I am Not in the Radical Right

By: Shahar Ilan

An interview with Prof. Ruth Gavison: This is the third part of a three part series, in which Prof. Gavison expresses her thoughts and concerns about the future of the Zionist enterprise - the State of Israel.

PART III

Provincial discourse

Gavison does not want to discuss in depth the argument between Supreme Court President Beinisch and Minister Friedmann over the authority of the courts.

"The fact that it has become a matter of personal delegitimization has become a problem in itself," she explains, referring to the standoff between the two. She herself has plenty of criticism for the Supreme Court.

"Taking the stance that ... reexamining the authority of the Supreme Court or the attorney general can be seen as a threat to the rule of law seems dangerous to me," she says. "I've always thought that some of the problems Friedmann is bringing up are serious and worthy of public discussion. This importance existed before Friedmann's tenure and it will still be there after it. But it's important that changes of this sort be made in such a way that the cure doesn't turn out to be worse than the illness."

What problems do you feel are especially urgent?

"For example, the court frequently deals with subjects that in any other nation would be considered patently nonjusticiable. It's not in its authority and it doesn't matter if in the end it doesn't intervene, because that obliges the state to provide an explanation for things which don't require explanation. And it is often damaging as well, because there are cases that the High Court discusses and if it then rejects a petition, it looks as if the court is giving legal legitimacy to issues that are subject to political and ideological debate. Prisoner exchange deals, for example.

"I also believe that the attorney general wields authority in too many areas, which sometimes conflict with each other. The existing situation makes it difficult for him to successfully carry out his duty to give the government suitable advice and representation, and at the same time to protect the public interest and preserve the independence required of someone who is serving as the chief prosecutor. This is particularly true when it comes to elected public officials."

Many intellectuals feel that you've lost a lot of your legitimacy because of these positions.

"You're mistaken about that. There is very strong support for my position among jurists, sociologists and political scientists. Some of them voice this support, others don't perhaps. My position is certainly not a minority position. The debate about the authority of the Supreme Court is going on in every country in the world. People with noncontroversial liberal commitments believe that judges should not be ruling on these questions. There's a provinciality of the legal discourse here that leads to the assumption that [judges] can and should be the arbiters in these matters.

"But there's something else that has to be borne in mind: that the tendency here is to divide the political forces into the good guys and the bad guys, and the perception is that the Supreme Court is unequivocally on the side of the good guys. Criticism of the court, or any provision of ammunition to its adversaries, is therefore perceived as deserting the forces of good. This is a superficial and dangerous viewpoint."

For a long time, you were then-justice minister Tzipi Livni's candidate for the Supreme Court. Have you abandoned that ambition?

"Serving on the Supreme Court is certainly a summit for jurists to attain. I was pleased that some people thought I was suited for it and I was prepared to try for it. But my activity in Metzilah certainly ought not to be construed as giving up. Metzilah's vision is primarily not a legal one and I can contribute to its advancement much more by not being a justice."

One part of her effort to create a united Zionist movement has been the Gavison-Meidan covenant. "The idea that two different population groups that wish to live together should make a covenant seemed like a wonderful idea to me. I don't feel any need to apologize for this document," she explains. "It can only improve things."

In the name of the secular public, you gave up the right to shop on Shabbat.

"I didn't give up anything because I don't represent anything. If the public doesn't want it, it won't adopt it. It's not the public that's pushing the matter of shopping on Shabbat, but interested parties who want the profits. I'd like there to be one day in which the experience of the entire state is different, a day that is more spiritual and less focused on consumption. A common day of rest seems to me like an incredible thing. Not only do I see no need to apologize for it. I'm all for it. I hope the next Knesset will adopt this law."

You and Meidan proposed an arrangement for civil marriage that would apply only to heterosexual couples. Why should same-sex couples have to give up their right to marry in the framework of your compromise?

"I think that human beings have a right to live their lives in the family frameworks that they choose, including same-sex frameworks. They want their right to be married in the State of Israel to be recognized. I don't know if they have such a right. The covenant did not take from them any right that they have."

The question is whether this is a natural, given right.

"I don't think that it's a natural right. I believe that a society is permitted to decide that it does not wish to recognize such marriages. In general, I'm against an 'inflation' of natural rights. If a natural right is supposed to be something that was always correct and recognized, then this certainly isn't a natural right. Is it a human right that is deserving of recognition in international documents on human rights? The answer is that it has so far not gained such recognition and the international documents all speak about a man and a woman. The Christian culture is certainly against it. The religious cultures look upon it as an abomination."

But you proposed a new arrangement. Why should it discriminate against same-sex couples?

"In Israel there is very extensive recognition of the economic and social rights of same-sex relationships. We didn't propose that these rights be infringed upon. We proposed an arrangement by consent, which abrogates the religious monopoly on marriage and divorce, which is a huge achievement. It's true that this agreement refers only to men and women. But on this matter we reflected the situation that exists in Israel and the world. We didn't take anything away from same-sex couples that they already have. Some people were angry and are still very angry at me over this proposal. I tried to explain, but I understand that someone who thinks he has a natural right won't accept my explanations."

The anger derived to a great extent from the fact that it was you. It was totally personal.

"Fine. I'm ready to accept that, too."

She reached agreements with Rabbi Meidan, but the ultra-Orthodox public is another matter. "I wouldn't give any sector a monopoly on any social service, like kashrut and burial and things of that kind. I think its unhealthy and invites corruption," she says, adding, "coalition legislation of the type involving child allowances and exemptions from the core curriculum are among the worst legislative acts in the Knesset."

Gavison warns against a return to a system of "child allowances like there was in the past, when large families were encouraged by allowances that increased along with the number of children." One conclusion of Metzilah's demography paper is that if Israel wants to continue being a developed nation it must improve the ultra-Orthodox and Arab populations' ability to break the cycle of poverty and join the labor market.

"Child allowances are not the right way to achieve these goals," she explains. "It's impossible to overstate the importance of this issue for the welfare of all of Israel's sectors."

Would you be prepared to clash with the ultra-Orthodox over the core curriculum?

"I very much hope that it will be possible to reach an agreement among the large parties that will say that there are things in this country that are nonnegotiable. One of them is the core curriculum. Absolutely. I'm surprised that you're surprised."

It will cause a severe social rift.

"A more severe rift than the rift between left and right that we don't make any fuss over?"

They'll view it as religious persecution.

"Yes, I've seen the kind of statements they make. I don't want to force them, but I don't want to continue to finance them to such an extent. You want a separate kind of private education? Fine, just not at our expense. Not because I'm stingy, but because I want the state to develop a common citizenship for all its citizens and I want them to be a part of it. If they don't want it, I won't put anyone in jail, but I'm not obliged to finance an education system that isn't ready to include a core program. They can't hold the rope at both ends."

 

Part I: http://www.wzo.org.il/en/resources/view.asp?id=2517

Part II: http://www.wzo.org.il/en/resources/view.asp?id=2519