In the Land of Humpty Dumpy

As Israel faces a quiet, calculated judicial coup, voices of opposition begin to grow louder

By Tsvi Sadan |
Photo: Yonatan Sindel/Flash90

“When I use a word,” Humpty Dumpty once said, in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” Alice replied, “whether you can make words mean many different things?” Humpty Dumpty answered, “The question is which is to be master—that’s all.” 

The quote, taken from Lewis Carroll’s Through the Looking-Glass, has found its way into a new book by Simcha Rothman, The Ruling Party of Bagatz – How Israel Became a Legalocracy. The provocative title reveals the book’s premise – how the state’s jurists have taken the place of the government.  

Rothman, a conservative legal activist, chose Adam Gold to write the introduction for his book, who summarized the jurists’ take-over scheme by quoting from Carroll. Choosing Gold to write the introduction of his book is an interesting choice. Adam Gold is a pseudonym for an unknown person. The mysterious Adam Gold became a social media star following his posts on Facebook, until the social media giant permanently banned him. His posts revealed a highly informed person whose knowledge about the state’s legal system is intimate, and whose legal knowledge extensive. Banned from Facebook, Adam Gold turned to Telegram, a popular social media platform in Israel, where he continues to expose our legal issues and personalities, that for decades were either hidden from the public eye or, as we say here, went under the radar.

Gold uses Carroll’s fascinating quote primarily in reference to Israel’s former Supreme Court’s Chief Justice Aharon Barak, who is held responsible for what a growing number of critics call a “judicial coup.” One of the astounding hallmarks of Barak was his concept called the “test of likelihood” or, reasonability, according to which it is the court’s role to decide whether or not a legislation measures up to this elusive test. What this test means is that only the judge can decide not only whether a given law is reasonable, it also has the authority to interpret it, even in a way that contradicts the letter of the law.

And since the progressive worldview of Barak goes unchallenged and has become the plumb line of the Supreme Court’s culture, it follows that any “reasonable law” is a law that stands the test of Barak’s worldview. It is no wonder that since 1993, the State of Israel has been forced to accept the judicial system’s set of values, morality and ethics which are determined by a small minority in Israel’s elite and their understanding of “reasonable.” This is what now enrages so many Israelis who resent the fact that democracy has turned into a code word for progressivism enforced upon them in the name of the law by unelected jurists.

Humpty Dumpty’s approach became the Supreme Court’s norm following a ruling regarding known as the Aprofim rule, given by Judge Barak in 1995. The rule had to do with a disputed contract concerning the State of Israel against a contracting company, called “Aprofim Holdings.” The ruling included the unbelievable precedent that not only the words in the contract matter, but “the objective purpose of the contract.”

“When interpreting a contract,” wrote the judge who apparently assumes he can search the heart and examine the mind, “one has to look for the authors’ true intent … without being confined to the phrases or pronouns they have used. If there is a conflict between the written contract and the intent of its implementors, the later has the upper hand.” In other words, a contract means what Humpty Dumpty wants it to mean. Anyone with knowledge of philosophy would know that Justice Barak is dialoguing with deconstructionism and post-modernism, concepts that have taken Humpty Dumpty’s idea – a word “means just what I choose it to mean—neither more nor less” – far too seriously. This hyper-subjective method of interpreting texts, Barak goes on to call “the objective purpose of the contract.”

The Humpy Dumpty approach is not confined only to contracts. It is being implemented as a guiding rule, according to which in today’s Israel, any given law “means just what [the judge] chooses it to mean.” Troubling as that may be, many hope that the growing public protest against this judicial coup will make our jurists realize who should be the real masters in a democratic state – and that is certainly not Humpty Dumpty.

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