‘Human Dignity and Liberty’ damaged democracy

Israel is engulfed in a moral crisis, not a judicial one, and it needs to be addressed as such.

The Israeli Supreme Court in Jerusalem. Credit: Wikimedia Commons.
The Israeli Supreme Court in Jerusalem. Credit: Wikimedia Commons.
Hanan Shai (Credit: Israel Hayom)
Hanan Shai
Dr. Hanan Shai is a lecturer in the political-science department at Bar-Ilan University.

Two constitutional revolutions led to the crisis currently engulfing Israeli democracy: the idea that everything can be decided by the Supreme Court, and the Basic Law: Human Dignity and Liberty. The concept of giving the Supreme Court the final say transformed Israel’s political discourse, which dating back to the Second Aliyah had been based on ideology and morality, to a technical discussion of law and legalities.

The legal discourse deleted any discussion of ethics and conscience from Israeli democracy, eradicating ethos, respect and shame, ousting people of vision and spirit from the leadership of the nation and filling the country to bursting with lawyers.

But it was the Basic Law: Human Dignity and Liberty (1992) that dealt the most severe blow to Israeli democracy. The law was enacted under the influence of European philosophical concepts involving the idea of the “other,” concepts spearheaded by the French Jewish philosopher Emmanuel Levinas. Levinas does not seem to have envisioned the danger of such ideas.

Like an autoimmune disease, giving priority to the “other” over oneself merely because they are different, persecuted, poor, or weak—even if they are criminals or despicable terrorists—became a badge of morality in Europe.

Judaism expresses how others should be treated with the prescripts to “love your neighbor as yourself” and “love [the stranger] as yourself.” (Leviticus 19:18,34). Like other moral values in Judaism, the obligation to love the other stems from altruism, that also exists in nature, designed to protect not only the person who is helped, but also the person who helps.

The European version turned the teleological, mutually beneficial assistance into something that threatens the existence of the giver—making it suicidal and immoral. Zionist thinker and author Ahad Ha’am (Asher Zvi Hirsch Ginsberg) opposed that version of altruism, claiming that he had “no right” to destroy his life for the sake of another’s life.

From the earliest days of the Zionist enterprise, Jewish morality has flowed through the veins of Israeli democracy. David Ben-Gurion argued that Western democracy was not enough for Israel, that the state had special Jewish content that should be shared with the world, and that the values of life and human liberty ran deeper “with us” than in Western democracy.

The Basic Law: Human Dignity and Liberty instilled the European perception of morality into Israeli democracy. Like any living thing that is distressed when it receives an infusion of the wrong type of blood, this “transfusion” caused a deep crisis in our democracy.

This moral crisis lies at the heart of the rift between the Supreme Court and the elite that supports it and the rest of the citizens of Israel. “The man on the street” senses that the morality which stems from the perception of “human dignity” goes against the perception that “truth springs up from the earth,” and “righteousness smiles down from heaven.” (Psalm 85:11). For that reason, amendments to the law alone will not suffice to resolve the crisis.

The damage caused must be addressed in terms of morality, by a renewal of a democratic, ideological debate that will make the “outlook” that guides the justice of the Supreme Court transparent. Their current “worldview” must be replaced by what the founders of Israeli democracy intended: Jewish morality, according to which lawmakers and judges alike will operate.

We need brave public leaders and intellectuals to lead a democratic discussion about the values of this kind of morality and how they can be adjusted to modern-day law—people like the ones who put together the Kinneret Convention. It would be better if this came before any constitutional reform, which the moral reform might render superfluous.

Dr. Hanan Shai is a lecturer in the political science department at Bar-Ilan University.

This article first appeared on Israel Hayom.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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