the family lived. The house was built in a combination deal on a plot of land inherited by the husband a few months before the marriage. Since this is a property that was owned before the date of the wedding – an “external asset” – it was not included in the “resources balancing arrangement” established by the Spouses Property Relations Law and remained owned, in principle, by the husband. The said law states that assets acquired during the marriage and until its breakdown are considered marital property to be divided equitably between the spouses. In contrast, assets acquired before the marriage that are not co-mingled with marital assets remain separate property.

Despite this, there remains the possibility of dividing assets between spouses based on the judicial doctrine of “specific sharing,” by which it can be determined that an external asset became shared property even when no express contract was drawn up. The doctrine is mainly applied to shared residential apartments, given a long-term marriage, cohabitation over many years, and “an additional factor” that indicates the intention to share (such as a long-term financial investment by the spouse who claims a share). Overturning the decision of the Regional Court in Haifa, the Rabbinical High Court ruled that the woman in question was not entitled to half of the apartment. Among other considerations, including the lack of an “additional factor” of sufficient weight, the decision mentioned the woman’s it mentioned infidelity. Hence the question, discussed by the Supreme Court and again in an additional hearing: did the Rabbinical Court err in employing the consideration, and is it appropriate for the Supreme Court to intervene in the matter?

In response to this question, a disagreement emerged between the justices. Justice Stein, who was among the two majority justices in the first decision of the Supreme Court, ruled that there was no fundamental error in noting the wife’s infidelity, among other considerations. On the other hand, the opinion of Justice Amit,[4] which became the majority position in the additional hearing of the Supreme Court, was that it was an error that justified the court’s intervention in overturning the decision.

The doctrine of “specific sharing” is based on a contractual arrangement, at whose center “stands the intention to share of the owner of the property, who decides whether and under what conditions to share the said personal property with his or her spouse” (Stein, paragraph 23). In the present case, it was, therefore, up to the court to trace the intention of the property owner and ascertain whether there was an agreement to share the private property with his spouse and whether such an agreement was made conditionally or unconditionally (Stein, paragraph 16). In Justice Stein’s opinion, “the aforementioned test can also relate to a scenario of infidelity on the part of the spouse who wishes to receive equal rights in his spouse’s personal property.” That is, alongside other considerations that the court must examine in tracing the intent of the owner of the property, it is appropriate also to include an act of betrayal, which may certainly affect – depending on the nature of the family unit and the relationship between the spouses – the intent to share an asset. As for the claim that the infidelity only occurred at the end of the long period of marriage, Justice Stein held that it could be assumed that an earlier intention to share is conditional on continued sexual fidelity. The act of infidelity, even at the end of the marriage period, affects the intention of sharing on the part of the property owner, and he thus found that the Rabbinical High Court did not err in specifying infidelity as a relevant consideration.

The dissenting opinion, it should be noted, includes a range of different arguments. Some of them relate to the doctrine of “specific sharing” (is the issue merely contractual, or is it possible to form a sharing arrangement even outside this framework), and some examine additional errors in the Rabbinical Court decision. For our discussion, I will deal with the narrow question of the effect of infidelity on property division. According to Justice Amit, consideration of infidelity invokes religious law, which the court is not permitted to do concerning the division of property: “In doing so, the court pretended to apply religious law to property matters, contrary to the accepted law, and thus exceeded its authority” (paragraph 8 of the first Supreme Court decision). However, this fact is not in itself sufficient. According to the reasons given by Justice Stein, the issue of infidelity can also be relevant to the formation of the property owner’s intention to share his property with his spouse. Why, then, is there no room for including infidelity as part of the “specific sharing” question?

The main answer given in the decisions is “policy considerations.” We wish to avoid the submission in a court setting of evidence relating to infidelity and adultery (Amit, paragraph 18). We want to ensure healthy marriages, which are jeopardized when one spouse (the property owner) can police the actions of the other spouse (Hayyut, paragraph 54). The reliance of the spouse claiming asset sharing was also raised. However, I believe that the value issue lies at the heart of the decision. President Hayyut and Justice Amit agreed that prolonged infidelity could indicate a lack of specific sharing. Amit wrote that “I do not rule out that there may be cases in which prolonged infidelity will testify to the lack of sharing between the spouses” (paragraph 14). President Hayyut also pointed out that it is possible to justify the cancellation of the specific sharing “when the sharing spouse discovers over the years that his partner managed, throughout their married lives, that he lived a ‘double life’ with another partner” (paragraph 50). The opinion dissenting with Justice Stein (except for Barak-Erez) thus concedes that unlike a one-time infidelity or one that lasted “only a few months,” a particularly egregious betrayal could affect the property owner’s intention to share. And herein lies the rub: from whence derives the judicial yardstick to determine the moral severity of actions in relation to the marital relationships of litigants?

The question […] is individual, the answer to which must be found in the spouses’ way of life and values. It is, therefore, a question on which it is not possible – and certainly not desirable – to establish sweeping rules that are indifferent to the beliefs, values, and intimate life circumstances of the spouses. Each couple will live according to their faith and, according to such faith, will divide – or not divide – the personal assets of each of the spouses. We will not replace their faith with our beliefs

This bewilderment was raised by Justice Stein himself: “The question […] is individual, the answer to which must be found in the spouses’ way of life and values. It is, therefore, a question on which it is not possible – and certainly not desirable – to establish sweeping rules that are indifferent to the beliefs, values, and intimate life circumstances of the spouses. Each couple will live according to their faith and, according to such faith, will divide – or not divide – the personal assets of each of the spouses. We will not replace their faith with our beliefs.” Judge Stein strongly protests the willingness of his colleagues on the bench to impose value norms on the litigants: “I continue to stand behind my opinion even now. Intimate relations between spouses and the way each of them manages their personal property are the private business of the spouses and not the business of the state” (paragraph 19).

His colleagues on the court bench did not concur. In several places in the decision, they imply a moral position that minimizes the gravity of sexual infidelity. According to Vice President Meltzer, “There is a concrete hardship in identifying a single factor responsible for ending a relationship. This is a delicate, sensitive, and charged matter in which different behaviors intertwine in creating a tangled web that the court should not investigate on a financial level and thus make retroactive changes” (paragraph 3 of his judgment). In simpler words, infidelity, in the context of a delicate and charged relationship, is not so terrible. Justice Barak-Erez added that “there is no room to isolate the reference to the questions of ‘betrayal’ and fidelity on the sexual level,” and that “a reference to sexual infidelity as separate from a host of other offensive and harsh actions is incorrect” (paragraph 9). In her opinion, even prolonged infidelity (the word “infidelity” or “betrayal” always appears in double quotation marks, as though to say “what others call ‘infidelity’”) should not affect the question of the sharing assets, since recognizing this “means that there is room to recognize such negation even in cases of other allegations of betrayal of trust against one of the spouses.”

I see clear similarities between this ruling and the decision cited above concerning smacking children for educational reasons. Of course, justices were well aware of the fact that vast sections of Israeli society see infidelity as a matter that affects the marital relationship in a uniquely destructive way. As Justice Stein commented (supporting his statement from various international studies), “in the eyes of many, cheating is no small matter, even as a one-time act” (paragraph 20). This is certainly (though not exclusively) true when it comes to observant or traditional families, for whom even a one-time act of infidelity will be an immediate cause to end the relationship, both for halachic and moral reasons. However, with the exception of justices Stein and Mintz, the court refused to take this into account.

The decisions make a concerted effort to banish the entire issue of sexual infidelity from the courtrooms. This was successfully accomplished in the past in the context of grounds for divorce (the transition to a no-fault divorce model) and resource balancing (of assets accrued over the course of the marriage), and today the issue cannot be raised even in the context of the personal intention to share property. There may be valid legal policy considerations for this, but behind them lies a value judgment that effectively normalizes infidelity. Nobody was surprised when, in October 2022, a Supreme Court decision concerning resource balancing overturned a Rabbinical Court decision that took into account ten years of infidelity on the part of a spouse. “This decision,” wrote Vice President Fogelman, “follows the track of our previous decisions that separates between blame considerations and the division of assets among spouses.”

We should not think that such judicial decisions do not affect us. They penetrate us via the channel of the law, which joins other channels that project similar messaging – primarily academia, popular culture, and the media. As far as the first issue we discussed, smacking children for educational purposes, the damage is not extensive. This is not the case for the second issue. The court’s decision joins an extensive effort on the part of mainstream media and popular culture to normalize infidelity. These, I should add in conclusion, are only a few examples from a huge web of value-based rulings that affect citizens of the State of Israel – communities, families, and individuals.

 

Enlightened Restraint

Many have criticized the now-infamous expression “the enlightened public” that Aharon Barak used as a standard by which judicial decisions should be made. In particular, Barak mentioned the expression in the context of the court’s interpretation of values: “When the values of the State of Israel as a Jewish state cannot be reconciled with its values as a democratic state, there is no escape from deciding between them. In my opinion, this decision should be made according to the perceptions of the enlightened public in Israel.”[5] One of the main critics of the “enlightened public” doctrine was the late Justice Menachem Elon:

It was recently said that the content of “Human Dignity” should be determined according to the views of the “enlightened public” in Israel, against the background of the purpose of the Basic Law: Human Dignity and Freedom. This opinion, with all due respect, is unacceptable. I wonder how and from where did the “enlightened public” enter the definition of Basic Law: Human Dignity and Freedom and its fundamental rights? Who is this public? Who gets to be appointed to it or not to be appointed to it? What is the nature of this enlightened person, and what is the meaning of his enlightenment?[6]

Restraint of the Supreme Court is not only a matter of power relations. Parallel to the power issue lies the question, no less critical, of core values. The above examples illustrate the extent to which value-laden decisions of the Supreme Court touch our daily lives. On the public level, a distinct set of values likewise forms the foundation of many decisions: the illegal immigrant law (in which the court intervened three times), the demolition of terrorist homes (and the cancellation of their citizenship), the budgeting of Charedi education, the route of Israel’s security fence, family reunification (as noted above), and many besides. The values of the “enlightened public” of the 21st century differ, in many contexts, from those of the general public in Israel. Decisions made in their light certainly deserve restraint.

The value market should be free; certainly, there is no justification for it to be biased by the court, which determines state values based on the moral superiority of the “enlightened public.” Several years ago, the late Prof. Ruth Gavizon said that the values of the “enlightened public” are not superior to the values of the general public, including followers of Rabbi Ovadia Yosef: “As a higher moral authority, it is not clear to me that the court is better than [Rabbi] Ovadia Yosef. And it is not clear that the extra-legal values of the enlightened public, on whose behalf it acts, are superior to the extra-legal values of the religious public, for example.” To this, she added:

I also don’t think the role of the court is to be the supreme moral authority in society. That is not what justices were appointed for, nor is it clear that they have the requisite skills. Justices in Israel are not chosen based on their integrity or their code of ethics, or the degree of social leadership they demonstrate. They are selected based on their professional ability as jurists. There is nothing in their training that gives them the right, the authority, or the ability to be the setters of moral codes or to be the teachers of the generation.[7]

I believe the value issue adds an important element to the reforms proposed by Yariv Levin and the Netanyahu administration. But the truth is that this or that reform can only be effective to a small degree. They may prevent some undesirable decisions, yet they will not fix the problem at its root. The proper function of the Supreme Court, including the degree of public trust vested in the court, depends mainly on itself: on adopting a more modest approach that recognizes a narrower role for the court and refrains from issuing value-laden decisions on major controversial issues. For this matter, I will end by quoting the words of Justice Stein from the above ruling:

In their role as the long arm of the state, courts must therefore avoid establishing norms that contain one or another value position in relation to sexual fidelity or the way spouses should share their private property. In these matters, the role of the courts, as I see it, is reduced to factual clarification of the agreements that the spouses have made between themselves, explicitly or implicitly, and to the enforcement of these agreements as they are, whenever they are not contrary to the law or to public policy (paragraph 19).

The application of this approach will benefit all parties, including both litigants and the court itself. I hope that the difficulty and pain in the current controversy between the government and the judiciary – and there is much – will ultimately lead to some benefit. And I pray that we will soon be granted the fulfillment of the prophecy: “I will restore your judges as at first, and your counselors as at the beginning; after that you will be called ‘City of Righteousness,’ ‘Faithful City’” (Yeshayahu 1:20).