Thread by @amramleifer

(1/2) Yesterday's hearings at the Israeli Supreme Court are a great illustration of the most important Conservative truth: all men are, first and foremost, organisms.

Human nature is intangible and identical among all groups. It is made of the same aspirations for physical satisfaction, power over others, and status within the group. There is undoubtedly a place for altruism - but it is always threatened by the organism's inner drives and must be constantly protected by education, social pressure, and appropriate institutions, without any guarantee of success.

Most importantly of all, there exist no privileged group of people endowed with the supernatural capacity to overcome their organic urges and act entirely according to higher principles. Not rabbis or priests, not scientists - and not judges.

The case in point is the contention, made repeatedly yesterday by the best legal minds in the country, that at the top of Israel's legal order is the 1948 Declaration of Independence; which allows the Court to abrogate Basic Laws which it would judge contrary to its principles - even though the Court itself declared in 1995 that Basic Laws have Constitutional value and allow it to strike down regular laws.

From the point of view of intellectual consistency, this is pure rubbish. No legal order, anywhere on the planet, has an enforceable supra-Constitutional level of legal norms; the closest you can find are cases where the Constitution itself makes a distinction between those of its norms that can be changed and those that can't. Not a single Basic Law says anything of the kind about the 1948 Declaration.

Even more importantly, however, the Declaration of Independence is transparently not a constitutional document and was never considered one by any lawyer until five minutes ago. Go read it for G-d's sake.

Three quarters of it are either pure narrative without any normative implications or political declarations (we want peace with other nations, etc.) too vague to have any possible legal consequences.

As for the smaller part of the text that either did create a new legal reality or contains principles which can - and indeed should - inspire lawmakers, it includes:
- the existence and name of the State of Israel and the explicit affirmation that it is a Jewish state (how that will be handled by those who want a "State of all citizens" will be interesting to watch). And no, the fact that the state will be a democracy is nowhere to be found;
- a reminder of its founding values, including "the spirit of the prophets of Israel" (how that will be handled by those who oppose Shabbat laws will be hilarious to observe);
- a repeated affirmation that there will be no discrimination between citizens on the basis of religion or race. This was given legal value in the 1992 Basic Law on Human Honor and Freedom.

By the way, the Declaration also announces that a Constitution will be drafted before October 1st, 1948. That both proves that it's not a Constitution itself and demonstrates, since this never happened, that it has no enforceable legal value.

(2/2) However, all this does not mean that the argument that judges can strike down Basic Laws on the basis of the Declaration has no value. It has none in terms of legal consistency, but it is perfectly understandable when one remembers that judges, just like the members of the Knesset whose majority currently follows an ideology opposite to theirs, are organisms. And therefore, they want power.

Declaring Basic Laws to be equivalent to a Constitution was already a power play: it allowed judges to be stronger than the Knesset, although no law (Basic or otherwise) had ever given them that power

Then the Knesset remembered that it was the one making Basic Laws and, as the collection of organisms that it is, tried to use that power to gain the upper hand again. So the Supreme Court had to find something else to keep its supremacy and suddenly invented, after decades of consensus on the opposite opinion, the supra-Constitutional value of the 1948 Declaration.

This move is actually rather clever, precisely because the Declaration doesn't really create any legal norms: it ensures that the supreme law of the land will not be the Declaration itself, but whatever the Supreme Court itself decides is really written in it. It gives judges a supreme power that no one can ever contest - until, of course, the struggle for power between organisms is transferred to another field, political or otherwise.

None of this is fundamentally different from other struggles for power that happen all the time in the entire organic world, from highly evolved animals down to amoebas.