Jerusalem Day and justice under siege

Rabbi Goren sounding the shofar of the just-captured wall is connected in our memory with General Moshe Dayan’s terse message – Har HaBayit BiYadeinu – “the Temple Mount is in our hands”. The hierarchy and progression seemed Messianically clear: First we take The Wall, then we rise to The Temple Mount. That problematic itinerary is most troublesome in that it leaves out what the Temple Mount housed: the High Court of the Hewn Stone – Lishkat HaGazit.

The Kotel lacking halakhic significance, but imbued with unrivaled popularity, reflects the will and desire of the Jewish people. There, Jews assemble freely and happily to pray and celebrate; despite the conflict over whom can lead services. At the same time, the Temple is thought of vaguely as the sacred spot. But it has another dimension in its historic housing of the Sanhedrin. What this signifies is that Law must rule over both sanctity (the Temple) and popular will (the Kotel). The Mishneh Sanhedrin 2:1 tells us “the High Priest can participate in High Court deliberations, but is also judged by the High Court” for any and all violations of Law – ritual, moral and civil. The High Court watches over the Temple, the people, and ideally the king himself. The Talmud reports (Sanhedrin19) that the Mishneh should have added that “the Court judges the King.” But powerful King Alexander Yani (126 – 76 BCE) massacred the members of the Sanhedrin when they tried to curb his illicit use of power. Halakha retreated “allowing” the king his power and scrambled to create a separate domain for itself.

Jerusalem Day should commemorate the triumph of modern Mishpat – justice. Our Supreme Court has put “kings” – both a sitting President and a Prime Minister in jail, overturning their powers, connections, and ability to manipulate popular will. This is only the apex of the Court’s achievements. It is known for its brilliance and most importantly its incorruptibility. The Knesset has the trust of 35.2% of Jewish citizens and 36.3% of Arab citizens; the Supreme Court enjoys the trust of 62% of Jews and 59.6% Arabs.

Incorruptibility is not simple to accomplish. Rabbi Yehuda Leib Maimon, a Talmudist and signatory to the Declaration of Independence, favored a reestablishment of the actual Sanhedrin, and was challenged with “where will you find ‘sonei batzah’ – haters of bribery?”, a key requirement of Moshe’s original Sanhedrin (Ex. 18:21). He ironically replied with the well-known Yiddish quip – “mit gelt alts kaufen” – “for money you can buy anything!” thereby illustrating the great accomplishment of the formation of an honest High Court.

Nonetheless our Court and our national commitment to mishpat are under siege. One does not have to look far. Recently, Justices upholding the Knesset’s severe restriction on free speech, as one cannot advocate boycott upon areas of Israel (a boycott that I abhor). Clearly, opposition on the Court crumbled in the face of fierce popular opinion. They have also allowed for confiscation of Jerusalem land from absent Arab landholders without a same demand upon Jewish owners, a rejection of equality. They have not sufficiently supported the police in limiting Jewish entry to the Temple Mount, even though such entry is both a security risk and halakhically prohibited. In these cases they have caved before Jewish populism. But popular will is the very reason we are supposed to have mishpat – to curb its lust for self-aggrandizement and blind, short term accomplishment. Nevertheless, the current Prime Minister, the King of Israel – a functional halakhic definition long favored by national religious thinkers – wishes to “massacre” – like Yani – the Court and mishpat itself. Further, the cause of Justice faces a tenacious and pernicious foe in newly appointed Justice Minister Shaked who justified the bombing of women and children in Gaza, and has pledged to overturn Court rulings – even on the Basic Laws of Human Dignity. The move to subject court decisions to be overridden by the Knesset is worthy of a banana republic or the tyranny of cynically exploited popular will. Furthermore the pressure to appoint Justices with politicians dominating the selection committee will be an open door to the worst kind of deal making in an arena where no deal of any kind should be allowed.

The common prayer of grace over meals contains the blessing “Blessed are Thou O’ Lord who redeems Jerusalem BiRachamov – with mercy.” The luminary of modern Judaism, the Gaon of Vilna (1720-1797) removed the wording “with mercy”. He quoted Isaiah, “Zion will be redeemed through mishpat – justice” (I: 1:27). The cause of celebration of Jerusalem is intertwined with the “crown of glory and diadem of beauty” upon those possessing … ruakh mishpat la yoshev ‘al HaMishpat – “a spirit of Justice for those who sit in judgment” (I: 28:5-6).