Mishpatim 5783 – Civil Rights and Israel’s Crisis

The Torah was a revolutionary document in its day.

3,000 years ago, kings were absolute monarchs. They not only made the law, they were the law.

Absolute monarchies have become rare, but they still exist today. The sultans of Brunei and Oman are both absolute monarchs with all of the legislative, executive, and judicial powers concentrated in the hands of one man.

The Torah was a wildly innovative document because it put limits on the power of the king. The ancient Israelite kings were not absolute monarchs: they were required to follow the rules of the Torah. Ancient Israel was a constitutional monarchy, not an absolute monarchy, with the Torah as the constitution. Technically, Canada is also a constitutional monarchy.

This week’s parsha, Mishpatim, sets out protections – civil rights – for vulnerable populations, protections that the king was required to honor. The Torah commands the king to write a copy of the Torah (or at least the book of Deuteronomy) and keep it with him so he doesn’t forget. Some of those protections include:

Protection of slaves: In Exodus 21:2-11, there are laws detailing how long a Hebrew slave serves, conditions of release, and a prohibition on harsh treatment or abuse.

Protection of women: In Exodus 21:7-11, a law is given that protects women who are sold into servitude. If a man sells his daughter to be someone’s wife, she is to be treated in the way free women are treated, if the owner changes his mind, she goes free, she cannot be resold to a third party.

Protection of the poor: In Exodus 22:25-27, laws are given that prohibit charging interest on loans to the poor and require lending to be done with compassion.

Protection of foreigners: In Exodus 22:21, a law is given that prohibits mistreatment of foreigners, and requires them to be treated fairly and justly. We are told over and over in the Torah, 36 times, to be considerate of the stranger, for we were strangers in the land of Egypt.

Protection of the innocent: In Exodus 23:7, a law is given that prohibits the condemnation of the innocent, and requires that justice be administered impartially.

Protection of personal property: In Exodus 22:1-15, laws are given that prohibit theft and require restitution to be made for stolen property. This rule can also be seen as a basis for the principle that if the government exercises eminent domain to confiscate property, the owner must be compensated.

On Monday 150,000 Israelis went to a demonstration in Jerusalem, protesting the proposed “reforms” of the judicial system that would remove the Supreme Court as a check on the legislature. The demonstration was in the middle of the day – these people took time off from work to go to a demonstration. Among the demonstrators was Benny Begin, the son of Menachem Begin who was the founder of the Likud party, and a respected right-wing politician himself.

And they weren’t the only people who went on strike that day. It didn’t get much in the way of headlines, but an estimated one million Israelis went on strike on Monday to protest these reforms. Considering how much of the population in Israeli is children, women from the Arab sector who often don’t work, and Haredi Jews who live on government handouts, that’s a very large percentage of the workforce.

The American government is often held up as an ideal with clearly delineated responsibilities between three separate but equal branches of the government: the executive, the legislature, and the judiciary. As a constitutional republic the roles are codified in a form that is extraordinarily difficult to change.

Passing a new law in the states requires both Houses of the legislature to agree, and the executive branch, with a president elected separately from the legislature, has to agree to new laws. Even if both houses of the legislature and the executive agree on a new law, if the judiciary finds the law unconstitutional it will not come into power. To override a presidential veto can be done, but it requires a two thirds majority in both houses of the legislature, and even then the laws are still subject to judicial review.

In countries such as Canada and Israel that are on the parliamentary system, there are only two branches of government effectively facing each other and providing a check on each other. Since the executive comes from the legislature, effectively the executive and legislature act as one, until such time there is a vote of no confidence and the government collapses. The judiciary is the only effective brake or check on the power of the executive branch.

The reason so many Israelis are protesting is that the country’s new government is trying to put through changes that would, in essence, make the prime minister, Benjamin Netanyahu, answerable to no one. By politicizing the appointment of Supreme Court justices, and by passing a law that would allow a simple majority in the Knesset to overrule Supreme Court decisions, the legislature would have absolute power, and since the prime minister heads the legislature, there is nothing to stand in the way of laws that would abrogate the rights of minorities, or allow the prime minister to evade punishment for crimes he is currently fighting in court. Israel has no Constitution that enshrines the basic principles the country must follow and the relationship between the different branches of government. Israel has a series of “basic laws” that the government is supposed to follow, but the new law would take away the ability of the Supreme Court to make sure the government is not violating any of the basic laws.

If these changes pass, Israel would have an autocratic form of government, similar to Turkey or Hungary, where there are no independent bodies to put limits on the power of the government. There would be no protections for minorities such as Arabs, gays and lesbians, or non-Orthodox Jews. The extreme right-wing elements in the government are eager to push forward an agenda that would marginalize these communities, and if the power of the Supreme Court to protect these minorities is taken away it would be a disaster for anyone who is not a cisgender Orthodox man.

Such a move would be disastrous for Israel’s standing in the international community, and it would be bad for business. 

Even the kings in ancient Israel had a check on their power. They were obligated to follow the Torah as a sort of ancient constitution. Removing the power of judiciary would concentrate a wildly inappropriate amount of power in the hands of one man, who is beholden to many different extreme factions to stay in power.

Israel’s Declaration of Independence proudly proclaims that Israel

will promote the development of the country for the benefit of all its inhabitants; will be based on the precepts of liberty, justice and peace taught by the Hebrew Prophets; will uphold the full social and political equality of all its citizens, without distinction of race, creed or sex; will guarantee full freedom of conscience, worship, education and culture; will safeguard the sanctity and inviolability of the shrines and Holy Places of all religions;

My fellow Israelis are taking to the streets because they believe in these values from the Declaration of Independence. This is the vision they have for Israel. They fear Israel becoming a hate filled theocracy and a pariah in the Western world. They want to continue to be proud to be Israeli.

The government’s claims that this is democratic, because they were elected by a majority of citizens does not make injustice kosher. In this week’s Torah reading we are also commanded not to follow a majority to do evil or subvert justice.

The single most important trait in any leader is integrity. Arye Deri, the leader of the Shas party at the center of some of the new laws, has been convicted multiple times for crimes including fraud and bribery, and in a plea bargain he made at his last trial he promised to retire from public life; yet here he is back again, clearly lacking in integrity, and not a man of his word. If the prime minister, Benjamin Netanyahu, is innocent, let him prove it in court instead of changing the law or firing the prosecutor. 

The opening words of the Canadian Charter of Rights and Freedoms says,

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

That is a teaching that comes directly from the Torah. As Jews we believe no man is above the law, not even a king. Maybe that’s why we need God: the transcendent, greater than any mere mortal. No person should be above the law, or be able to easily manipulate the law to suit their own personal purposes.

Especially not in Israel, the homeland of the Jewish people, the people who gave the world the powerful concepts we learn in this week’s Torah reading: everyone has rights, we need to protect the vulnerable, and no one, but no one, is above the law.

Barry Leff

Rabbi Barry (Baruch) Leff is a dual Israeli-American business executive, teacher, speaker and writer who divides his time between Israel and the US.

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