By law, Israeli courts are supposed to close on Shabbat \u2013 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.<\/p>\n
Explaining the extraordinary step, the court said: \u201cIt is clear that this is a matter of pikuah nefesh\u201d \u2013 of preserving life. Really? What would have happened had the hearing been postponed until Sunday? The Home Front Command\u2019s limit of 150 participants at the Saturday-night protest would have remained in force. True, in the court\u2019s 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?<\/p>\n
To the court\u2019s 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.<\/p>\n
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 \u2013 including the current and former Sephardi chief rabbis \u2013 on the very legitimacy of the institution and its judges.<\/p>\n
Rabbi David Yosef, the current chief rabbi, called the judges \u201cimpudent\u201d and accused them of lawlessness and of trampling both law and Torah. After declaring the High Court an enemy of Judaism, he announced that \u201cwe will fight them with all our might.\u201d His brother, Rabbi Yitzhak Yosef, the former chief rabbi, went further: \u201cinfidels,\u201d \u201chaters of Israel,\u201d and finally \u201cwicked men whom the Almighty should destroy \u2013 should kill.\u201d Later, he softened the remark, explaining that he was assigning that task to God, not to human beings, since \u201cviolence is forbidden.\u201d<\/p>\n
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\u2019s 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 \u2013 to challenge its composition, authority, and decisions. Imagine the storm that would be unleashed if Chief Justice Amit had determined that Israel\u2019s chief rabbi was impudent, lawless, and an enemy of the State of Israel.<\/p>\n
The chief rabbis\u2019 outburst has deep roots. Their father, the late Rabbi Ovadia Yosef, along with many other rabbis, held that Israel\u2019s courts are \u201cgentile tribunals.\u201d Decoded, this phrase implies that Jews may not turn to them. It echoes Maimonides and the Shulhan Aruch, \u201cwhoever comes before them for judgment is wicked.\u201d 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 \u2013 seeking to differentiate itself from a dominant non-Jewish environment and its value system \u2013 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 \u201cgentile tribunals\u201d?<\/p>\n
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\u2019s religious judiciary against the heads of its civil judiciary, by contrast, are a national matter of life and death.<\/p>\n