NO TO 'MAJORITY' TYRANNY by Rabbi Dov Berkovits

I have been looking for this article for months; it is one of the best articles on the subject.

ESSAY: NO TO 'MAJORITY' TYRANNY

Posted by Moshe Dann on Think-Israel, September 3, 2007.
This was written by Dov Berkovits and it appeared in the Jerusalem Post, but the Jerusalem Post hid it, making it very difficult to find and then quickly took it off its site.


The writer is head of 'Bet Av -- Renewal and Creativity in Torah' and former director of the Pardes Institute. He's long been involved in programs for religious and secular Israelis. Berkovits's latest book, She-asani Gever -- Talmudic Discussions in the Eye of a Storm, is scheduled for publication by Yediot Aharonot in the coming months.

A recent exchange of letters to the editor in The Jerusalem Post between Moshe Dann (August 13) and Max Singer (August 17) dealt with the issue of IDF soldiers disobeying orders calling on them to participate in removing Jews from their homes in Judea, Samaria and Gaza.

Dann's basic claims were that the purpose of the IDF is to protect the existence of the State of Israel, not to expel Jews from their homes in the Land of Israel, and that the IDF is a citizen's army and its use by a majority against a minority would lead to a demoralization of the army and of society at large.

Singer, in rejecting this position, raised serious constitutional issues. He contended that a minority, however idealistic, cannot separate itself from the majority, and that the stability -- and the very existence -- of the Jewish state rested on the axiom that "to keep our country we have to participate in its army and obey its orders."

He argued emphatically that "God set rules for us as individuals, but he made us free to make decisions, including the decision not to obey the rules -- subject to His punishment. God may have made rules forbidding a Jewish state to expel Jews from their homes in the land of Israel. (I think any such rule would be subject to military and diplomatic necessity.) But we cannot avoid having a government which may break the rules. When someone who wants to live in a Jewish country thinks the government is breaking God's rules, he or she has to face the unpleasant fact of being implicated in breaking God's rules.

The choice is between deciding not to have a Jewish country because its government may or does break God's rules -- although God seems to have told us to have one -- or living with the country's sin, if that is really what it is, until politics can stop the sinning."

SINGER'S ARGUMENT, in the best tradition of Western political thought, suffers from a fundamental -- if widely held -- error of perception that has dangerous implications for our future.

* First, the democratic tradition has always had a place for the human conscience; it is the last refuge of safety against the always present potential of the tyranny of the majority in democracies.

Israel does not have a democratic tradition of hundreds of years, like other Western democracies which have understood the value of citizen dissent. In that context the need for soldiers who believe that eviction of law-abiding Jewish families from their homes is illegal and immoral is as important as the reality of soldiers who refused to participate in operations against Arab civilians in Hebron.

Some claim that belief in a divine command as a basis for such action is untenable, while conscientious objection is a sacred value. Though there are Orthodox Jews for whom a divine command, by definition, must be accepted without reason, most religious soldiers have been educated to have a deep religious consciousness that is profoundly linked to idealism -- national, ethical and interpersonal.

WE SHOULD be deeply respecting of young men who have volunteered to serve in elite IDF units, unlike many of their generation, who do not follow orders blindly and are willing to pay the price for their actions.

* Second, the constitutional issue raises the question of the very essence of Israel as a Jewish, democratic state. The legal and political realities of the United States were fashioned on the basis of an enlightened Constitution. At the core of the Constitution is its Bill of Rights. Though the US Supreme Court has shifted in its interpretation of the Constitution over the years, this fundamental document has always been accepted as providing the framework for political struggle.

In Israel there is no constitution and no bill of rights. As a result Israel has no binding formulation of national legality and legitimacy that reflects a commonly held statement of the basic values embodied in the existence of the state. In this situation the government, the Knesset and the Supreme Court are permitted to violate fundamental historical realities regarding the very raison d'etre of the Jewish state as long as political machinations and basic cultural attitudes can combine to create "law" as temporary consensus.

I BELIEVE the founders of Israel formulated tenets that established the philosophical contours of our state, and set boundaries on the use of political power. One such foundational tenet was the purpose of the establishment of the IDF.

Israel was created because of the tragic defenselessness of the Jewish people in the Exile. The IDF was established to protect Jewish homes and synagogues from destruction.

Here lies the basic constitutional issue -- does a government in Israel have the right to order the IDF to destroy law-abiding and lawfully created Jewish communities in Israel and exile Jews from their synagogues for "military and diplomatic necessity"?

Perhaps it is necessary for the existence of the state to allow for such an eventuality, as Max Singer claims. However, such a decision is clearly a reformulation of part of the historical bedrock on which the Jewish state rose.

And if that is the case, where was the national dialogue on this fundamental issue? Who were the major intellectual or spiritual figures that determined the role of the IDF would now be similar to that of armies in liberal democracies and not that fashioned from the unique destiny of Jewish history? Ahmed Tibi and Omri Sharon?

PARADOXICALLY, most of the soldiers who find themselves deeply conflicted over orders related to the destruction of communities in Judea, Samaria and Gaza were inculcated to view the state as an instrument of God.

What is the ultimate value in forcing them to participate in an operation whose goal is the destruction of the communities they were brought up in? Is there no way for an enlightened leadership to find a way to allow them to remain loyal without callously destroying the most valuable of all our possessions -- the ideals and beliefs of our young generation?

* Third, and most important, the existence of Israel as a Jewish, democratic state rests foremost on the integrity and unity of the Jewish people. There is no guarantee our "third commonwealth" will not suffer the kinds of terrible inner divisions which could have frightful consequences.

We are on the edge of a chasm when, in the name of governmental legitimacy, a citizen's army -- the very army which has succeeded in being the sole remaining accepted symbol of unity -- is used against part of our people.

We were playing with fire when the government used the IDF to protect our police in the Amona operation. We were playing with fire when police used planned mayhem against young men and women. We were playing with fire when our government used its secret service to delegitimize (and jail) as criminals idealistic young people as a tactic in a political struggle.

WE NEED to restate what this fragile reality called the Jewish state is fashioned of. We all believe in the critical necessity of the democratic process. We all support the need to reevaluate the treatment of Israel's Arab population both as a democratic and as a Jewish value.

But one principle needs to be emphasized again and again: If the democratic process, as it is understood today, leads to a further destructive dissolution of the Jewish people in Israel, there is no justification for the existence of the state. In such an absurd reality, Jewish history will find another venue for the realization of its destiny.

TODAY, WE are building a future for our people in this land. Let us give ourselves as much time as necessary to learn who we are and what kind of country we want.

First and foremost, we need to understand how far we can push each other, to recognize the parameters within which political struggle can legitimately take place.

It is my unequivocal view that the use of the IDF to destroy Jewish homes, to uproot lawfully created Jewish communities and to exile scrolls of the Torah from synagogues is outside those limits.