Of Kollel Avreikhim and Stipends: The Undemocratic Nature of Israeli Politics

If we need more proof that Israel is not a democracy, this following ruling by the Israeli Supreme Court will be suitable. Regardless of how much I personally agree with its ruling ideologically, it nevertheless makes a mockery of constitutional political theory.

In Supreme Court: No More Gov’t Stipends for Kollel Students (14 June 2010, Arutz Sheva / Israel National News, by Hillel Fendel), we learn that the Supreme Court of Israel overturned stipends to kollel (post-marriage yeshiva) students.

Now, I will note that personally, I agree with this wholeheartedly; I do believe that kollel students should not be receiving stipends. But as much as I personally agree with this ruling, I find it outrageous and criminal in the way in which it was performed and achieved. Let me explain.

According to the law as it then stood (before the court's decision), the unemployed received a minimum-income stipend of 40% the average national wage, kollel students received a minimum-income stipend of 20%, and university students received none at all. The court's logic was that if university students do not qualify for a stipend, then kollel students should not either, and only the genuinely unemployed should receive a stipend. As we read in the above article,

Beinisch wrote that the law specifically precludes minimum-income stipends to students in universities, colleges and yeshivot, and that therefore kollel students must also be included in this category. She wrote that support for public institutions of this nature must be done in a manner that would enable other similar institutions to receive equal stipends.

But on what basis can the court make this decision? Apparently, three different laws existed (or at least, three different provisions were present in some other number of actual laws), one specifying the stipend for the unemployed (viz. 40% of the national average wage), one specifying the stipend for kollel students (viz. 20%), and one specifying the lack of any stipend for university students. How do these three laws or provisions of law contradict? As it stands, these laws (or provisions) are all perfectly compatible with each other. None of them contradicts any other law. So if the Supreme Court's job is to simply apply the law and issue rulings according to the law as written (this surely being precisely the scope of the authority of the Israeli Supreme Court), then there is no problem whatsoever, and the court should have abstained from issuing any ruling at all.

The other task of any court in a democracy, viz. judicial review, i.e. the striking-down of laws that contradict the constitution, is not an option in Israel, because Israel currently lacks any constitution. (Israel does in fact have its so-called "Basic Laws", but these are merely ordinary and unexceptional laws passed by the Knesset which the Supreme Court had the arrogance and audacity to declare permanent and "basic", meaning that the Knesset could never repeal them, nor pass any new laws contradicting these laws. In other words, the Supreme Court unilaterally declared these "Basic Laws" to be Israel's constitution, even though the Supreme Court had no such authority or jurisdiction, and despite the fact that no constitutional convention had been formed and neither the Knesset nor the electorate had approved of these laws being Israel's constitution. I would say that the Supreme Court's action in this regard was itself unconstitutional, and that therefore, any pronouncement it made to declare the "Basic Laws" to be Israel's constitution, was ipso facto null and void. Likewise, any laws which the court strikes down, due to their contradicting the "Basic Law", this striking-down is itself unconstitutional.)

So these laws regarding respective stipends for the unemployed, university students, and kollel students were neither mutually contradictory, nor did they violate any constitution. So on what basis did Israel's Supreme Court strike down the law regarding kollel students? The Supreme Court claimed it was because this law of kollel students was different than the law of university students, but of course, this is irrelevant, for there is no reason there cannot be such a difference between the two types of students. Instead, it is clear that the Israeli Supreme Court has unilaterally and brazenly arrogated to itself the power to strike down any laws it personally dislikes, just because it ideologically dislikes them. In fact, the Israeli Supreme Court has its own name for this ability, calling it the "reasonability" test, meaning the court can nullify any law it personally feels is unreasonable according to its own subjective ideological preferences. Cf. "Opinion: Road to Nowhere" by Nitsana Darshan-Leitner (Jerusalem Post, 4 January 2010). There, regarding the Israeli Supreme Court's recent order to open highway 443 to Arabs, after it had long been closed to Arabs due to terrorist threats posed by them), we read,

The court claims that these rulings are based on what is known as the "reasonability" test, in which the justices assert the right to overrule any government action they deems unreasonable. When the court started using this test in the 1990s, critics warned that it would inevitably lead to judges imposing their ideology on the country, and replacing their judgment for that of elected officials - a slap in the face to democratic rule, according to which it is the voters, not the unelected judges, who ultimately decide whether their leaders are doing a reasonable job. The 443 ruling proves, again, that the critics were right.

And cf. Judge Richard Posner's review of Judge Aharon Barak's The Judge in a Democracy, entitled Enlightened Despot (23 April 2007, The New Republic; I am indebted to Tamar har-Oz for referring me to this source). Judge Posner there shows at length that whereas in a constitutional democracy (such as the United States of America), where separation of powers implies checks and balances, and where each branch of the government has power over the other, like a game of rock, paper, scissors, and where each branch keeps the others in check; by contrast, in Israel, the judiciary has no one checking it; it can do as it pleases, with no limits. There is no constitution which the judge is expected to use to judge laws. Instead, the judge applies the "reasonability" test, which means the judge can strike down any law which he personally feels is unreasonable, according to his own personal feelings and ideology. Thus, in retorting to Barak's own title of his book, viz. The Judge in a Democracy, Judge Posner entitles his own review, "Enlightened Despot".

So to return to our present case of stipends for kollel students, the truth is according to Haredi MK Rabbi Meir Porush (United Torah Judaism), who said (according to Arutz Sheva),

The Supreme Court simply makes a mockery of the Knesset. We sit here and work hard to find compromises and pass laws, and the Supreme Court just comes and overturns everything. In this case, the Knesset Labor Committee stipulated, 28 years ago, that while the unemployed would receive 40 percent of the average national salary, a kollel student would receive only 20 percent, and even that only under certain conditions – no car, three children, wife doesn’t work, etc. Then the Court comes and decides that it doesn’t like that. I’m just waiting for the day when there will be a body that is above the Supreme Court.

It would have been nice if Porush had worded his critique in constitutional terms, in order to underscore the undemocratic nature of the Israeli government, but nevertheless, his basic point is completely correct.

So while I personally agree wholeheartedly with the court that kollel students should not receive stipends, and while my general ideology is the very opposite of Porush's (I would be a left-wing Modern Orthodox Jew, highly indebted to both the German Neo-Orthodox and the Judeo-Spanish Sephardim), in this case, the Israeli Supreme Court committed a mitzvah ha-ba'ah b`averah (a merit committed via a sin, which renders the merit valueless and null-and-void). So by this action, the Israeli Supreme Court has accrued not an additional merit, but rather, an additional stain to its name, another brazen and atrocious violation of the basic norms of democracy.

As an aside, I will briefly add a short remark on Israel's lack of a constitution, surely a crucial desideratum. The reason Israel lacks a constitution is essentially because no one in Israel can agree on just what that constitution ought to say. Based on my own personal studying of Calvinist political theory and liberal constitutionalism - this running the gamut from John Calvin in Geneva to John Milton and Locke in Britain to nearly the entire party of colonial American thinkers - I would like to suggest a libertarian constitution for Israel. I will admit, however, that I will perforce gloss over the very many differences between various thinkers in the Reformed Christian or Calvinist school of thought, and I will even more egregiously have to gloss over how this school of thought evolved into classical liberalism of the sort espoused by John Locke and the like. Unfortunately, space considerations demand this, but I will do my best to be basically accurate, if outrageously abbreviated. For our present purposes, the beauty of libertarianism is that it allows the government to do absolutely nothing at all in a myriad of different areas. If you cannot agree on the correct religion, then separate church and state! If you cannot agree on the best economic theory, then let the government do nothing, and leave everything to capitalistic market forces. In any area where there is not a solid and nearly unanimous consensus, simply let the government do nothing at all. In Calvinistic libertarian thought, the government was merely a constituent of society, not its constitutive element. (See "Covenant Origins of the American Polity" by Professor Steven Alan Samson, Contra Mundum 10 (1994): 26-38, here.) To quote Professor Samson (ibid.),

Furthermore, decentralized political institutions required the existence of healthy social institutions, which included voluntary associations. The mainstays of society in Plymouth Colony were, first, the family, then the church and the state in supporting roles. As John Demos points out, the family combined the attributes of a business, school,vocational institute, church, house of correction, and welfare institution. And so it wasto remain for some time after the War for Independence, sometimes supporting a larger charitable outreach.

In other words, the government was merely one party of many in society, and the government was not identical with society, as Thomas Paine reminds us in his opening to his Common Sense. Instead, the government had a sharply-defined and demarcated role in society, and anything outside that constitutionally-defined limit was simply untouchable by the government. Furthermore, since the very essence of the social-contract theory was that the government is the shaliah (proxy or agent) of the people (and the late Chief Rabbi of Israel, Rabbi Shlomo Goren agreed here), therefore, the government can do nothing without unanimous consent of its citizens (see Samuel Adams's The Rights of the Colonists, written representing the general consensus of a Bostonian committee of correspondence), since the government is formed by the mutual consensus and compact of its citizens, taking them from the state-of-nature into a contractual assocation they call the government. (See again the opening to Paine's Common Sense.) Since the government is formed by the mutual and voluntary consent of all its citizens, the government cannot take any action where there is not a fundamental consensus of all its citizens. The only exception is that the government may take action on matters automatically permitted it by natural law, such as such as punishing murderers and thieves. The reason is that any lay citizen may himself protect himself and his neighbor from murderers and thieves and other threats, and so the government too may do the same, even without permission from its citizens. Similarly, any law condoning slavery would be automatically null-and-void, it being a violation of natural law for any man to own another man without his consent. (Cf. Paine's "African Slavery In America". In fact, Samuel Adams's aforementioned work seems to suggest that slavery is illegal even when the slave fully consents to his own servitude! Cf. the Rabbinic explanation of Exodus 21:5-6 and Deuteronomy 15:16-17, regarding the slave who refuses to go free.) But any positive shaping of society, i.e. social-engineering, can be undertaken only with unanimous consent of the citizens. Anything else would be done by private organizations. For example, Orthodox Jews can compact and contract among themselves to form synagogues and appoint rabbis and oversee kashrut. Those desiring to assist the poor can contract among themselves to send charitable donations. Anything the government does not do will be left to free enterprise. If the Haredim want certain handouts which other parties do not want to give, then all the coalition politics in the world will make such handouts impossible, for the government will simply lack the constitutional authority to make any such handouts to anyone, no matter how many vote for them. I ask earnestly and sincerely: who in Israel could possible disagree with this? For example, the seculars will be free from religion while the religious will have all their religious needs fully attended to! Who can disagree with the government, when the government does almost nothing? Furthermore, according to Yoram Hazony and Fania Oz-Salzberger and others, the roots of classical liberal thought are in fact in none other than the Tanakh. (See

• Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition", Azure No. 4 Summer 5758 / 1998, here
• Yoram Hazony, "Judaism and the Modern State", Azure Summer 5765 / 2005, here
• Yoram Hazony, "The Biblical Century", Jerusalem Letters, 10 May 2010, hhere
• Fania Oz-Salzberger, "The Jewish Roots of Western Freedom", Azure, Summer 5762 / 2002, here

I have already noted that Rabbi Shlomo Goren consented to the liberal notion that the government is merely the shaliah (proxy or agent) of the people. It would appear that a libertarian constitution would not only solve the infighting among different factions in the Jewish people in Israel, but such a constitution itself would be ipso facto profoundly Jewish in character, simply by virtue of its libertarian character.