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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 harassment.

The rule of law as just defined does not exist in Israel. Abbie 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 indicted.

Moshe Feiglin was convicted of sedition (!) for having organized 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 law..

The alternative to the rule of law is the rule of men. The rule 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 States.

Countless violations of the law or of administrative procedures 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 a 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 civil law. Instead, he or she shall be required to compensate, by two-fold, the injured party.

Sixth, plea bargaining will be prohibited. This piece of legal chicanery not only undermines respect for law but enables criminals to avoid justice.

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




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