Solomonic Justice

By Joel D Joseph

Israel has been an experiment in democracy in the Middle East for 75 years. Israel's Supreme Court has been the most suc-cessful branch of govern-ment in Israel, taking the lead in protecting the rights of minorities, Aabs, Ethiopian Jews and others. The High Court has also opened the doors to most challenges to governme

• Language: עברית
• Publisher: inprintbooks
• Release date: Feb 3, 2023
• ISBN: 9781088081020

Book preview

Solomonic JusticeSolomonic Justice: How the Israeli Supreme Court Has Become a Beacon of Justice in the Middle East By Joel D. Joseph Inprint Books La Jolla, CaliforniaCopyright © Joel D. Joseph, 2023. All rights reserved. Published by Inprint Books, P.O. Box 12184, La Jolla, California 92039.Also by Joel D. Joseph Legal Agreements in Plain English (1982) How to Fight City Hall . . . The IRS, Banks, Corporations, Your Local Airport & Other Nuisances (1983) Father/Son Book (1985) The Glove Compartment Book (1985) Employees Rights in Plain English (1985) Black Mondays: Worst Decisions of the Supreme Court (First Edition: 1987, Second Edition: 1989, Third Edition: 2008, Fourth Edition: 2014, Fifth Edition, 2023, Foreword by Justice Thurgood Marshall) Made in the USA: The Complete Guide to America ’s Finest Products (1990-1996) Fifty Ways to Create Jobs in the United States (2010) All American Holiday Gift Guide (2011) All American Back to School Guide (2011) Inequality in America: 10 Causes and 10 Cures (2014) Myth of German Engineering: Cars and Products that are Unsafe, Unreliable and Expensive to Maintain (2021) Injustice Department: An Elected Attorney General and an Independent Department of Justice (2022)Table of Contents Part I: Introduction ................................................. 11 Chapter One: Overview ........................................... 12 Chapter Two: The First Knesset: Constitution or Basic Law? ................................................ 45 Chapter Three: Access to Justice ............................ 46 Part II: Death Penalty .............................................. 70 Chapter Four: The Case of Adolf Eichmann .......... 71 Chapter Five: The Appeal of John Demjanjuk ....... 79 Part III: Human Rights .......................................... 96 Chapter Six: The Basic Law of Human Dignity and Freedom .................................. 97 Chapter Seven: Free Speech and Boycotts ............ 118 Chapter Eight: Torture .......................................... 136 Chapter Nine: Religious Freedom and Separation of Church and State .................................. 145 Chapter Ten: West Bank Rights and Barrier ......... 165 Chapter Eleven: Freedom of Travel ....................... 192 Chapter Twelve: Targeted Killings ....................... 203 Chapter Thirteen: Equal Protection of the Law ... 226 Chapter Fourteen: Property Rights ....................... 241 Part IV: Conclusion ............................................... 252 Chapter Fifteen: Comparison with United States 253 Chapter Sixteen: Mistakes ..................................... 259 Chapter Seventeen: Efforts to Override the Israeli Supreme Court ....................... 268Acknowledgements I would like to acknowledge that I have had the use of Versa, a Project of Cardozo Law School. This Project translated hundreds of Israeli Supreme Court opinions into English. Without the Versa Project this book would have been impossible. In addition, I have had access to Israeli Supreme Court opinions, in English and Hebrew. The Israeli Supreme Court translates many of its decisions into English. I would like to thank Itzhak Bam, attorney for Elitzur Segal and Joseph Ungerfeld, for providing me with documents, biographical material and photo- graphs. Most importantly, I have had the guidance and advice of retired Israeli Supreme Court Justice Eliezer Rivlin. Justice Rivlin was appointed to the Supreme Court in 1999. He became deputy-president in 2006 and retired from the court in 2012 at age 70, the mandatory retirement age in Israel for jurists. In 2013 Justice Rivlin was appointed as Ombudsman of the Judiciary. Rivlin also served for more than 20 years as a military judge on the Special Court Marshall and at the Military Court of Appeal. Justice Rivlin is also a law school professor at Hebrew University in Jerusalem. His help on this book was essential and fundamental to the completion of this book. Without Justice Rivlin ’s assistance, I would not have been able to be fully informed about the breadth and importance of many Supreme Court decisions.I would also like to thank Professor Ronit Levin- Shnor, senior lecturer in law at the Harry Radziner School of Law, Reichman University, Herzliya, Israel. Professor Levin-Shnor was a great help in under- standing recent Israeli Supreme Court cases.image-7.pngimage-8.pngSolomonic Justice

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Part IIntroductionimage-13.pngimage-14.pngSolomonic JusticeChapter OneOverviewastounded. ”“If you see oppression of the poor, and justice and righteousness trampled in a country, do not be “Your own soul is nourished when you are kind; it is destroyed when you are cruel.” “Whomever stubbornly refuses to accept criticism will suddenly be broken beyond repair.” —King Solomon “Justice cannot be for one side alone, but must be for both.” —Eleanor Roosevelt Israel and I were both born on May 14, 1948. As a Jewish-American, I have always felt a strong kinship with the Jewish state. Many of my relatives fled Eastern Europe because of pogroms, some of them perished in Hitler’s death camps and some sought refuge in Israel and the United States. Just before my bar mitzvah, I saw the movie Inherit the Wind, about the Scopes Monkey Trial. Tennessee high school teacher B.T. Cates is arrested for teaching Darwin ’s theory of evolution. Famous lawyer Henry Drummond defends him; fundamentalist politician Matthew Brady prosecutes. The movie is a rendition of the 1925 trial with debates between 12Solomonic Justice Clarence Darrow and William Jennings Bryan taken largely from the transcripts of the case. Spencer Tracy starred as lawyer Henry Drummond and inspired me to study law. At Georgetown, I focused on constitutional law, voraciously reading hundreds of Supreme Court cases. I have often represented those who promote free speech or are a member of a minority group that is being dis- criminated against. I have represented Jews who were discriminated against, atheists, as well as Muslims, women who were denied fair pay and others whose rights were trampled upon. My work has been focused on the U.S. court system. I have written extensively about the United States Supreme Court, in books and articles. I wrote Black Mondays: Worst Decisions of the Supreme Court, with the first edition published in 1987. Justice Thurgood Marshall wrote the foreword. I am now working on the fifth edition of this book. The U.S. Supreme Court has been a supreme disappointment. Even one of my favorite justices, William O. Douglas, failed me when he ruled that it was constitutional to imprison Japanese-American citizens in war camps. Over the past decade I have been reading as many Israeli Supreme Court decisions as possible. I have come to the conclusion that the Israeli Supreme Court is one of the finest, most fair, just and approachable courts in the world. Unlike the U.S. Supreme Court, the Israeli High Court does not duck many issues. Even though Israel is a very small nation, the Israeli Supreme Court hears many more cases than the U.S. Supreme Court. The U.S. Supreme Court has cut its caseload in half even as petitions to the court have increased. 13

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Solomonic Justice U.S. courts have put up many barriers denying access to justice for many reasons. Two of the primary methods used to deny plaintiffs their day in court are standing and justiciability. The U.S. has a high bar for standing, requiring detailed allegations that the plaintiff was injured in fact. In Israel, the Supreme Court has allowed virtually any public interest group to challenge the legality of government actions. American courts have also created a doctrine called justiciability. In one of my cases, challenging the con- stitutionality of the North American Free Trade Agreement (NAFTA), the courts found that it was not justiciable for the court to hear a challenge to the treaty. The courts have allowed an unconstitutional treaty to go without judicial review claiming that it is a political decision. We argued that NAFTA was a treaty under the constitution and that its passage required two-thirds approval in the United States Senate, which it did not have. Congress passed NAFTA as ordinary legislation. The Israeli Supreme Court would have heard a similar case because it has not adopted the justiciability doctrine. ____________ The Israeli Supreme Court, established soon after Israel declared its independence in 1948, has been a beacon of justice the Middle East, and for the entire world. Despite a nearly constant state of war, the high court has provided due process to Palestinians and other minorities under its jurisdiction. The court has also allowed cases challenging military orders that would not have been heard in courts in the United States or many other countries. According to George Barton’s book, “Temple of Solomon,” King Solomon was a fabulously wealthy and wise king of the United Kingdom of Israel who 14

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image-24.pngSolomonic Justice succeeded his father, King David. Solomon reigned as king for nearly forty years from about 970 to 931 BCE. According to the Talmud, Solomon is one of the 48 prophets. In the Quran, he is considered a ma- jor prophet, and Muslims generally refer to him by the Arabic variant Sulayman or Soleiman, son of Dawud or Daud. Solomon was traditionally con-sidered the author of several biblical books, including not only the collections of Proverbs, but also of Ecclesiastes and the Song of Solomon and the later book the Wisdom of Solomon. The Old Testament recounts the story for which King Solomon is known. 1 Kings 3:16-28. Two pros- titutes came to the king and stood before him. One of them said, “Pardon me, my lord. This woman and I live in the same house, and I had a baby while she was there with me. The third day after my child was born, this woman also had a baby. We were alone; there was no one in the house but the two of us. “During the night this woman’s son died because she lay on him. So she got up in the middle of the night and took my son from my side while I your servant was asleep. She put him by her breast and put her dead son by my breast. The next morning, I got up to nurse my son—and he was dead! But when I looked at him closely in the morning light, I saw that it wasn’t the son I had borne. ” The other woman said, “No! The living one is my son; the dead one is yours.” But the first one insisted, “No! The dead one is yours; the living one is mine. ” And so they argued before the king. The King Solomon said, “This one says, ‘My son is alive and your son is dead,’ while that one says, ‘No! Your son is dead and mine is alive.’” Then the king said, “Bring me a sword. ” So they brought a sword for 15