The Sabra's Lawless Legacy

By Assaf Sagiv

Israel’s sixtieth anniversary offered little cause for celebration. With the gag order imposed on the ongoing criminal investigation into Prime Minister Ehud Olmert partially lifted at day’s end, Israelis learned that their head of state is suspected, among other things, of bribery, fraud, breach of trust, and money laundering. That night, Olmert appeared before the media to proclaim his innocence, insisting that he would fight the charges leveled against him. He even expressed his willingness to resign if and when he is indicted. This episode marked a new low in Israel’s plague of public corruption: Over the past few years, a long list of officials—including a former president, finance minister, justice minister, and the head of the Income Tax Authority—have been involved in scandals both large and small. Indeed, reports of embezzlement, kickbacks, patronage appointments, and sexual harassment have become depressingly common in the Israeli media. It is no surprise, then, that according to a report issued by the Israel Democracy Institute this year, a full 90 percent of the public believes that the state is rife with corruption.
Most commentators assert that the cancer of corruption originates in the intimate association between politics and big money. No doubt, close relationships between elected officials and businessmen—as natural, and even necessary, as they may be—can have problematic ramifications. Yet this explanation paints only a partial picture of the problem. After all, the shameful conduct displayed by much of Israel’s political and financial elite largely reflects the questionable norms embraced by significant segments of the Israeli population. In an article published in Haaretz on June 12, 2008, the psychologist Yair Caspi argued as much when he said that “Ehud Olmert represents the beliefs and values that have taken root among us over the past decades... the perfect embodiment of the spirit of the times and the collective Israeli unconscious.” In describing “Olmert’s Nation,” Caspi did not mince words:
[It is] a nation that “gets by,” that worships those who are best at “getting by”: Those who successfully cut as many corners as possible; those who know how to extract the most from the system; and mainly, those who don’t get caught. And if they are caught—get away with it.... A nation of people who want to do as they please. Who have found themselves a new philosophy that permits no one to judge them.
Sadly, this collective portrait rings all too true and will be familiar to anyone who has lived in Israel for an extended period of time. But Caspi is mistaken when he speaks of a “new philosophy” taking root among Israelis. In truth, there is nothing new about this philosophy. It is as old as Israeli society itself.
While many might wish to believe otherwise, the fact is that the unruly, irresponsible, and lawless behavior that runs rampant in the Jewish state today is not a sudden detour from the path laid out by the Zionist pioneers. On the contrary, in certain respects it constitutes a natural, almost inevitable outcome of the ethos they created. What is becoming increasingly clear is that some of the rotten apples grown by Israel’s founding fathers have managed to spoil the whole barrel. Alas, even the most enthusiastic Zionists, who believe in the moral necessity of Israel’s existence and prosperity, must recognize this disturbing fact and deal with its consequences if they wish to find a cure for the disease that threatens to bring disaster upon the state so dear to their hearts.
In a somewhat paradoxical fashion, the Zionist movement’s effort to establish a sovereign commonwealth in the Jewish homeland was accompanied by a certain ambivalence toward the institution of Law. Indeed, from its very beginnings, Zionism was distinguished by a penchant for illegalism. While the pre-state Yishuv hardly lacked men versed in the legal profession—prominent Zionist leaders such as Theodor Herzl, David Ben-Gurion, and Ze’ev Jabotinsky had themselves studied law, and relatively large numbers of Jewish jurists had fled Central Europe to Palestine in the 1930s—it nonetheless may be said to have lacked respect for the Law as such.
To be sure, this attitude is somewhat understandable, given the circumstances into which Zionism was born and the challenges it encountered. The modern national worldview adopted by many Zionist activists, which entailed the renunciation of the diasporic way of life, also led them to turn their backs on halacha, which for religious Jews constitutes the Law. As the historian Anita Shapira points out in her book New Jews, Old Jews (1997), the gradual abandonment of religious law was, for many Zionist pioneers, almost inevitable:
The atmosphere of the land of Israel did not encourage the keeping of the commandments. On the contrary: There was something in the public climate that looked upon breaking with tradition and being freed from ancient customs in a positive light. The family home was far away, and the social inhibitions, which were understandable within a familiar framework, disappeared entirely in the new land. Dissociation from the commandments happened almost unintentionally.
Whether a conscious ideological rebellion or an unintentional consequence, the rejection of halacha as the legal framework of national existence created a normative vacuum in the lives of the first Jewish settlers. Different factions attempted to fill this vacuum by different means: national myths, class ideologies, universal values, and other lofty ideals. None, however, was of a juridical character. After all, the Zionist founders were in no hurry to replace one form of legalism with another, and especially not one of foreign origin. Indeed, the Yishuv regarded the laws imposed by the British Mandate not as an authority to be obeyed and respected, but rather, and quite justifiably, as an obstacle to its national aspirations. As a result, and with increasing haste after the publication of Britain’s 1939 restrictions on Jewish immigration, the Zionist leadership worked outside of and against the law, which had became wholly identified with a hostile foreign regime.
Regrettably, the establishment of the State of Israel did not change the Zionist leadership’s uneasiness with the Law. Certainly, the founders of the state desired to give it the appearance of a well-administered, constitutional democracy. Yet they were reluctant to forsake their suspicion of legalism. As far as they were concerned, the law was and remained a stifling and archaic constraint that frequently did not correspond to the conditions of real life. Israel’s first prime minister, David Ben-Gurion, did not hesitate to voice his clear and harsh opinion on the matter in a speech to the Provisional State Council in September 1948:
The question is this: Have we been made for the legal principle or has the legal principle been made for us? Every jurist knows how easy it is to weave juridical cobwebs to prove anything and refute anything…. As a [former] law student I know that no one can distort any text and invent farfetched assumptions and confusing interpretations like the jurist…. We need recognition of the reality and knowledge of the facts, and this should be the decisive factor, not juristic legalisms.
Ben-Gurion’s opinions on judicial culture were also reflected in his opposition to the establishment of a constitution. He assumed that an overly rigid legal order would hinder Israel’s latitude in such crucial areas as security, settlement, and immigration. “Our state is the most dynamic state in the world,” he proclaimed. “It is recreated each day anew. Every day more Jews are being released and allowed to immigrate to Israel. Every day new lands are being redeemed from wilderness and neglect. This dynamism does not tolerate rigid limitations or superficial restrictions.” Ben-Gurion’s position—which served as the official line of his ruling Mapai party—had a durable effect on Israel’s legal history. The state’s “constitutional moment”—the critical period during which a newly formed commonwealth has the opportunity to create a founding legal document and thus determine its future character—passed, and a singular opportunity was lost. Ever since, the task of altering Israel’s governmental and judicial infrastructure has proven exceedingly difficult—in fact, nearly impossible.

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