The David Haivri Case
Expert Opinion Presented to the Magistrate Court in Jerusalem
Paul Eidelberg
A.
Introduction
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The David
Haivri case involves, initially, a clash between two democratic
principles: freedom and equality. Printing the picture of Rabbi Kahane on
the front of a number of shirts and on the back thereof the slogan “No
Arabs No Terror Attacks” manifests the democratic principle of the freedom
of expression. Conversely, the phrase “No Arabs No Terror Attacks” has
been construed by the prosecution as “racist”, and racism offends the
democratic principle of equality.
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Section
144B of the anti-racism law states that “one who publishes a matter for
the purpose of incitement to racism, may be incarcerated for five years”;
and that “it does not matter if the publication led to racism or not, and
if it contained truth or not.” This means that one may be imprisoned for
five years for publishing words which, whether true or not, hurts no one!
This is a remarkable infringement on freedom of expression.
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What
makes this infringement all the more remarkable is that whereas publishing
the slogan “No Arabs No Terror Attacks” need not harm anyone even if the
slogan contains truth, that slogan, if true, threatens the lives of Jews
and even Israel’s existence! Which means section 144B of the anti-racist
law is based on moral obscurantism. The law clearly implies that freedom
of expression in Israel does not include the freedom to publish the truth
about the relationship between Arabs and Arab terrorism, hence about this
threat to Israel’s existence.
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Contrast
the libertarian position of the Supreme Court. The court recently quashed
the Attorney General’s indictment of Talib a-Sana for incitement, when
this Arab MK, in an interview on Abu-Dhabi TV, not only praised a suicide
bombing attack in Israel but also called for more of the same. What does
this ruling have to do with the anti-racism law?
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Although
both involve the democratic principle of freedom of expression, the
anti-racist law and the Supreme Court ruling in the Talib a-Sana case also
implicate the democratic principle of equality.
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By
making it a crime for a member of one ethnic group to publish a matter
that degrades another ethnic group, the anti-racist law implies that all
ethnic groups are morally equal even if the matter disparaging one group
is true. The law is paradoxical. It renders two groups morally equal
even if, in respect to terrorism, they are not morally equal! We have
here, at first glance, the doctrine of moral equivalence – a doctrine
peculiar to democracy.
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Notice, moreover, that whereas it is illegal to denigrate Arabs by
associating them with terrorist acts against Jews, it is not illegal to
praise Arabs for perpetrating terrorist acts against Jews! Viewed in
this light, this is not moral equivalence but moral reversal!
In both instances the Jews, not the Arabs, are placed at a racial
disadvantage. One may therefore conclude that the anti-racist law as
well as the Supreme Court ruling in the Talib a-Sana case are
unwittingly racist! While the racist law endangers Jews, the court’s
ruling not only endangers them, but also permits their degradation by
giving Arab MKs a license to praise Arabs for killing Jews.
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Confining
ourselves to the anti-racist law, its assumption regarding the equality of
Jews and Arabs logically involves a basic contradiction between this
democratic principle and Israel’s survival as a Jewish state. The time has
come to explore this contradiction on philosophical grounds. To put the
issue another way: Is democracy compatible with Judaism?
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Before
probing this issue, it should be noted that prominent Israelis – including
Supreme Court president Aharon Barak and various rabbis – claim that
democracy and Judaism are compatible. This claim would have amused or
astonished Benedict de Spinoza. I mention Spinoza because he is not only
the father of liberal democracy, but also of modern “biblical criticism”
which so much influenced the founders of the Jewish state. As may be seen
in his Theological-Political Treatise, Spinoza was the first
philosopher who was both a democrat and a liberal.1
His Treatise disdains Judaism as a tribal religion and exalts
democracy as “the most natural form of government”, for there “every man
may think what he likes, and say what he thinks.”2
Spinoza’s view of democracy clearly contradicts the anti-racist law. But
like the anti-racist law, Spinoza’s libertarian view of democracy also
makes truth irrelevant in that form of government. Indeed, Spinoza
prepared the philosophical grounds for the absence of moral norms peculiar
to contemporary democracy. But if contemporary democracy is
normless, it contradicts Judaism, whether Judaism is understood as a
tribal religion or not. In what follows, I shall elaborate on the
contradiction between Judaism and democracy and I will show in the process
that Judaism is not a tribal religion.
B.
The Meaning of Democracy3
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Democracy
literally means the “rule of the people” or popular sovereignty. Stated as
such, and without qualification, the notion of popular sovereignty, and
therefore democracy, clashes with the Torah which proclaims the
sovereignty of God.
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Etymology
aside, judging from the prevailing ideas and behavior of Western
societies, contemporary democracy is little more than a random
aggregation of individuals and groups pursuing their own aims and
interests. The result is ethnic pluralism or multiculturalism, fortified
by the doctrine of moral or cultural relativism that dominates every level
of education in the West. Lacking in contemporary democracy are not only
unifying norms of human conduct, but any rational basis for national
loyalty. Being normless, contemporary democracy denies the existence
of universally valid standards by which to determine whether the way of
life of one individual, group, or nation is intrinsically superior to that
of another – superior in the sense of being more conducive to human
excellence or to domestic and international harmony.
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Stated
another way, contemporary democracy – which is not to be confused with
Athenian democracy – does not entail any particular ethnic or religious
character. This is why there are no ethnic or religious qualifications for
voting or holding office in contemporary democratic regimes, with the
(ethnic) exception of Japan. In fact, political scientists define
democracy as a “process” or the “rules of the game” by which individuals
pursue their private interests and lifestyles. In contrast, Judaism is a
nationality, a prescribed way of life. To be more precise, Judaism
has endogamous marriage laws and ethical precepts, its own distinctive
jurisprudence and economy, its own system of education and national
literature. All this is quite foreign to contemporary democracy.
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Also,
democracies separate religion from the state or public law. The idea of
separating religion and state originated in the Christian doctrine,
“Render unto Caesar the things that are Caesar’s and unto God the things
that are God’s.” This doctrine severed Christianity from nationality
and eventually made religion a private matter. Applied to Israel, this
Christian doctrine would marginalize the Torah, as indeed it has. Only a
few instances of Jewish civil law have been incorporated into Israel’s
legal system. Consequently, Jewish civil law hardly influences the daily
life of the Jewish people, as it did throughout the Diaspora, wherever
Jews, prior to the 18th century, enjoyed juridical autonomy and
creatively applied Jewish law to the most diverse social and economic
conditions.
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This
said, let us examine democracy’s two basic principles, freedom and
equality, from a Torah perspective. By so doing it will be possible to
develop a new conception of democracy, which, I dare say, will refute
Spinoza’s view of Judaism and transcend the normless democracy of which he
is the father.
C.
Freedom
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Freedom
is one of the most precious jewels of the Torah, so precious that
kidnapping and depriving a man of his freedom is a capital offense (Exodus
21:16). Why this exaltation of freedom?
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To begin
with, the Torah’s conception of freedom is rooted in the Genesis account
of man’s creation in the image of God. Therein is the ultimate source of
free will and rationality, of human dignity and creativity, of human
rights and duties. Freedom is a gift with which all men are endowed, be
they Jewish or not. For the Jews, moreover, freedom also has a national
dimension, emphasized repeatedly in the Torah and in Jewish prayer books,
namely, the deliverance of the Children of Israel from Egyptian bondage.
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The
freedom attained in the Exodus, however, was not merely freedom from
Egyptian servitude, which is negative, as much as the positive freedom to
serve God. (See Exodus 7:16, 8:16, 21-22.) Jewish freedom therefore
involves dependence on God and on God alone, and it is this dependence
that has made Jews the most independent and creative of men, despite their
having been reviled and decimated by the gentile world. But to better
appreciate the Torah’s conception of freedom, let us pause and consider
various definitions of freedom advanced by modern democratic thinkers.
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If
freedom is to be consistent with man’s creation in the image of God it
cannot be defined, as did Bertrand Russell, as “the absence of obstacles
to the realization of one’s desires”. Translated by the vulgar into
“living as one likes”, this is the prevalent view of freedom in the most
“progressive” democratic societies. Nor will true freedom be found, as
Montesquieu believed, in the interstices of the law, such that one may do
whatever the law does not forbid. This view of freedom, like the former,
can justify the sexual perversions decriminalized by the American and
Israeli Supreme Courts. Nor does freedom consist in obedience to laws in
whose formulation one has merged his will with the will of others, that
is, Rousseau’s “general will”. The general will can be as frivolous or as
unjust as the will of a tyrant. To be consistent with man’s creation in
the image of God, freedom must be the voluntary and rational observance
of laws which are independent of human volition. Let me explain.
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Philosophically speaking, freedom is a pure potentiality, whose
actualization can be good or bad, noble or base. If freedom is to result
in good, it must conform to the dictates of right reasoning. As Plato and
Alfred North Whitehead saw, genuine freedom is action consistent with
reason and truth. This view is logically related to the Torah concept that
God, Who alone is absolutely free, is the ultimate source of truth and of
human freedom. Accordingly, to understand His laws and willingly obey them
is to achieve the height of human freedom, for only those laws are wholly
just and rational.4
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For a
person at that level, the laws of morality are equivalent to the laws
of nature, except that, unlike mindless nature, he freely obeys
that which he knows to be the crystallized thought of God. Freedom then
becomes necessity, and the will becomes thoroughly rational.
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Now let
us consider this passage from Israel’s Declaration of Independence: “The
State of Israel ...will be based on freedom...as envisioned by the
Prophets of Israel; it will ensure complete equality of...political rights
to all its inhabitants irrespective of religion...” Any intelligent and
honest person, even if not religious, will admit that the Prophets’
understanding of freedom differs from the permissive freedom of
normless or contemporary democracy. Viewed within the context
of the Torah, the freedom of the Prophets is conduct consistent with the
will of God. Their prophecies may be understood as the crystallized
thought of God.
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Clearly,
the Prophets did not regard “freedom”, as do the vulgar, as “living as you
like”, which makes all “lifestyles” morally equal. Notice, however, how
the Supreme Court never speaks of freedom as envisioned by the Prophets of
Israel. Instead, the court tendentiously focuses on the democratic
principle of equality. Let us examine this principle from a Torah
perspective.
D.
Equality
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As was
the case of freedom, the only solid and rational justification for the
principle of equality is to be found in the Genesis account of man’s
creation in the image of God. This equality underlies a famous statement
of the Jerusalem Talmud: “If gentiles [surrounding Israel] demand,
‘Surrender one of yourselves to us and we will kill him; otherwise we
shall kill all of you,’ they must all suffer death rather than surrender a
single Israelite to them” (Terumot 8, 9). This means that no
individual may be sacrificed for the sake of his society. With respect to
human life, therefore, all Jews – learned and unlearned, rich and poor –
are equal. This equality, however, should not be confused with its secular
counterpart. For as concerns danger to life, the conclusion that all Jews
are equal is based on the premise that all souls belong to God, that the
soul of an individual and his purpose in world-history is known only to
his Creator.
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Furthermore, unlike democratic equality, equality in the Torah has nothing
to do with equal rights or claims which one abstract individual may make
against another. A person’s “rights” depend on who or what he or she is in
relation to Jewish law, the Halakha. For instance, in procuring
their release from captivity, “A Kohane takes precedence over a Levite,
a Levite over an Israelite, and an Israelite over a bastard... This
applies when they are all [otherwise] equal; but if the bastard is learned
in the Torah and the Kohane is ignorant of the Torah, the learned bastard
takes precedence over the ignorant Kohane” (Mishna, Horayot
3:8). Similarly, under Jewish law “a scholar takes precedence over a
king of Israel”
(Horayot 23a).
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Finally,
“If a man and his father and his [Torah] teacher were in captivity [for
ransom], he takes precedence over his teacher and his teacher takes
precedence over his father, while his mother takes precedence over them
all [if only because of her greater vulnerability]” (ibid.). Clearly, the
order of precedence is determined by learning, unless a woman’s life or
honor is at stake. Moreover, if a man has not left enough to provide for
both his sons and his daughters, the first claim on the estate is that of
his daughters.
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These
examples demonstrate that equality in the Torah does not involve the
leveling of distinctions characteristic of contemporary or normless
democracy, where indiscriminate equality or moral equivalence prevails.
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It is
precisely the democratic principle of equality that most clearly reveals
the contradiction between democracy and a Jewish state. For given the
prolific birthrate of Israel’s Arab citizens, the democratic principle of
one adult/one vote will sooner or later enable these Arabs to become a
majority in the Knesset and then, through perfectly legal means, transform
Israel into an Arab-Islamic regime. However, such a regime, following the
pattern of all other Arab-Islamic regimes, will not be a democracy. It
would then follow that the democratic principle of one adult/one vote
dooms the only democracy in the Middle East.
E.
Conclusions
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To transcend contemporary or normless
democracy, it will be necessary to derive freedom and equality from the
Genesis conception of man’s creation in the image of God. This will
provide freedom and equality with the ethical and rational constraints
operative in normative or classical democracy. Instead of
assimilating Judaism to democracy, the tendency of apologists, democracy
should be assimilated to Judaism. The term democracy could then be
incorporated into the language of Israeli public discourse by redefining
democracy as “the rule of the people under God”.
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The case against David Haivri should be
dismissed, and the anti-racist law should either be rescinded or
drastically amended so as not to make it illegal to publish the truth
about Arab terrorism in Israel.
Endnotes
1 |
See
Strauss, Liberalism Ancient & Modern, Basic Books, 1968,
p. 244. As Strauss notes, Spinoza hated Judaism as well as Jews,
an attitude Hermann Cohen deemed “unnatural” and even as a humanly
incomprehensible act of treason.” I mention this because one may find
a similar phenomenon among certain Jews in Israel today. |
2 |
The Chief Works of Benedict de Spinoza, Dover: 1951, I, 207, 257,
263, 265. |
3 |
For a
more extensive view of this subject, see the author’s, Jewish
Statesmanship: Lest Israel Fall, Ariel Center for Policy Research,
2000; University Press of America, 2002, ch. 3. |
4 |
As
Schiller put it, “Where justice and reason reign, ‘tis freedom to
obey.” |
|