The publication last week of two documents: one, the State Attorney’s Office protocol suggesting a cover-up by its top members; the second, a remarkable interview with Hebrew University law professor Ruth Gavison, raises many questions about the legal system’s ethos and role. Gavison, a distinguished jurist, criticizes the legal establishment for acting as a closed guild, and for trying to impose a Western, secularist, liberal ethos on a pluralistic society. But actually, the legal establishment, especially the Justice Ministry, is thoroughly illiberal.

Sure, it believes in “human rights”, but it seems convinced that the coercive state, the collective, is the prime instrument for their attainment. This is why it so regulates and legislates every sphere of life; why it encourages the extension of the state’s power so far, why some in it believe that everything can be adjudicated, and why it cannot brook opposition from institutions promoting other values, such as religion. Many Israeli laws open by forbidding everything, and only then make little room for citizens to act. As a result, we have a most litigious society. The courts are so clogged that they cannot deliver timely, reasonably priced, and enforceable justice. Many thousands of cases drag through inefficiently administered courts for ages, costing litigants a fortune for often unenforceable decisions. A toothless law encourages offenders to flout it with impunity. It promotes the dangerously lawless society we have.

The courts pride themselves on guarding human rights, but they tolerate many thousands of false arrests and allow the police to hold suspects in custody indiscriminately and for long periods. Suspects’ reputations are routinely ruined by leaks from publicity-hungry police – as happened recently to the unfortunate elderly couple falsely accused of misinforming the Knesset of Amnon Rubinstein’s death.

Some say you can get justice in Israel only if you pay hundreds of thousands of shekels to elite lawyers respected by the courts, or if you press issues that enable the judges to extend “human rights” to their utmost limits, by practicing unbridled judicial activism. As a result, the law’s basic responsibility, the daily protection of citizen’s persons, basic rights and property is neglected. In her Ha’aretz interview last Friday with Ari Shavit (one of Israel’s few truly independent journalists) Gavison distances herself from any criticism that may appear political, such as Shas’s. Yet she confirms that the attorney-general, the State Attorney’s Office and the Supreme Court all adhere to a strict “ideological collectivity” that represses most criticism.

They are made immune by an adulating media, which sees in them a bastion of Western secularism (of the leftist persuasion, I may add). They are also involved, she charges, in severe conflicts of interest (which they are quick to prosecute in others). They are self-appointed and self-perpetuating, without the minimal checks and balances or outside input or review. Practicing a double standard, they often apply the law selectively. ”...Certain people who have in fact done problematic things are being investigated or prosecuted, but at the same time, other people who did equally grave things are neither being investigated or prosecuted,” she charges.

Gavison feels that there is “an element of persecution in the present system.” It tolerates too many “rotten apples” within it, closing ranks against criticism. The system is “so deeply flawed” she believes, “that it is no longer clear whether it has the strength to pull itself up by its bootstraps.” A depressing conclusion. She is not the only one to have reached it. In “I Have Seen Them All”, Dan Margalit writes, in the context of the Aryeh Deri affair: ”...if the State Attorney’s Office would have dug deep into this difficult issue of public figures and their families receiving expensive gifts and being entertained lavishly… by wealthy Jews abroad – some of Israel’s mythological figures would have sat in the dock” (p. 275); Margalit then concludes (p. 286), “already in 1981 I… did not believe any more that the State Attorney’s Office did not have its own interests, its personal scores to settle, that it was above petty vengefulness.”

The legal establishment’s bias, Gavison believes, stems from giving “priority to the values of one group…”, presuming to be “a supreme moral arbiter.” It undercuts their ”...legitimacy as supreme judicial authority…[and] endangers the legitimacy of the legal system,” she states.

Arrogating power, acting without proper transparency, the legal establishment “sweepingly avoid[s] public discussion” of the constitutional changes it promotes under the guise of administrative reform, she further claims. “We are liable to wake up one morning and discover that we have a rigid constitution without having known or seen or read or being asked for our opinion about it.”

Some of our best and brightest serve in the legal system. But it is an extremely statist system, that extends its power beyond any reasonable reach. This means that the law becomes ineffective, and that, if we are not careful, finding justice will become even more difficult than it already is.

Permalink: