February 19, 2023|כ"ח שבט ה' אלפים תשפ"ג The Real Threat to Israeli Democracy - It's All About Trust By Rabbi Jonathan Muskat

Many of us who have been following the news in Israel over the past month have been reading about the proposed legislation regarding judicial reform. There are several bills to amend Israel’s basic laws which would grant Knesset lawmakers control over judicial appointments, eliminate judicial review of Knesset legislation and allow parliament to vote down Supreme Court decisions by a simple majority. The current government believes that the Supreme Court is populated by leftist elites that has often exceeded its authority by claiming the right to strike down legislation that they find unreasonable, however they define it.

Sizeable protests have grown against these reforms every week since the middle of January drawing tens of thousands of people and, according to some estimates, over 100,000 people. How should I feel about these protests? On the one hand, Prime Minister Netanyahu’s coalition won the most seats in the recent election. Therefore, we should respect this victory and the fact that the consequences of an election is that the winner gets to pass new laws. Can you imagine if every time one side lost an election, the losing side engaged in non-stop protesting? The government wouldn’t be able to function. On the other hand, the proposed reforms threaten to grant the government unchecked power which many argue is a threat to democracy in Israel, and protest is a legal form of free speech which we should we respect. I think that the Torah in our parsha provides guidance on how we react to our political leaders who advocate for rules that we may or may not find troubling and how to foster healthy, thriving societies. While each side in this debate is claiming that the other side poses a threat to democracy, I believe that there is another threat to democracy that we often overlook.

What is the relationship between Parshat Yitro and Parshat Mishpatim, the Sinai revelation and the societal laws? To me, Parshat Yitro is all about the vision – the Ten Commandments, the ten principles of Jewish life which according to Rav Saadia Gaon form the backbone of the entire Torah. But Parshat Mishpatim tells us that vision isn’t enough. The vision of Sinai must be translated into detailed laws to implement in our daily living.

We believe in laws. We believe in detailed laws that will help create a healthy society. We don’t just believe in the visions of Sinai and trust our leaders to implement those visions. We need the laws of Mishpatim to which every citizen and every leader is subject. If we believe that our laws which protect our rights as citizens are being threatened by the government or if we believe that our government is trying to put itself above the law, then we have every right to challenge this behavior so that we can protect our society.

But there is a specific halacha about leadership in this parsha that we need to consider in this context. The pasuk states, “Elokim lo te-kalel v’nasi b-amcha lo ta-or.” (Shemot 22:27) We are forbidden from cursing Elo-kim or a leader. Many commentaries assume that “Elo-kim” does not refer to God, but it is “elohim,” referring to judges, and the Torah here is telling us that we may not curse our leadership, and the question is why. Maybe it’s because he is like “Elo-kim,” that there is something divine about our leaders, that they should represent God faithfully. According to this approach, when we respect our leaders, we also respect God and if we curse our leaders then, in some sense, we are also cursing God. Of course, this approach comes with a price. What if our leaders are not acting appropriately? What if they are not faithfully respecting God? Well, the gemara in Masechet Yevamot 22b states that the prohibition to curse a leader only applies when he is acting appropriately. This approach reflects the view that when we look to our political leaders, we expect moral leadership.

I wonder how this question spills over to the political leadership of a Jewish State called Israel which is not governed by the Torah or, for that matter, any political leaders, such as the leaders of this country? Should we respect our political leaders because they reflect moral values or should we do so for some other reason? And what if we don’t believe that our political leaders reflect moral values?

Some political theorists believe that political leaders must be moral because it is inevitable that these leaders will face new and unanticipated problems during their term and we want leaders with a moral lens to approach these new situations. As scholar and political scientist James David Barber wrote, the best way to understand a president’s likely responses to a crisis is to understand what that president values most highly. For example, President Abraham Lincoln’s moral beliefs in the equality of people provided him with political guidance throughout the the American Civil War. In a similar vein, other political theorists argue that unethical leaders may not abide by the rule of law at times and this can cause democracies to unravel. However, other political thinkers, like Michael Walzer, have argued that the world is imperfect so sometimes a politician must lie, cheat or otherwise do wrong in the name of doing good for his or her country. They might argue that a political leader need not be moral, but he or she must be effective in producing the greatest good for the citizens of his or her country even if the leader is not personally moral.

How much we care about a political leader’s moral leadership and how much we care about him or her simply being effective are questions that will continue to be debated by our society. But what if our primary concern is our leader’s effectiveness and not his or her morality? What if he or she does not faithfully represent Elokim? Elokim lo tekalel v’nasi b’amcha lo ta’or. Is there still a value to respect and not curse such a leader?

The Rashbam, Seforno and the Netziv are all bothered by the fact that the Torah specifies the prohibition to curse a leader. After all, you may not curse anyone. Why is there an additional prohibition to curse a leader? They all essentially respond in the same way. They all argue that people typically curse their leaders when their leaders do not adopt laws to their liking. So the Torah tells us not to give in to our natural temptation to curse the leader, the one who implemented these unfavorable laws.

Why? The Seforno writes:

אמנם קללת המלך ורעתו תהיה על הרוב סבת רעה רבה והיזק לצבור

Cursing the legitimate authority of a country, its official rulers, will frequently result in the whole population experiencing the negative fallout of such curses. It’s bad for society.

A society must be one where there are laws to which every citizen, including the leader, is accountable, and we should feel free to critique leaders who may think that they are above the law or who may wish to implement new laws which limit my basic rights as a citizen. But we don’t curse. What is the difference between critiquing and cursing? The difference between critiquing and cursing is the difference between trying to create a better society and simply trying to defeat the other side. We are encouraged to legitimately critique our leaders while at the same time we are commanded to respect the framework of governance and the rule of law because it is the foundation to which all that we aspire as a society.

I very much agree with an article that I read from Yaakov Katz, editor-in-chief of the Jerusalem Post, about the protests against judicial reform in Israel. He wrote that the people need to realize that both sides have legitimate concerns. Some segments of society feel disenfranchised by the courts in Israel and don’t feel that their rights are represented. Others feel that the proposed changes by the government are too extreme and will swing the pendulum to give too much power to the political parties in charge, which are now the right-wing parties. His observation is that the politicians on the right are stream-rolling ahead with their plans without regard to the other side. Meanwhile, the leaders of the opposition, Yair Lapid and Benny Gantz, claim that they want a dialogue, but when they were offered one, they created preconditions so that they could turn down the dialogue. To me, there seem to be reasonable people on both sides with legitimate claims and President Herzog, for one, put forth a compromise to help bridge the sides, but right now there is little movement. Why is there just protesting and little movement? It’s because there is so much distrust between both sides. It’s not about legitimate criticism. It’s about cursing. The Sefer Ha-Chinuch writes (Mitzvah 325) that the philosophy underlying the requirement to be “dan l’kaf zechut,” to judge others favorably, to look for the good in the other, is that we should have a healthy functioning society. A healthy functioning society is based on trust.

For all the talk about the threat that these judicial reforms pose to democracy in Israel, it seems to me that we shouldn’t only be concerned about whether certain laws are or are not passed, but we should be concerned about “Elokim lo te-kalel v’nasi m’amcha lo ta’or,” about cursing our leaders, about the lack of trust, about caring more about winning than creating a better society. We should care about expressing support for dialogue and compromise and maybe give the political opponent a little more benefit of the doubt, whether we are talking about Israeli politics or American politics, for that matter. Yes, our society should care about protecting individual rights and promoting values, but our society should also care about promoting trust. And when politicians see that we not only care about promoting our rights and values, but also promoting trust, then they will make it part of their agenda, as well. So it’s up to us. May God help us in this holy endeavor.