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Gavison’s Last Will and Testament

Among all the jurists of the last generation, the late Ruth Gavison stood out as an intellectual beacon. She was blessed with unusual acuity and intellectual brilliance, creativity and courageous thought, a broad education, curiosity, and meticulous attention to detail. Her professional writings, carved out by an analytical razor, and nourished by a sharp critical sense, were marked by sparks of inspiration, leaving a powerful professional impact on leading jurists throughout the western world.

The academic career that won her the Israel Prize was not enough for Ruth. Her commitment to the State of Israel and to Israeli society was unparalleled, and Ruth served the role of a public intellectual of the first order. This was expressed in her many positions: President of the Association for Civil Rights in Israel; a fellow of research institutes, including the Israel Democracy Institute, where we worked together; a member of many public committees; Rabbi Yakov Meidan’s partner in drafting a covenant to formulate the relations between religion and state, and much more. Audiences at her lectures, found themselves breathless as they tried to follow her complex and sophisticated trends of thought, spun with stunning fluency and giving a voice to her fiery spirit. When Ruth, her mane of white hair waving from side to side, spoke –magic filled the room. 

If she were to read these remarks, she would have seethed at my wasting words about her–the individual, rather than about her ideas. What then, are the main points of her ideas on the key issue with which Israeli society is grappling today—the relations between the political and the judicial?

Over the past two years, Ruth was part of a group of professors who are preparing an online course on Israeli identity—a unique course to be offered by all institutions of higher education in Israel. Last week, during a discussion about the content of the course, Ruth, at my request, sent me a short document that can be seen as something of a visionary “last will and testament” on the future of our society and our country. It distills her doctrine of democracy, in the spirit of the liberal nationalism that was hers. Its main points are as follows:

Israeli society is made up of several identity groups, each with its own interests and visions, all of them engaged in a perpetual arm-wrestling match. We must create a balance between what unites us—the civic partnership that does not distinguish among these groups, and what divides us—the ideological arguments that must be addressed rather than suppressed. “We must find ways to live together; not necessarily to decide in favor of one or another direction.”

How can this balance be achieved? The bedrock on which such a balance rests is a formal democracy in which all citizens are equal. Though it is indeed essential, this bedrock is not enough. No less significant is the imperative to preserve Israel’s unique character—nationally, ethnically, religiously, and historically—and to recognize that Israel is not only democratic, but also Jewish. These two defining characteristics are in constant tension, but both must be nurtured. “Jewish and democratic” is a vision “that cannot be relegated to a subordinate place,” even though not all citizens agree on this vision, nor accept it. 

Furthermore, there is also a constant tension between formal democracy, the principle of majority rule, and the defense of human rights, the latter—requiring setting limits to what the majority can impose on individuals and minority groups. Human rights are based on ethical concepts that derive from the defense of human dignity, “which can be a religious or a liberal value.” However, and this is where Ruth’s unique perspective is brought to light—limits must be set to the scope of the discourse on human rights, “so as not to castrate politics.”

Gavison strived to forge a dynamic balance—which she did not believe must be anchored in a written constitution—among three elements: “political arrangements,” resulting from citizens’ exercise of their right to vote; “social arrangements,” which are based on decentralized mechanisms of local and contractual decisions; and “the defense of rights”—the only one of these three which falls under the purview of the courts. According to this division—and in contrast to the current situation in Israel—“a relatively broad space” would remain “for political and social struggles and conflicts, about specific arrangements.” Not everything is justiciable.

It is incumbent on all citizens to fight for their own beliefs and interests—but they must also recognize the legitimacy of decisions that have been made even if these do not match their own beliefs. With the noteworthy exception of blatant infringements of human rights, the discourse on rights must not be invoked in the context of ideological battles. Ruth was opposed to the judicialization process, through which the courts have expanded the scope of their authority. She believed that the discourse on rights is not the appropriate tool for settling key constitutional and political issues, in light of the fact that it takes recourse to rigid principles that impair the flexibility that is needed to effectively manage controversy and conflict. Thus for example, she opposed the legislation of the Nation-State Basic Law.

I knew Ruth for more than twenty-five years. These were the last lines she wrote to me, only a few days before her untimely death: “Israeli society is currently in crisis, but its social and political roots are more robust and resilient than the polarizing discourse. Our academic course on democracy, Jewish nationalism, and human rights must serve to fortify the sense among all the components of Israeli society—individuals and groups—that they are partners in working towards its flourishing development—and are free to sound their voice and act to promote their own interests.” I see this as the essence of her testament.

The late Ruth Gavison was a moral compass and a strategic asset for Israeli society. We have now lost a source of inspiration for many. Even though her life’s song has gone silent, her students, her beliefs and her incisive perspectives remain here to keep her ideas and her convictions alive.

The article was published in the Jerusalem Post.