The Rule of Law and Justice
By Prof. Paul Eidelberg
The rule of law is a basic principle of Torah Judaism and of classical
democracy. The rule of law affirms that those who make the laws are
obliged to obey the laws. Accordingly, Jewish law enables private
citizens to bring public officials -- including a king -- to the bar of
justice. Consistent therewith, the American Supreme Court held that a
private citizen can institute a civil suit against a President, as
occurred in a case in which President Bill Clinton was accused of sexual
The rule of law as just defined does not exist in Israel.
Nathan and Shimon Peres made contact with Yasir Arafat in violation of the
1986 Prevention of Terrorism Act. Mr. Nathan, a private citizen, was
incarcerated for six months for that felony. Shimon Peres was never
Moshe Feiglin was convicted of sedition (!) for having
a demonstration that caused a major disruption of traffic in Israel. In
1991, Arab Knesset Member Hashim Mahameed urged Arabs in Gaza to “fight
the conquerors [i.e. Israel] with all the means they [these Arabs] have,”
yet he was not indicted for sedition (nor for violating the Prevention of
Terrorism Act). In fact, the Knesset did nothing more than suspend for
three months Mahameed’s parliamentary privilege of unrestricted access to
all areas of the country! What a travesty of justice and the rule of
The alternative to the rule of law is the rule of men. The
of men entails arbitrary government and, inevitably, officially sanctioned
violence against citizens who protest Government policies. It is in this
light that we are to understand why Israeli police often employ undue
force and even brutality against citizens engaged in peaceful
demonstrations. Backed by the Government, hence by its Ministry of
Justice, the police can resort to such violence without being liable to
compensatory and punitary damages -- something unheard of in the United
Countless violations of the law or of administrative
by elected and appointed officials are annually reported by Israel’s State
comptroller, yet virtually nothing is done to bring the culprits to
justice. The citizen (as well as the State Comptroller) is powerless to
correct these abuses. And so, not only is justice intermittent in Israel,
but the deliberate sense of the public is ignored between elections in
that occasional democracy.
Inasmuch as democratic elections are not sufficient to make
government accountable to the people, Israel requires a new system of
justice, which presupposes nothing less than a just system of government.
To implement such a system, Israel will need a Jewish Constitution and
therefore a Jewish Constitutional Party with committees that parallel key
cabinet ministries. (This idea, which I proposed in 1996, was adopted by
the Yamin Israel Party and more recently by Manhigud Yehudit, which,
unfortunately, has become a faction of the Likud Party, whose leader,
Ariel Sharon, is impervious to justice and the rule of law as evidence by
his release of Arab terrorists convicted of murder.)
To illustrate what I have in mind, contemplate a Committee of Justice
whose purpose is to overhaul Israel’s legal system and make it more
consonant with Jewish law and democracy. Obviously the chairman of this
committee should be conversant in Jewish as well as in secular law.
Consistent with the Foundations of Law Act of 1980, and as stated by
Professor Menachem Elon, former Deputy President of the Supreme Court,
Jewish Law should be “primus inter pares” (first among equals) vis-a-vis
English and American law in Israeli jurisprudence. Jewish law should also
be used to make public officials accountable to the people. Yamin Israel
suggests the following reforms:
First, as in America, a private citizen who suffers injury (as
defined by law) from the act of any public official may sue the official
for compensatory and punitive damages. The implementation of such a law
would dramatically reduce not only police brutality, but the tens of
thousands of false arrests which occur each year in Israel.
Second, any suit involving a public official will be tried by
jury composed of qualified private citizens, namely college or Jewish
academy graduates. Such a law would greatly diminish the number of
“cover-ups” that enable public officials to violate the law with impunity.
Third, no person convicted of a felony will be released from
jail prior to the termination of his sentence without the approval of a
parole board consisting of qualified private citizens. This will
preclude the release of Arab terrorists.
Fourth, any person convicted of a felony will be required to
work within the confines of his prison for the purpose of compensating his
victim or his victim’s family.
Fifth, no person will be imprisoned for violations of the
law. Instead, he or she shall be required to compensate, by two-fold, the
Sixth, plea bargaining will be prohibited. This piece of
chicanery not only undermines respect for law but enables criminals to
Seventh, doctors working in government hospitals should be
subject to (substantial) malpractice suits tried by juries composed of
private citizens having the qualification previously mentioned. (This
will improve the quality of medicine in Israel.)
Eighth, any legislator that votes for a bill or treaty that
contradicts his campaign pledges to people will be subject to recall, i.e.
removal from office (hence the need of constituency elections).
The above provisions are but a sample of what is required to
make Israel an authentic Jewish democracy, where the rule of law and
justice prevail. In fact, it was precisely the absence of authentic
democracy and the rule of law that led to the Israel-PLO Agreements and
the utter violation of justice perpetrated by Israeli governments that
released and armed Arab terrorists and even surrendered Jewish land to
these murderers! Unfortunately, many Jewish organizations, preoccupied
with the deadly consequences of those agreements, have ignored their basic
cause, namely, Israel’s undemocratic and self-destructive system of
government. These organizations have talented people profoundly devoted
to Israel’s well-being and can therefore make a difference.
Yamin Israel invites them to unite and help make Israel a
Jewish Constitutional Democracy, wherein all citizens and public officials
are animated by a love of justice and dedicated to the rule of law.
from the July 2003 Edition of the Jewish Magazine