The following is an open letter I have sent to several officials in the Israeli government. In short, influenced by Henry David Thoreau and Thomas Paine (among others), I have declared war on the IDF.
Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity. Motto: Rebellion to Tyrants is Obedience to God.
Update: I could explain why this notice of Franklin’s Seal is woefully mismatched with the IDF Seal that is actually shown. But instead of explaining this discrepancy, I thought it’d be more fun to instead just put a reference to Robert Silverberg’s foreword to Barlowe’s Guide to Extraterrestrials by Wayne Douglas Barlowe. I’m serious. Really, I’m not kidding. A book about extraterrestrials explains why an IDF Seal is explained as being Franklin’s for the United States. Really. Rully truly.
The subject of my letter is concerning my conscientious objection from IDF service, and the disobeying of orders to perform West Bank expulsions. Now, Henry David Thoreau, in his "Civil Disobedience", explained his civil disobedience in the cause of abolition of slavery, but he never explained why slavery itself is evil; he took this for granted. Similarly, I wish to take it for granted that "land-for-peace" is folly and unwise on purely security grounds. I do not wish to argue this point, because the point of my letter is not justifying my opposition to land-for-peace, but rather, I wish to focus on my own personal civil disobedience and conscientious objection in the wake of land-for-peace. But briefly, two stories:
In fact, the muezzins (Muslim prayer callers) in Hebron had for days been yelling "Itbah al yahud" ("Slaughter on the Jews!"). Days before the Baruch Goldstein massacre, the IDF had told Goldstein (who was an IDF physician) to stockpile medical supplies, in expectation of an Arab massacre. Goldstein asked the IDF why they wouldn’t stop the massacre in advance, and the IDF replied that Oslo tied their hands. Jewish lives were going to be sacrificed on the altar of Oslo. (Related in Moshe Feiglin, Where There are No Men.) The very day of Oslo, my rabbi was driving from Jerusalem to his home in Beit El (in the West Bank). On the way, the IDF stopped him and diverted him to a side-road. My rabbi asked why he couldn’t take the main road anymore to Beit El. Remember, this is the very day Oslo occurred. The IDF told my rabbi that the main road was no longer safe to drive on, because of Oslo. The very day of Oslo, the IDF already recognized that Oslo compromised the safety of innocent human life. My rabbi added that he had been a kashrut supervisor (mashgiah) in an Arab factory, but that Oslo made it too dangerous for him to travel to the factory anymore, and thus, the Arab factory’s kashrut certification lapsed. Because of Oslo, this personal (and potentially peace-inspiring) interaction between Arabs and Jews ceased. (Related to me by my rabbi, Rabbi Menachem Listman, of Machon Meir, Jerusalem.)
The following sources will also provide a glimpse at why I oppose land-for-peace, based on security and safety grounds: — "The Late Great State of Israel", Aaron Klein, The Jewish Press, here — "The Late Great State of Israel", Jamie Glazov, FrontPageMag, here — "New Book By Aaron Klein Pulls No Punches", Jason Maoz, The Jewish Press, here — "The Late Great State of Israel", Lori Lowenthal Marcus, American Thinker, here — "The Late Great State of Israel: How Enemies Without and Within Threaten the Jewish Nation’s Survival", Fern Sidman, Intellectual Conservative, here. But as I said, I do not wish to argue the justice or safety of Oslo per se, because the point of my letter is not justifying my opposition to land-for-peace. I only wish to focus on my own personal civil disobedience and conscientious objection in the wake of land-for-peace.
It is important to note that in the letter,I use the term "liberal" in it true denotational sense, not in its modern (and false) connotational sense of being left-wing or Democratic. Wiktionary defines "liberal" as "Favoring social freedom; permissive" and as "Favoring ideas that treat all people with equal justice regardless of educational, financial, sexual or racial status." Wiktionary defines "liberalism" as "any political movement founded on the autonomy and personal freedom of the individual, progress and reform, and government by law with the consent of the governed." It is in these senses that I am liberal, and it in rejecting these views that Israeli leftists are illiberal fascists.
My letter follows. I have made a few very small additions, which are enclosed in brackets .
I was discussing conscientious objection by IDF soldiers, their refusal to follow immoral orders to expel Jews from their homes in the West Bank. My friend "Max" responded to me,
Of course, it would be ideal for the IDF to identify soldiers who have moral qualms about carrying out certain West Bank actions AHEAD of time, so that the IDF can place them in a unit or role that will most likely not have to deal with such things.
To be honest, I’ve decided to entirely forgo serving in the IDF myself. For me, it is not enough to merely not perform expulsions myself. I do not want to be complicit in an IDF that performs such expulsions at all, even if I’m myself not the one doing them. Besides, if I serve in the IDF, even without performing expulsions myself, I am doing a job that frees up a position for someone else to perform an expulsion. As Henry David Thoreau says in his landmark and highly influential essay "Civil Disobedience" (online here; this essay was the direct inspiration for Ghandi and Martin Luther King, Jr.), "What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn." By serving in the IDF, I am at least indirectly allowing expulsions to take place. Thoreau further adds [regarding his aunt’s bailing him from prison by paying on his behalf the poll tax which he himself was jailed for refusing to pay]:
If others pay the tax which is demanded of me, from a sympathy with the State, they do but what they have already done in their own case, or rather they abet injustice to a greater extent than the State requires. If they pay the tax from a mistaken interest in the individual taxed, to save his property, or prevent his going to jail, it is because they have not considered wisely how far they let their private feelings interfere with the public good.
With the Federman house,the Hesder soldiers were lied to about their mission. They were told falsely that they were fighting Arab terrorists, when actually, their targets were Jewish householders. I don’t want to be a member of an army that will lie to me about my orders, in order to ensure my complicity in evil. And if the Israeli government jails me for illegally evading the draft, so be it. Thoreau in "Civil Disobedience" has a beautiful passage on the subject:
I have paid no poll tax for six years. I was put into a jail once on this account, for one night; and, as I stood considering the walls of solid stone, two or three feet thick, the door of wood and iron, a foot thick, and the iron grating which strained the light, I could not help being struck with the foolishness of that institution which treated my as if I were mere flesh and blood and bones, to be locked up. I wondered that it should have concluded at length that this was the best use it could put me to, and had never thought to avail itself of my services in some way. I saw that, if there was a wall of stone between me and my townsmen, there was a still more difficult one to climb or break through before they could get to be as free as I was. I did nor for a moment feel confined, and the walls seemed a great waste of stone and mortar. I felt as if I alone of all my townsmen had paid my tax. They plainly did not know how to treat me, but behaved like persons who are underbred. In every threat and in every compliment there was a blunder; for they thought that my chief desire was to stand the other side of that stone wall. I could not but smile to see how industriously they locked the door on my meditations, which followed them out again without let or hindrance, and they were really all that was dangerous. As they could not reach me, they had resolved to punish my body; just as boys, if they cannot come at some person against whom they have a spite, will abuse his dog. I saw that the State was half-witted, that it was timid as a lone woman with her silver spoons, and that it did not know its friends from its foes, and I lost all my remaining respect for it, and pitied it.
If the Israeli government jails me, instead of availing itself of my services as a civilian, then they’re the idiots, and I only pity them. As Thoreau says, "Under a government which imprisons unjustly, the true place for a just man is also a prison."[Paragraph originally in the open letter removed. I decided this paragraph did not contribute to my argument.] [Henry David Thoreau further added,
The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it. Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for in the outset, the people would not have consented to this measure.
In other words: as per John Locke-ian social contract theory of the consent of the governed, the government’s task is only to fulfill the will of the people and to ensure their basic safety and rights, for whom the government is but a proxy and expedient. But when the government uses its army in a way that the people never would have, it betrays its social contract and loses its legitimacy. Is this not exactly a description of how Barak and others are using the Israel Defense Forces, when they turn it into a police force to enforce Machiavellian political machinations? In such a case, when the people feel the law is morally and ethically bankrupt, and/or when the people feel the government is abusing its democratically-granted contract to be the people’s proxy, is it not the people’s right and privilege to rebel against that law and/or the government whose law it is?]
When the people fear their government, there is tyranny; when the government fears the people, there is liberty. — Thomas Jefferson
[We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. … [W]hen a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. — The United States Declaration of Independence, written predominately by Thomas Jefferson, its thought influenced above all by John Locke]
Resistance [or Rebellion, or Disobedience] to tyrants is obedience to God. — Benjamin Franklin [Thomas Jefferson liked this motto so much, that he included it in his own personal seal]
Britain, with an army to enforce her tyranny, has declared that she has a right … "to bind us in all cases whatsoever," and if being bound in that manner is not slavery, then there is not such a thing as slavery upon earth. Even the expression is impious, for so unlimited a power can belong only to God. … Not all the treasures of the world … could have induced me to support an offensive war, for I think it murder; but if a thief break into my house, burn and destroy my property, and kill or threaten to kill me, or those that are in it, and to "bind me in all cases whatsoever," to his absolute will, am I to suffer it? What signifies it to me whether he who does it is a king or a common man; my countryman or not my countryman? Whether it is done by an individual villain, for an army of them? If we reason to the root of things we shall find no difference. … — Thomas Paine, "The American Crisis"
One may well ask, "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: There are just and there are unjust laws. … A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. … So I can urge men to disobey segregation ordinances because they are morally wrong. … We can never forget that everything Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was illegal to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany during hat time I would have aided and comforted my Jewish brothers even though it was illegal. — Reverend Martin Luther King, Jr., "Letter From the Birmingham Jail"
[Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. … Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. … He who gives himself entirely [including his conscience] to his fellow men appears to them useless and selfish; but he who gives himself partially [only his body and obedience, minus his conscience] to them is pronounced a benefactor and philanthropist. — Henry David Thoreau, "Civil Disobedience"]
We are superstitious, and esteem the statute somewhat: so much life as it has in the character of living men, is its force. The statute stands there to say, yesterday we agreed so and so, but how feel ye this article today? Our statute is a currency, which we stamp with our own portrait: it soon becomes unrecognizable, and in process of time will return to the mint. … But our institutions, though in coincidence with the spirit of the age, have not any exemption from the practical defects which have discredited other forms. Every actual State is corrupt. Good men must not obey the laws too well. — Ralph Waldo Emerson, "Politics"
By the way, my rabbi (Rabbi Yuval Sherlow) is opposed to my refusing to serve in the IDF. I am refusing to serve in the IDF not because my rabbi told me to, but because **I** believe it is the right thing to do, and because I believe it is what the Torah would demand of me. And note that everyone I’ve quoted (Emerson, Thoreau, Jefferson, Franklin, Paine, Martin Luther King Jr.) are all enlightened liberal democratic Americans. You’ll be hard-pressed to call me a right-wing radical or a fascist. By contrast, Labor and Kadima MKs Ophir Pines-Paz and Nahman Shai are as authoritarian, fascist, and absolutist as they come, for they declared that all soldiers who refuse orders are undemocratic [and not merely illegal or unlawful, which of course all civil disobedience is, including Martin Luther King Jr.’s]; they desire nothing less than to quash free speech and stifle free expression and thought. (See the appendix by Political Science Lecturer Re’aya (Ra’issa) Epstein to Moshe Feiglin’s book Where There are No Men. Epstein shows that most Israeli leftists are actually quite fascist and authoritarian, and that it is the Israeli right-wing (such as Feiglin) that truly values democracy and liberalism.) But the truth is, while Pines-Paz and Shai are undemocratic and fascist, I am as democratic and liberal as can be. In fact, I and my family have ties to the Cato Institute ("Individual Liberty, Free Markets, and Peace") in Washington, D. C., so I’d like to see you try to call me undemocratic or un-liberal.
Thank you, and sincerely, Michael Makovi Yeshivat Hesder Petah Tiqwa
Postscript (not in the original letter):
In fact, following the 1956 Kafr Qasim massacre (in which IDF soldiers dutifully obeyed orders to murder unarmed Arabs), Israeli Judge Benjamin Halevy ruled the soldiers were guilty of murder because, in his words, "The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’." Of course, anyone familiar with the Talmudic principle of "ein shaliah b’davar averah" ("There is no messenger in the case of sin", meaning that unlike a mere message-bearer, a proxy to "deliver" a concrete action cannot claim innocence on the grounds that he was only following orders), or anyone familiar with the Nuremberg trials, would easily come to the same conclusion as Halevy. As Rabbi Mordechai Y. Scher says (here),
…This phrase and others like it have come up numerous times in discussions I’ve seen the last few days: ‘…you cannot decide as soldier what orders to obey…’ When I was a young soldier in Tzahal in the 80s, that was not true. We were told during official indoctrinations, in uniform, that an Israeli soldier has a legal right and moral obligation to refuse ‘an immoral order’. It was proudly emphasized that this would be a response to the Nazis and Germans who said, ‘I was only following orders.’ It seems to me that this has been thrown aside when Dati [ = religious] boys and girls have conscientious objections. When leftists act in a similar manner, even advocating refusal to serve at all (I disagree with M. Makovi on that one, though I admire his idealism), they are punished individually [for their violation of the law] but no one castigates their ideological leaders for [using their free speech and] taking [a democratic] part in the public debate.
Thus, the problem with Israeli leftists is that they apply Halevy’s logic only when it suits them. When the Israeli army takes actions that are too right-wing for them, leftists will demand insubordination and conscientious objection, saying that the orders are illegal, but when the orders comport well with them, they demand that everyone else obey unquestioningly, with no similar right of conscientious objection. The blatant hypocrisy is astounding and amazing. Leftists cannot advocate civil disobedience when it suits them but denounce civil disobedience as undemocratic and even seditious when it doesn’t, if only because not everyone shares a telepathic link with the leftists’ moral conscience. If one must obey an illegal or immoral order, then this democratic duty devolves on everyone at all times, and not only when the leftists want it to. Conversely, if one declares, as IDF Chief of General Staff Gabi Ashkenazi has, that soldiers have no choice but to obey all orders, with no one above them save their commanders, then one must perforce conclude: no matter what, IDF soldiers must obey their commanders, even orders to murder innocent Arab civilians. In General Ashkenazi’s own words (according to "’Zero tolerance for insubordination’", Jerusalem Post, 22 November 2009, online here), "This is my message to the religious leadership: soldiers answer to one authority only, and that is their commanding officers." But Ashkenazi must realize: this declaration is a double-edged sword.
There are those who claim that civil disobedience will lead to anarchy. However, both practical experience and human nature make this claim dubious. First, we see in practice that Martin Luther King, Jr.’s protests did not lead to anarchy, so why should things be different in Israel? Second, as Emerson says in his "Politics", "We are superstitious, and esteem the statute somewhat: so much life as it has in the character of living men, is its force.". In other words, most men are "superstitious", and are naturally inclined to follow the law. When the masses rise up in civil disobedience, it signifies that something terrible has happened, and anarchy does not result from their disobedience; anarchy rather results from whatever incredible and awesome phenomenon convinced them in the first place to go against their natural inclinations to be obedient. As Moshe Feiglin says ("Between Conscientious Objection and Anarchy", Manhighut Yehudit, 1 November 2009, online here),
What is the real danger? The normative person has no desire for anarchy. He strives for personal and financial security and a calm environment in which to raise his children. The predisposition of the normative citizen is to obey the government, and that is good. There is no real danger that suddenly everybody will start doing whatever they want. If tens of thousands of normal, working, family people are suddenly willing to pay a steep price in jail terms and loss of income, that means that the government – even if it was elected in legitimate elections – has crossed a line that it should not have crossed. Conscientious objection does not create anarchy. On the contrary, it guards the state from moral corruption and totalitarianism. The real danger of anarchy comes not from the citizens, but from the state’s leaders. The Oslo coercion and the subsequent [Gaza] "Disengagement" are two classic examples of leadership that was elected due to its unequivocal promises to carry out a particular platform (Rabin’s "no Palestinian state" and Sharon’s "The fate of Netzarim is the fate of Tel Aviv") but that implemented the complete opposite once it was elected. That is a perfect example of tyranny. I have power – and it makes no difference if it was achieved through deception of voters or by military coup – and now I command you to carry out an unethical and illogical order simply because I am strong and the forces of government are on my side. That is the true anarchy. We are wallowing in it today and it endangers Israel’s very foundations.
In other words: conscientious objection does not create anarchy. Anarchy is rather created by a government that campaigns on one platform and then governs on a totally different one once elected. Without conscientious objection and protest, there is nothing to stop the government from engaging in elected totalitarianism. What is the difference between being elected and seizing power in a military coup in this case? Either way, the will of the people carries no sway. In such a scenario, conscientious objection is the only means the people have for ensuring that their voice is heard by a government that sees itself beyond the will of the people and not beholden to their (the politicians’) own campaign promises.
Now then, it is true that strictly speaking, my letter discusses only my views on the IDF. However, my concerns are actually broader than reforming the IDF per se. It is obvious that Martin Luther King, Jr. and Mahatma Ghandi both violated the law. I am not arguing that civil disobedience should be legal, for by definition, civil disobedience is not legal. I am only arguing two points: firstly, that disobedience should philosophically be considered just and democratic, even though it is a violation of the law and will be suitably punished by the legal system. Second, freedom of speech must be absolute and paramount. This argument is indeed mostly philosophical, but there is a crucial legal implication: according to this, a civil disobedient would be punished only for the actual law he violated, and not for his speech per se (since I advocate absolute freedom of speech). For example, someone who (as Moshe Feiglin did) blocked traffic in order to express his dissatisfaction with the government, would be punished for a traffic violation, but he would not be punished for his dissatisfaction with the government per se. As against this, in reality, Moshe Feiglin was charged with sedition, i.e. he was charged with malfeasance against the government per se. But properly, he should only have been charged with his concrete traffic violations (though these symbolized grievances and advocacies against the government); his statements and opinions against the government should have been protected by free speech and been beyond the purview of the law.
As Lecturer Re’aya (Ra’issa) Epstein shows in her appendix to Moshe Feiglin’s Where There are No Men, the leftists in Israel, in the name of democracy, actually quash all democracy and free expression.
This therefore is the worst of all prostitutions and most immoral of all sort of slavery…supporting servitude with the breath of liberty, and assaulting and mangling liberty with her own weapons. — John Trenchard and Thomas Gordon, "Cato’s Letters"
Epstein describes (p. 284f.) how the Leftist ideal of "peace", the Peres vision of a "New Middle East" became what Epstein calls
a ‘reverse theocracy’, a totalitarian messianic religion, which held disbelieving individuals to be ‘ideological criminals’, or, put more bluntly, enemies of the state. … During the period of the leftist government (1992-1996), a delegitimation of the opponents to the Oslo process was furthered in, of all things, the name of democracy.
From this she derives (pp. 281-283., 288),
It[,] …the ‘totalitarian democracy’ school of thought, … in its underlying principles lies the assumption that in the political arena there exists only a single truth, and any dissenter is an absolute enemy, condemned to neutralization in a more or less violent manner. This process of neutralization at the hands of ‘the [Labor/Rabin-led Oslo] peace process’ is described in Moshe Feiglin’s book. In its conduct towards its opponents generally, and ‘Zo Artzeinu’ [lit. ‘This is Our Land’, Feiglin’s anti-Oslo movement of non-violent civil disobedience] in particular, the ‘peace’ regime in Israel (1992-1996) acted as an outright totalitarian regime. Israeli democracy had been far from ideal from the very start, but in this period it adopted one definitive truth, and quickly degenerated into the depths of violence, intolerance and cruelty. [Pp. 281f.]
The record of the State of Israel during the ‘peace’ period can serve as a universally meaningful ‘laboratory case’ revealing the possibility of a democracy’s decline into totalitarianism.
There is a universal aspect to this degeneration of Israeli democracy, an aspect that reminds one of the American trauma of the ’50s (the period of McCarthyism). Fear of the totalitarian power of the American communists almost converted the challenged democracy into a dictatorship. Similarly, in Israel, the Left’s fear (real or imagined) of their opponents, who are always considered ‘fascists’, changed the ‘democracy-on-the-defensive’ into an aggressive dictatorship. … [I]n Israel the communist approach to the essence of democracy (a totalitarian democracy) was embraced by the Left. Those sectors labeled by the Israeli Left as ‘fascists’ were actually more liberal in their world outlook and in their political behavior, much more than their uncompromising and antagonistic opponents. The story that unfolds in this book by Moshe Feiglin leads inexorably to this conclusion. [P. 282.] … This book by Moshe Feiglin, a rank-and-file Israeli Jew, will eventually find its way to its well-earned position as one of the earliest intellectual sources instrumental in the creation of a liberal democracy in Israel whose roots lie deep in Jewish foundations and wich does not feel required to contest them. [Pp. 288.]
This [Israeli] regime does indeed comprise both liberal and totalitarian elements. Its liberal element is the liberal ideology proclaimed by the ruling oligarchy. Chief Justice of the Supreme Court of Justice, Aaron Barak, repeatedly emphasizes that the rulings of the judiciary generally and of the Supreme Court in particular are in conformity with the liberal world outlook of the ‘enlightened public’. Hence it follows that those elements of the public that not subscribe to the views of of the ‘enlightened public’, as defined by Mr. Barak, fall outside the realm of judicial legitimacy and of democracy itself, since these, according to the school of thought represented by the ‘enlightened’ Justice Barak and his associates, are the exclusive possession of the ‘enlightened public’. [P. 283.]
According to Justice Barak, only the Left is entitled to free speech, because ipso facto, anyone who disagrees with the Left is a fascist and is not entitled to free speech in the first place. Only Barak’s opinion is valid, and so it is a democracy – with only one valid opinion which is permitted to be expressed. Epstein is not the only one to criticize Aharon Barak in this manner. Robert Bork, in his review of Barak’s book The Judge in a Democracy ("Barak’s Rule", Azure no. 27, Winter 5767/2007, here and excerpted here), says,
The judge [viz. Barak]’s answer is unsettling: Not all people qualify as "the people." New fundamental principles require that "a process of ‘common conviction’ must first take place among the enlightened members of society regarding the truth and justice of those norms and standards before we can say that a general will has been reached that these should become binding with the approval and sanction of the positive law." The "general will" consists of the opinions dominant within the intellectual class at any given moment, so that the "people" who do the cherishing are academics, journalists, intellectuals, and, of course, judges. Judges will decide when a general will has ripened sufficiently, and then,without further ado, convert the norms and standards into positive law.
There are other grave criticisms of Barak as well. Richard Posner shows in his review of Barak’s book ("Enlightened Despot", The New Republic, 23 April 2007, link) that Barak, unencumbered by a constitution, has complete free reign to do as he pleases. In America, separation of powers implies checks and balances. In other words, each branch of the government has power over the other, like a game of rock, paper, scissors. Each branch keeps the others in check. But in Israel, the judiciary has no one checking it; it can do as it pleases, with no limits. There is no constitution which the judge is expected to use to judge laws. Instead, the judge applies the "reasonability" test, which means the judge can strike down any law which he personally feels is unreasonable, according to his own ideology. The same criticism of the "reasonability" test is found in Nitsana Darshan-Leitner’s "Opinion: Road to Nowhere" (Jerusalem Post, 4 January 2010, here).
As Posner further says (op. cit.):
Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words. The leading abstraction is "democracy." Political democracy in the modern sense means a system of government in which the key officials stand for election at relatively short intervals and thus are accountable to the citizenry. A judiciary that is free to override the decisions of those officials curtails democracy. For Barak, however, democracy has a "substantive" component, namely a set of rights ("human rights" not limited to political rights, such as the right to criticize public officials, that support democracy), enforced by the judiciary, that clips the wings of the elected officials. That is not a justification for a hyperactive judiciary, it is merely a redefinition of it.
In other words, according to Posner: for Barak, democracy has nothing to do with the will of the people or the consent of the governed, or the social contract theory of John Locke. Democracy for Barak is an ideology, with certain concrete beliefs. It is what Epstein (op. cit.) calls an ideocracy, a reverse-theology. For Barak, democracy is a belief-system, much like the Democratic and Republican parties in America are. Thus, Barak can strike out any law he disagrees with, based on his own personal ideology, because his ideology is democracy.
Bork seems to agree, saying,
There is a strong and all-pervasive suspicion of democracy in this book, as indeed there was in Barak’s performance on the bench. He seeks to deny the authoritarian nature of the trend he applauds by re-defining democracy, which consists, according to Barak, of two parts: "Formal democracy" (the rule of the people through elected representatives) and "substantive democracy" (including an independent judiciary, the rule of law, and human rights).
What I want to do, frankly, is scare these authoritarian leftists. I want to show them that I’m disobeying Israeli law, not because the rabbis or Talmud say to, but because Thoreau and Emerson and Paine and King say to. That’s why I lay it on so thick at the end of my letter about how I’m following liberal democracy; I want these fascist leftists to pee in their pants when they see opposition to them based solely on the heroes of American liberal democracy.
Epstein notes (pp. 283f.) the fundamental source of this political phenomenon, one which she calls (p. 284) "Kafkaesque":
This was due to the Israeli state’s viewing itself openly (at least in the early days) as a loyal protege of Soviet Russia, which found expression not only in the red flags and the singing singing of the Internationale. From the Six Day War until the collapse of the communist regime in Russia, Israel passed through a stage of liberalization. However, this liberalization actually was limited to a change in terminology alone. The people, their way of thinking, the political culture, and above all, the deeply-rooted conviction that the right and duty hold the reins of power were vested exclusively in ‘us’ – remained as firm as heretofore. Thus the previous totalitarian democracy assumed the guise of liberalism, appearing as a liberal-totalitarian or totalitarian-liberal dragon – in other words, ‘Israeli Bolshevism in the guise of Liberal Democracy’. … In this manner an intrinsic continuity was preserved between the innovative Israeli liberalism and those factors that begot and nourished it, namely, the late Russian totalitarianism.
Epstein further notes (p. 285) that of all Israelis, it is Soviet and American immigrants who are most critical of Israel’s so-called democracy, because the former lived in a real totalitarian regime (and know another when they see it), while the latter live in a real democracy (and recognize its absence). She says (p. 286),
These immigrants to Israel are conscious of how their conceptual world has been completely overturned. Totalitarian forces and processes are labeled ‘democracy’ and ‘liberalism’ in Israel, while phenomena which are essentially democratic and liberal are considered ‘fascist’ and totalitarian.
Feiglin describes at length (throughout his book) and Epstein more briefly (pp. 282, 285), how the non-democratically-elected judiciary and media elites hold the real reigns of power in Israel, meaning that it makes little difference which party is actually elected. Thus, when Benjamin Netanyahu of Likud was elected after Rabin, he felt compelled to continue the same policies of Rabin (Netanyahu ceded Hebron), despite his political platform being totally contrary to Rabin’s. From this, Epstein derives (p. 282),
In any case, the will of the people, which found expression in free elections, does not materialize as a decisive factor in this reality; what is more, this will is effectively neutralized. It is not only the will of the majority that is marginalized, but also the will of the minority groups (apart from the minority [viz. Labor] which has the real governing power), … if they do not toe the line, the only politically-correct line, set in this state with its liberal-totalitarian regime.
As Moshe Feiglin relates in his book Bimqom She’ein Adam / Where There are No Men, he was convicted of sedition (sedition!) by the Israeli Supreme Court, because of his nonviolent civil disobedience. The Supreme Court accepted the argument of the prosecution that nonviolent civil disobedience is valid only in undemocratic totalitarian regimes, but that such civil disobedience is illegitimate and seditious when used in a paradise and oasis of democracy like Israel. In Feiglin’s own words (Where There are No Men, pp. 165f.):
The prosecution in our sedition trial admitted that civil disobedience had always advanced the countries in which it had taken place to a higher moral plane and to a more benign regime. However, the prosecution argued, the activity of ‘Zo Artzeinu’ [‘This is Our Land’, Feiglin’s movement for civil disobedience via blocking highway traffic] could not be considered a valid case of civil disobedience in its positive democratic sense, because civil disobedience is typically called for in only unsavory regimes. When I stood up to present my defense summation, I referred to this argument and said: "I find it strange that the prosecution tried to argue a point that has absolutely no basis in history. Is the United States of Martin Luther King an example of an unsavory regime? Is England, against which Ghandi struggled, an unsavory regime? Is the France of the students’ revolt an unsavory regime? It’s true," I added, "that there was an attempt to carry out civil disobedience in a totalitarian regime; there were Chinese students who tried to do so in Tiananmen Square, and to everyone’s surprise, they succeeded. For several weeks it seemed to the outside world that it was indeed possible to carry out such action in a totalitarian state. But when the period of grace came to an end, the chains of the Chinese army’s tanks crushed the students in the square. Thus ended the idea that civil disobedience could take place in non-democratic countries. "In Israel as well, an attempt at civil disobedience took place in a certain square. It was known as Paris Square. The demonstrators at Paris Square were under the impression that they lived in a true democracy, a state in which such means would be tolerated. "Israel is certainly not a dictatorship, but, apparently, neither is it a true democracy. You, honorable judges, must now decide where Israeli democracy is headed – towards ‘Paris’ or ‘Tiananmen."
John Trenchard and Thomas Gordon put the matter well in "Cato’s Letters":
When a magistrate fancies he is not made for the people, but the people for him; that he does not govern for them, but for himself…the magistrate gives the name of sedition and rebellion to whatsoever they do for the preservation of themselves and their own rights.
Remember: Feiglin was not punished for his blocking roads per se. Obviously, blocking highways is illegal, but it was not for this that Feiglin was punished. He was convicted of sedition. Sedition. His nonviolent blocking of highways in civil protest was classified by the Israeli government as a sort of treason.
To return to Feiglin’s comparison between China’s Tiananmen Square and Israel’s Paris Square: Feiglin is referring to the numerous stories of police brutality related in his book. These stories are spread throughout the book, and the book lacks an index (so I cannot find them all easily), but pp. 143-149 and pp. 161-165 contain many such stories. The following story on pp. 161f. is typical:
Q. "What is your occupation, Mr. Bloch?" A: "I am now retired, but until two years ago I was a teacher of English at Bar-Ilan University." Q. "Please tell the court what took place at Paris Square." … A. "I saw the policemen entering the large courtyard near where I was standing and beginning to deliver blows. I took out my camera and began filming. Suddenly policemen swarmed around me. I turned and began to run [away from the police], behind a large crowd of others. I felt the blows raining down on my back [as he was trying to flee from police]… I said to myself, Menachem, that’s enough for one day. Enough. At the age of seventy, you have finally, for the first time in your life, suffered physical blows, and from the Israeli police, no less. OK. Enough. Now for home.
Feiglin adds, (p. 165),
We had believed that tied hands [emphasis added] held aloft in front of television cameras would prevent physical violence and enable us, despite everything, to move the wheels of non-violent, passive civil disobedience forward. We were mistaken, terribly mistaken.
On p. 235, Feiglin reports the testimony of Shmuel Sackett, who had engaged in non-violent civil disobedience in the United States, on behalf of Soviet Jewry. According to Sackett,
A police officer came up to me, stood in front of me, and began reading me my rights from a sheet of paper. "Sir, I wish to inform you that you are now violating such and such a law. Now, Sir, I will repeat this message three times." … That is what they did with each and every one of the thousand folk plunked down on that road. All traffic had come to a halt, while the police continued to work according to the rules.
In America, standing before a Soviet embassy, Sackett and a thousand others had their rights read three times to each and every single person. In Israel, in Paris Square, the police beat a seventy year old man who was in fact trying to flee from the police. That is Israeli democracy.
Reports are now just coming out about a seventeen page IDF Central Command document detailing plans to enforce the ten month settlement construction moratorium. The document promises "paralyzing force" against any settlers who resist; the forces involved include six brigades, the entire Border Guard forces, the Israel Air Force’s helicopters and drones, the Shabak (Shin Bet) and police, intelligence forces, and IDF reserve units. We might question whether all this so far is democratic or not. But one thing is surely not democratic by any stretch of the imagination:
The air force is expected to get involved by doing reconnaissance flights over the area.The IDF plans to shut down cellular phone services during the enforcement operation and to ban reporters from the scene. [Emphasis added.] ("Force not needed if settlers cooperate’"; Tovah Lazaroff, Yaakov Katz, and Jerusalem Post staff; Jerusalem Post, 20 December 2009, online here).
“The media must not be allowed to enter the inner circle [of the action].”[Emphasis added.] Some media outlets are already planning to protest to the Supreme Court against this violation of freedom of the press. “The nearby communities must be totally closed off, and people may be allowed to leave only for urgent needs. Cellular communication will be blocked off for the entire area [emphasis added] in order to prevent [the settlers from] alerting and calling each other to arrive at the site.” ("Settlers: Secret Plan Renders Barak ‘War Criminal’", Hillel Fendel, Arutz Sheva, 20 December 2009, online here).
And as Danni Dayan (head of the Council of Jewish Communities of Judea, Samaria and the Gaza Strip) has said quite to the point,
This is quite simply deployment for a military operation against an enemy. This is not the way to enforce a government’s decision applying to citizens in a democratic state. ("Right-wingers slam IDF freeze guidelines", Jerusalem Post staff, Jerusalem Post, 20 December 2009, online here.)
Likud MK Tzipi Hotovely has also put the matter well, when she said Barak’s decision to enforce the freeze "as though it were a military operation, by marking residents as enemies, is unreasonable", and that issues and events had "completely confused him as to the real enemies of the State of Israel" ("Right-wingers slam IDF freeze guidelines", ibid.). The shutting down of cellular networks and the banning of reporters from the scene certainly do not evince healthy democratic sentiments. It sounds more like China. How is democracy supposed to operate when the opposition is banned from communicating, and when reporters cannot enter the scene to report to the nation-at-large what is occurring? This has the trappings of another Tiananmen Square.
Perhaps Feiglin was accused of sedition because of the following very democratic, very pro-free-speech, very liberal, very un-fascist, very un-totalitarian beliefs of his:
It is a mistake to think that the state works within the boundaries of laws. The public does not obey laws. It obeys rules within the boundaries of a triangle, the first side of which is the law. But the triangle has two other sides: common sense and ethics. What if the Knesset passed a law requiring drivers to drive in reverse all winter? That would counter the logic side of the triangle. The public’s subsequent refusal would be the fault of the government, not of the public. In other words, the fact that we obey the law is not because of the law itself, but because it is logical enough to warrant our adherence. The third side of the triangle is ethics. If the government ordered us to drive our elderly and infirm out onto the frozen tundra, as per Eskimo custom, we might agree that it would logically enhance the economy. But nobody would obey, because it would be patently immoral. The party at fault for the insubordination would be the government that enacted the law and not the citizens who refused to obey. … The greatest crimes in human history were perpetrated when citizens ignored their duty to delineate logical and ethical boundaries for the rule of law. The societies in which this took place by and large collapsed. "Good men must not obey the laws too well," said Ralph Waldo Emerson. He understood what the [Gaza-]disengaging Israeli [leftist] tyranny no longer wants to hear. … In the past few weeks, soldiers from two separate units in the IDF expressed their civic responsibility by refusing to obey orders to expel Jews from their homes. These brave young men are positioned to save Israel from collapse. ("Insubordination Can Save Israel": Jerusalem Post, 30 November 2009, online here; Israel National News, 27 November 2009, online here; Manhigut Yehudit, 22 November 2009, online here.)
Feiglin often ("Insubordination Can Save Israel", ibid, as well as before the Supreme Court during his sedition trial, as related in Where There are No Men) quotes chapter 10 of The Little Prince by Antoine de Saint Exupéry:
"Sire–over what do you rule?" "Over everything," said the king, with magnificent simplicity. "Over everything?" The king made a gesture, which took in his planet, the other planets, and all the stars. "Over all that?" asked the little prince. "Over all that," the king answered. For his rule was not only absolute: it was also universal. "And the stars obey you?" "Certainly they do," the king said. "They obey instantly. I do not permit insubordination." "I should like to see a sunset . . . Do me that kindness . . . Order the sun to set . . ." "If I ordered a general to fly from one flower to another like a butterfly, or to write a tragic drama, or to change himself into a sea bird, and if the general did not carry out the order that he had received, which one of us would be in the wrong?" the king demanded. "The general, or myself?" "You," said the little prince firmly. "Exactly. One must require from each one the duty which each one can perform," the king went on. "Accepted authority rests first of all on reason. If you ordered your people to go and throw themselves into the sea, they would rise up in revolution. I have the right to require obedience because my orders are reasonable."
Of course, my opposition to the IDF comes from a right-wing perspective, and not a left-wing one. Think of all those crazy evil settlers in the West Bank; I’m one of them. But even if one disagrees with my views, classical liberalism still demands that I be granted my free speech and my right of conscientious objection, to disobey the law when I feel it is an unjust law. According to Israeli leftists, only leftists have a right to disobey military orders, but by contrast, rightists, they say, have an obligation to follow all orders unquestioningly. According to Israeli leftists, free speech and free expression and the right to conscientious objection only apply to those with whom they (the leftists) agree. But in truth, classical liberal thought declares that free expression and liberty apply to everyone, on either side of the political spectrum.
As I noted in the introduction to this piece, I oppose Oslo and land-for-peace because I feel that purely on non-religious security grounds, that Oslo is a human-rights disaster, resulting in tragic threat to human life. Based on similar sentiments, many Israeli Religious-Zionist rabbis have been advocating that soldiers disobey any actual orders to dismantle West Bank settlements.
("Rabbis: Soldiers must refuse IDF orders", Matthew Wagner, Jerusalem Post, 27 May 2009, online here; "Zionist rabbis back rebellious soldiers", Matthew Wagner, Jerusalem Post, 24 November 2009, online here; "Rabbi Melamed Puts the Facts on the Table", Tzvi Ben Gedalyahu, Arutz Sheva, 14 December 2009, online here.)
Many religious soldiers in Israel took this a step further, and protested not only at the time of any actual expulsion itself, but even protested during routine IDF ceremonies.
("Soldiers who brought pro-settlement sign to swearing-in to face tribunal", Yaakov Lappin, Jerusalem Post, 23 October 2009, online here; "2 soldiers jailed for settlement evacuation protest", Yaakov Katz and Matthew Wagner, Jerusalem Post, 16 November 2009, online here; "Soldiers Escalate War Against Expulsion", Tzvi Ben Gedalyahu, Arutz Sheva, 16 November 2009, online here; "Analysis: Soldiers’ insubordination a growing concern to IDF brass", Yaakov Katz, Jerusalem Post, 17 November 2009, online here; "MKs in uproar over soldiers’ protest", Yaakov Katz and Rebecca Anna Stoil, Jerusalem Post, 17 November 2009, online here; "Anti-Expulsion Anger Spreads, New Banner Found", Tzvi Ben Gedalyahu, Arutz Sheva, 19 November 2009, online here; "A Third Protest Sign: ‘Kfir Brigade Doesn’t Expel Jews’", Hana Levi Julian, Arutz Sheva, 20 November 2009, online here.)
In response, MK Ophir Pines-Paz (Labor), has said, regarding IDF soldiers refusing orders to carry out expulsions of Jews from the West Bank,
The rabbis’ call [on soldiers] to refuse [IDF] military orders undermines Israeli democracy. This is dangerous incitement that is liable to break up the IDF. I call on [Yesha] settlement leaders to distance themselves from these rabbis’ declaration. And I call on the attorney-general to open investigations against the rabbis for allegations of incitement. ("Rabbis: Soldiers must refuse IDF orders", op cit.)
Similarly, Kadima MK Nahman Shai, also regarding conscientious objection by soldiers, said,
In a democratic country, the army must not allow soldiers to take such a position. ("Kadima MK: Put Soldiers in Their Place", Israel National News, 24 October 2009. Online here.)
MKs Pines-Paz and Shai, respectively of the left-wing Labor and Kadima parties, are anything but "liberal" in their political ideology; they are rather quite authoritarian and fascist. Obviously, what these soldiers are doing is illegal, at least in Israel. (According to lawyer Nathan Lewin, in an op-ed to the Jerusalem Post, the sorts of protests that these IDF soldiers are engaged in, that are declared undemocratic and/or illegal in Israel, are actually perfectly protected and legal in the United States by the United States’s free speech and sedition laws. According to him, American court precedents are unanimous in affirming that the acts performed by these IDF soldiers – and sometimes, even hypothetical more severe and outspoken acts – would, if performed in America, be perfectly legal. See Nathan Lewin, "Is there free speech in the military?", Jerusalem Post, 27 October 2009, online here.) But even if these soldiers are violating the law, can their acts really be declared "undemocratic"? Does not democracy include conscientious objection? Martin Luther King, Jr. and Vietnam War objectors may have violated the law, but they were not "undemocratic".
And one must understand: in Israel, being called "undemocratic" is like being called "communist" in McCarthyist America (cf. Epstein above), or a "heretic" in a traditional religious society. It does not merely stop the discussion, though it does do that; once you’ve been tagged "undemocratic" in Israel, you’ve been written out of all dialogue; no one will listen to you anymore. It’s the ultimate below-the-belt attack when false, because it ensures that its target will instantly and irrevocably lose all credibility whatsoever. But being called "undemocratic" in Israel is more than this; as I said, it is like being called a "communist" in McCarthy America or "heretic" in a religious society. Being called "undemocratic" in Israel results in one’s being entirely ostracized, if not imprisoned. It is not merely an extremely harsh invective like "racist". Being called "undemocratic" in Israel essentially means that one’s entire speech is completely beyond the pale of anything remotely acceptable, and a reaction akin to the excommunication of Spinoza is not unlikely. Actually, the very fact that Israeli Leftists bandy about the terms "democratic" and "undemocratic" is testimony to their fascist McCarthyist conception of democracy. In America today, people don’t routinely call others "undemocratic"; the Republicans and the Democrats, the pro-choice and pro-life factions, etc. have many grave and vociferous disputes, but they don’t call each other "undemocratic", for such a label is tantamount to questioning another’s American bona-fides. Evangelical Christians have never gone so far as to claim that pro-choice advocates are un-American and ought to be stripped of their American citizenship. But Israeli Leftists, every time they accuse their opponents of being "undemocratic" (an accusation they make frighteningly often, bandying about the term "democratic" as if they make money off its usage), usually follow up their accusation with advocacy to ban the free speech of their opponent.
Thus, when Israeli leftists demand disobeying orders with which they disagree, I do not call them "undemocratic". I disagree with the leftists, and frankly, I consider their policies to be absolutely vacuous intellectually, but I do not call them "undemocratic". This would be false. If I deserve free speech, then so do they. It is important to note that Israeli leftists are quite willing to advocate that IDF soldiers disobey orders when it suits their own leftist causes; for example, many leftists in Israel refused to serve in Lebanon or Gaza. But I don’t begrudge them this; I recognize that if I deserve free speech and expression, then so do they. But what I am willing to offer them (being a liberal), they do not reciprocate.
…brand those as enemies to human society, who are enemies to equal and impartial liberty. … Freedom of speech is the great bulwark of liberty; they prosper and die together. — John Trenchard and Thomas Gordon, "Cato’s Letters"
The same leftist authoritarian stiflement of democratic free speech, as demonstrated by Shai and Pines-Paz, would be evinced by Defense Minister Ehud Barak (not to be confused with Justice Aaron Barak as cited by Epstein earlier); according to a statement issued by his office,
The defense minister rules that Rabbi Melamed’s actions and remarks undermine the foundations of Israeli democracy and have encouraged and incited some of his students to insubordination, protests and harming the IDF’s spirit, and there is no room for this in a normal country.("Barak decides to remove hesder yeshiva from IDF", Hanan Greenberg, Y-Net News, 13 December 2009, online here. Cf. "Barak severs ties with hesder yeshiva", Matthew Wagner and Yaakov Katz, Jerusalem Post, 13 December 2009, online here.)
In response, a group of rabbis
intend to tell Barak that “under no circumstances” will they allow “damage to the academic and Torah freedom of the hesder yeshivas.” In using the term “academic freedom,” the rabbis are co-opting a term which until now has usually been used by the Left to justify seditious statements by academicians. ("Rabbis: We Have Academic Freedom Too", Gil Ronen, Arutz Sheva, 7 December 2009, online here)
Indeed. Pray tell, why is Ehud Barak so determined to oust Rabbi Melamed’s yeshiva from the hesder program (due to Rabbi Melamed’s support for IDF insubordination), when Rabbi Melamed’s advocacy is actually quite tame and mild compared to that of countless leftist university professors? These leftist professors advocate total abstention from IDF service, complete draft refusal altogether, and yet nothing happens to them. By contrast, Rabbi Melamed tells his students that it is a mitzvah – a holy Divine Torah commandment – to serve obediently in the IDF, with just one exception (viz. orders to perform West Bank expulsions), and Rabbi Melamed is given nearly the harshest punishment Barak can mete out. Peculiar. Why such a blatant case of discrimination in honoring academic freedom?
But Barak’s most astounding and extraordinary misuse of the term "democracy" was yet to come. According to a later statement of his own, in a speech before Israeli high school students, he declared,
One of the foundations of a democratic state is a monopoly on the use of force on the one hand; on the other is the state’s authority over the citizens. [Emphasis added.] The citizens express their stances through political activity and the ballot box. The State has an army and the army is under the authority of the State, and of no other body. We are not the only country in the world in which the army is called upon to carry out civilian assignments. [Emphasis added.] When a state reaches the place in which it needs to enforce the law on citizens, in has no choice but to use its army. This instruction must also be carried out and obeyed, this is the true basis of democracy. [Emphasis added.] ("Barak: Hesder Arrangement with Har Bracha is Over", Gil Ronen, Arutz Sheva, 22 December 2009, online here.)
According to Barak, "[T]he true basis of democracy" is "to use its army…to carry out civilian assignments". True it is indeed, as Barak says, that Israel is "not the only country in the world" to do this. Indeed, Israel is in good company with all the police states of the world where martial law is declared! Barak adds that "One of the foundations of a democratic state…is the state’s authority over the citizens." Silly me, I thought that we followed John Locke that the government is "by the people, for the people" and with the "consent of the governed". Silly me. Will we have to censor John Locke now too, as a threat to democracy? Perhaps Thomas Jefferson too must be silenced? For, as Jefferson said (following Locke) in the United States’s Declaration of Independence,
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
That is democracy. Not Barak’s elected totalitarianism, which is nothing but fascism under a new title.
As an aside, there are those who do not merely abstain from calling Rabbi Melamed "undemocratic" (as per Barak), but more, who accuse Barak of being the undemocratic one!, for using the IDF, the Israel Defense Forces, in a way that it was never meant to be. In this vein, Rabbi Nachum Eliezer Rabinovich of the Birkat Moshe hesder yeshiva at Maaleh Adumim told Besheva magazine,
This [teaching] does not damage the unity of the army, rather the army will be united if it is not given orders that should not be given to it. Only in authoritarian dictatorships is it acceptable that the dictator uses the army according to his whims. But in a democratic country, the army is sacredly devoted to one thing – defending the country. This is how it should be, and that is what is written in the IDF’s ethical code. ("Rabbis: We Have Academic Freedom Too", op. cit.)
In like wise, Nachi Eyal, executive director of the Legal Forum for the Land of Israel, said that
the attack on the Har Bracha Yeshiva is an anti-democratic act by the defense minister, who disregards the law when it applies to himself and is stringent when it comes to his political rivals. This is a case of abuse of authority. The minister is forbidden to use his authority to force his political opinions on others. It will bring about dissent in the IDF. ("Barak severs ties with hesder yeshiva", Matthew Wagner and Yaakov Katz, Jerusalem Post, 13 December 2009, online here. Cf. "National Camp Enraged by Barak’s Decision to Oust Har Bracha", Avi Yellin, Israel National News, 14 December 2009, online here.)
Likewise, according to Rabbi Eliezer Melamed,
The defense minister’s accusations against our graduates and against me personally are blood libels which might promote him politically, but which are also destroying the army, national unity and the foundations of democracy. ("’Barak’s decision is a blood libel’", Tovah Lazaroff and Matthew Wagner, Jerusalem Post, 14 December 2009, online here)
Again, Rabbi Melamed said,
The public is being incited to believe that the rabbis are endangering the existence of the army. But this is not true. A defense establishment which makes it possible to drag the army into political disputes is the one endangering the army, because there is no conflict between the commander and the rabbi on security matters. The Halacha [Jewish Law] says that a soldier must obey his commander in both training and battle. ("R. Eliezer Melamed: ‘Malevolent’ Defense Min. Libeling Yeshivas", Gil Ronen, Arutz Sheva, 14 December 2009, online here)
According to Eyal and Rabbis Melamed and Rabinovitch, it is not the insubordinate soldiers who disrupt unity in the IDF; it is Barak, who uses the Israel Defense Forces as a police force. And thus, they say it is Barak who is being anti-democratic, not the rabbis. It is because of this that a bill is presently in the Knesset that, if passed, would forbid the use of the IDF in the way that Barak has been using it. ("Proposed Bill: Soldiers Won’t be Used to Evict Jews", Hillel Fendel, Arutz Sheva, 17 November 2009, online here.) Rabbi Melamed even says that Barak’s method of dealing with Rabbi Melamed is undemocratic:
Har Brachah Hesder yeshiva Rabbi Eliezer Melamed told Arutz 7 that he did not accept Defense Minister Ehud Barak’s summons to a “hearing” Sunday evening because discussions cannot be conducted under “tyrannical” pressure. He also said he never advised students to protest expulsion orders from within the IDF. … He also refused to sign the letter [denouncing soldier protests, a letter whose contents he actually agreed with!!] because of the manner in which Barak acted. … One must not sit down in discussion under government pressure, and a rabbi must be able to express his inner truth. What would happen if a rabbi reasoned that soldiers have an obligation to protest in public ceremonies? Would the rabbi have to remain quiet and hide his opinion, which he has an obligation to express? I will not surrender to Barak’s tyrannical pressure and that is why did not agree to attend a "hearing" under an ultimatum, expressions that that show no respect towards those who deserve the freedom of thought and expression." ("Rabbi Melamed Puts the Facts on the Table", op. cit.)
Similarly, former National Religious Party/National Union MK and portfolio’ed minister Rabbi Yitzhak Levy has come out against Barak’s undemocratic authoritarian heavy-handed tactics:
Levy said that Barak has “climbed a tall tree” in the conflict with Rabbi Eliezer Melamed. “There is a dispute over what is the best thing for everyone. Is the rule what the Defense Minister said or do we need to allow freedom of expression? [Emphasis added.] We are in an uncomfortable situation, but the Minister of Defense cannot tell rabbis to shut up. [Emphasis added.] When the Defense Minister made his decision he brought about the closing of a Hesder yeshiva. This is not the way to do it. If he thinks the rabbi was wrong he should call the rabbi and find out, but why hurt the students? ("Former Minister Yitzchak Levy: Barak Went Too Far", Gil Ronen, Arutz Sheva, 17 December 2009, online here).
I might note that I oppose Lieberman’s Naqba policy, that is, his banning the observance of Naqba ("The Disaster" – Israel’s Independence Day) by Arabs. Now, I agree with Lieberman that any Arabs who observe Naqba are probably terrorists. Nevertheless, I oppose the curtailing of their free speech; if I deserve free speech, so do the Arabs. My brother added to me that even pragmatically, it is preferable that any terrorists openly voice their opinions. If we ban free speech, we only force the subversive speech underground. It is better that all speech be permitted, in order that it remain public. Additionally, as Dr. Jason Kuznicki argues in "Cato Policy Analysis no. 652: Attack of the Utility Monsters: The New Threats to Free Speech" (here – I am indebted to my brother for pointing me to this source), the truth is strong enough on its own; if we let any and all speech be permitted, then evil speech may be combated with good speech, and the good speech will surely prevail on the battlefield of ideas. Not only is curtailing free speech unjust and immoral, but it is not even necessary.
But I ask: if Israeli Arabs have a right to mourn Israel Independence Day as "The Catastrophe" – and this mourning surely is not a harmless benign activity devoid of threat to the state of Israel’s security and stability! – then should not right-wing religious Israelis have an equal right to free speech? If Arabs may rebel against the Israeli government, surely right-wing religious Israelis should have the same right.
It is also important to note that there is no official Israeli protection of free speech. None. What is contained in the United States’s Bill of Rights, has no counterpart in Israeli law. Free speech is protected in Israel by custom, but not by law. If the Israeli government passed a new law forbidding the study of Torah or biology, for example, there is nothing in Israeli law that would render this law unconstitutional. Israel has no constitution. At nearly any moment, if the left gained enough support for the move, they could immediately ban all right-wing discourse with no change in the laws on the books. All they’d have to do is accuse every right-winger in Israel of sedition, and assuming the Israeli powers-that-be did not protest, the left would get away with this, with no change whatsoever in the actual laws on the books. The Israeli law of sedition is very vague; I forget the exact wording (it is quoted in Feiglin’s Where There are No Men, but I lack a copy on hand), but it is something like, "Any act or speech designed to undermine the existence of the state, or expressing fundamental disagreement with the state and its policies", or some such. As Feiglin pointed out, this was a carte blanche, and almost any bubbe who disliked a given prime minister could be convicted of sedition under this law. Theoretically, all you have to say is, "I disagree with Olmert/Netanyahu that such-and-such is being done, and I respectfully propose an alternate policy", and theoretically, you could be convicted and jailed for sedition. This is unlikely, but only because the left does have some limit and conscience. But legally, the laws on the books already would permit this conviction of sedition; it is not the law that protects in this case, but people’s consciences. If their consciences change, the law is already in place to convict anyone and everyone of sedition without a moment’s notice. When Feiglin disagreed with specific policies of Rabin, after Rabin’s death, Feiglin was accused in nearly all the media outlets of incitement to murder Rabin. (Israel had its own McCarthy era; almost every right-winger of prominence was accused of incitement to murder, even without evidence.) By contrast, when prominent leftists on the radio would explicitly advocate the assassination (yes, assassination!) of Sharon, or call IDF soldiers "Judeo-Nazis", no one minded. Another example (related in The Late Great State of Israel, and summarized in "Israel’s War Against the Jews?", Arutz Sheva, here): there is not a single right-wing radio station in Israel. Why? Because it (Arutz Sheva – Channel 7) was shut down. Technically, this was lawful; the station was denied a broadcasting permit, and without this permit, shutting down the station naturally followed, all according to the law. But the station was not denied a permit because of anything illegal it did; it’s just that the broadcasting authority denied a permit because it wanted to, end of story. Simple as that. So when the radio station moved offshore, out of Israeli territorial waters, Israel accused the ship of interfering with air traffic, and Israel furthermore extended the range of its territorial waters, in an effort to include this broadcasting ship within Israeli territory. Never did Arutz Sheva break any laws, to my knowledge. Certainly, I haven’t heard of anything it did so egregious that it deserved to be entirely shut down altogether. It’s just that Arutz Sheva was right-wing, and so it was denied a broadcasting permit. Nothing more than that. Similarly, the Left is trying its best (and it appears to be making successful headway) to ban Israel’s only right-wing newspaper, Yisrael Hayom ("Legislative Bid to Block Freebie Paper’s Growth", Hillel Fendel, Arutz Sheva, 10 December 2009, online here). The Left claims Yisrael Hayom must be shut down to save democracy, because it (a newspaper owned by a non-Israeli) is outselling the more established Israeli newspapers. Apparently, capitalism (such as letting Israeli citizens choose which newspaper they desire, even one owned by a non-Israeli, and voting with their pocketbooks) is not part of democracy, according to these leftists. It seems most likely that the real reason for the Left’s animosity against Yisrael Hayom is the same reason that so many Israelis are choosing it over the most established Israeli newspapers, viz. that it is a right-wing newspaper and offers a different perspective than the Left-monopolized media. In Israel, there is a war occurring between the Left and Right, and you cannot ignore it. Moshe Feiglin, for example, won enough votes in the Likud primary to be in the general elections, but Netanyahu tampered with the votes and knocked Feiglin from 20th to 40th place, to ensure that he wouldn’t make it to the general elections. The Israeli Supreme Court was perfectly aware of what Netanyahu did, but didn’t interfere, because Feiglin is on the right. There’s your Israeli free speech.
An appendix on the nature of democratic election, and its authority over the populace: Many will claim that
We must obey the law under a contract with other members of our society. We have tacitly consented to the laws by residing in the state and enjoying its benefits. (Peter Suber, "Civil Disobedience", in Christopher B. Gray (ed.), Philosophy of Law: An Encyclopedia, Garland Pub. Co, 1999, II.110-113. Online here).
But Professor Suber answers this objection (ibid.):
Reply: Obviously this objection can be evaded by anyone who denies the social contract theory. But surprisingly many disobedient activists affirm that theory, making this an objection they must answer. … But even for Locke, whose social contract theory introduces the term "tacit consent," the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law, but a perversion of law (Augustine, Aquinas). Hence, consent to obey the laws does not extend to unjust laws. A reply made by many Blacks, women, and native Americans is that the duty to obey is a matter of degree; if they are not fully enfranchised members of American society, then they are not fully bound by its laws.
John Trenchard and Thomas Gordon, in their "Cato’s Letters" (which followed the thought of John Locke) noted that since every man has a right to his property, and every man has a duty not to impinge or infringe on another man’s property, therefore, the government can only have those powers which each individual man grant it. The government has only those powers which men grant it (since men by default have full rights to their own property), and no man can grant the government power over another man’s property (since every man’s property is his own, and no one else’s to give away). In their own words, Trenchard and Gordon say,
The two great laws of human society, from whence all the rest derive their course and obligation, are those of equity and self-preservation: By the first all men are bound alike not to hurt one another; by the second all men have a right alike to defend themselves. Government therefore can have no power, but such as men can give…no man can give to another what is none of his own… Nor has any man in the state of nature power…to take away the life of another, unless to defend his own, or what is as much his own, namely, his property. This power therefore, which no man has, no man can transfer to another. Nor could any man in the state of nature have a right to violate the property of another…as long as he himself was not injured by that industry and those enjoyments. No man therefore could transfer to the magistrate that right which he had not himself. No man in his senses was ever so wild as to give an unlimited power to another to take away his life, or the means of living… But if any man restrained himself from any part of his pleasures, or parted with any portion of his acquisitions, he did it with the honest purpose of enjoying the rest with greater security, and always in subservience to his own happiness, which no man will or can willingly and intentionally give away to any other whatsoever.
In fact, as we see from "Cato’s Letters", the Locke-ian Constitution, without any Amendments, would forbid taxation for the purpose of social welfare. According to Locke-ian morality, liberty and justice dictate that while one has a right to life and liberty and property, this right means only that others may not interfere with it. That is, one has a right to whatever property he has earned himself, and others have an obligation to respect that right. But the government cannot tax the people to provide social welfare, for this constitutes stealing property from one man in order to furnish it for another. Since every man’s property is his own, and since no man may take another man’s property without the owner’s permission, therefore, the government has no right to tax individuals without each and every one of these individuals’ consent. The majority cannot agree for everyone (including the minority) to be taxed, because the majority has no right to grant the government a right (viz. taxation) which they (the majority) do not have themselves. The majority cannot physically take the minority’s property, and so the majority cannot grant the government this power either. See also The Rise of Government and the Decline of Morality" by James A. Dorn.
Additionally,this appeal to democratic election has a crucial error in logic. People assume that because the government was elected by the majority, therefore, the government has absolute power, and can claim fealty even from that minority which did not elect it. But whence this idolatrous worship of democracy? What ontological metaphysical property, pray tell, attaches itself to democracy? Democracy was invented by man; what in its essence is given the force of nature, that whatever democracy produces is ipso facto assumed to be authoritative? Why is the minority bound by the majority? As Yoram Hazony states (The Jewish Origins of the Western Disobedience Tradition (Azure, Summer 5758/1998, pp. 17-74.), pp. 62, 20.):
Mankind has seen no end of attempts to render human laws inviolable in principle, usually on the grounds that one process or another has produced them: There have been those who claimed that the laws of the state were legitimate and binding because the earthly ruler was a god; those who claimed that the laws of the state were legitimate and binding because the ruler was appointed by God; and those who claimed that the laws of the state were legitimate and binding because the ruler was a hereditary monarch. Today it is the fashion to claim that the laws of the state are legitimate and binding because its leaders were chosen in democratic elections. And while democratic elections may indeed be the best steward of right that men have yet devised, this fact no more makes them the final arbiter of right than did the similar popularity of now outmoded political regimes in ages past. … [U]nqualified obedience to the state is the fundamentally pagan idea, the essential political teaching of the great idolatries of antiquity; … freedom of conscience and disobedience to unjust law are the core of the biblical political teaching, which arose as a rejection of pagan statism; and … the adoption of the Jewish obedience teaching by the West – and the victory of the biblical principle of obedience to right over the pagan principle of obedience to the state – represents the highest triumph of the Jewish political idea in history, a triumph which allowed the West, the great bearer of this idea before humanity, to defeat the pagan Nazi state, not only militarily, but on the battlefield of ideas as well.
The fear of the majority tyrannizing the minority was a real fear in the Federalist Papers (written by the Framers of the Constitution),and this fear is responsible the United States’s electoral college system, which tries to ensure that the majority cannot easily elect a president that will tyrannize the minority. As it says in "Cato’s Letters":
It is a mistaken notion of government, that the interest of the majority is only to be consulted…otherwise the greater number may sell the lesser, and divide their estates among themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority…
Or as Henry David Thoreau says in "Civil Disobedience",
After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But government in which the majority rule in all cases can not be based on justice, even as far as men understand it.
Finally, in an exceedingly lengthy and complex argument which bears very close and scrutinizing reading, Ralph Waldo Emerson argues against the majority coercing the minority, especially via taxation. He says that the majority (through the government) coercing the minority is no different than one individual personally and physically coercing another, even though this similarity is not obvious to the naked eye. In his own words, in his "Politics", he says
Every man’s nature is a sufficient advertisement to him of the character of his fellows. My right and my wrong, is their right and their wrong. Whilst I do what is fit for me, and abstain from what is unfit, my neighbour and I shall often agree in our means, and work together for a time to one end. But whenever I find my dominion over myself not sufficient for me, and undertake the direction of him also, I overstep the truth, and come into false relations to him. I may have so much more skill or strength than he, that he cannot express adequately his sense of wrong, but it is a lie, and hurts like a lie both him and me. Love and nature cannot maintain the assumption: it must be executed by a practical lie, namely, by force. This undertaking for another, is the blunder which stands in colossal ugliness in the governments of the world. It is the same thing in numbers, as in a pair, only not quite so intelligible. I can see well enough a great difference between my setting myself down to a self-control, and my going to make somebody else act after my views: but when a quarter of the human race assume to tell me what I must do, I may be too much disturbed by the circumstances to see so clearly the absurdity of their command. Therefore, all public ends look vague and quixotic beside private ones. For, any laws but those which men make for themselves, are laughable. If I put myself in the place of my child, and we stand in one thought, and see that things are thus or thus, that perception is law for him and me. We are both there, both act. But if, without carrying him into the thought, I look over into his plot, and, guessing how it is with him, ordain this or that, he will never obey me. This is the history of governments, – one man does something which is to bind another. A man who cannot be acquainted with me, taxes me; looking from afar at me, ordains that a part of my labour shall go to this or that whimsical end, not as I, but as he happens to fancy. Behold the consequence. Of all debts, men are least willing to pay the taxes. What a satire is this on government! Everywhere they think they get their money’s worth, except for these.