In the judicial overhaul debate, everyone is in breach of contract – analysis

To justify demonstrations and days of disruption, road-blocking, and reserve pilots threatening not to serve, the leaders of the protest movement against the judicial overhaul often claim the government is “breaching its contract with the citizens.” 

According to this argument, the government has an unwritten social contract with the country’s citizens whereby it protects their fundamental rights — such as equality and freedom of speech, religion, assembly, and education — and the citizens obey the state’s laws and support and protect its institutions.

But what happens, this argument goes, when the government violates that contract by legislating laws that will infringe upon those individual rights? In that case, the citizens are not obliged to uphold their end of the bargain.

Taking this down from the theoretical realm to the practical Israeli day-to-day, this means that since the judicial overhaul plan — or even, according to its opponents, a relatively small part of it such as a change in the reasonableness clause — will impinge upon the court’s ability to safeguard individual rights, then this is a violation of this unwritten contract and all bets are off.

Not everyone agrees that such a move ipso facto will result in an infringement on individual rights, but let that be for the moment: that is the argument.

Assume the premise of this argument is valid and the government is indeed guilty of violating an unwritten social contract; it is, however, not the only actor in this depressing saga breaking unwritten contracts and codes of behavior.

An argument can be made that there is another implicit contract in a democracy that exists between all those who make up that democracy. According to this contract, elections are held, and the winner of that election can form the government and set laws and policies. Sometimes one side wins, sometimes the other side wins. But when one side wins, it is given the keys to govern.

Good governance should dictate that the government in power understands there are limits to its power, and that it can’t do whatever it wants and trample the rights of the minority. Certain checks are also in place to ensure this doesn’t happen.

One check is the government’s knowledge that there will be another election in four years or less, and if it fails to deliver or grossly oversteps its bounds, it is likely to be turned out of office.

In the current tumult over the judicial overhaul, the plan’s supporters say that the opposition and protest leaders are not holding up their end of that bargain. They lost the election, this argument runs, but instead of accepting the results and regrouping to win another day, they are saying that what the freely elected government is doing is illegitimate and that since the government is not changing course and seeing things their way, they feel free to take actions to damage the state.

The damage they can do is manifold: they can cause economic damage by disrupting everyday life and commerce and by blocking roads and airports, they can cause diplomatic damage by appealing for outside intervention, and they can harm the state’s security by encouraging pilots and soldiers to refuse to serve.

This refusal, as well, is a breach of an implicit contract that — for instance — the pilots have with the country.

Israel’s pilots have a unique responsibility and status in this land. Perhaps more than anyone else, they are on the front lines putting their lives in danger and disrupting their family lives for the sake of their collective. Few sacrifice more for the collective good than the pilots. That this country lives in the relative safety and security that it does is due in no small part to its air force and pilots.

Much to the country’s credit, its youth continue to want to be pilots — despite the risks, challenges, and sacrifice to personal life. Hundreds apply each year for acceptance into the vaunted pilot’s course, and only a few are accepted. Those who apply know what is in store: years of personal risk, danger, and the loss of a normal, carefree family life. They also know the responsibilities involved. 

Those accepted into the grueling pilot course know what is in store: the risks, the dangers, and the responsibilities. The pilots know that when they sign up, they will be expected to take an active part in the reserves for years after their mandatory tour of duty ends.  It’s part of the package.

In return, the state spends hundreds of thousands of shekels training them and providing them with state-of-the-art equipment, and it pays them respectable salaries (though by no means enough considering their sacrifice). Society bestows upon them unparalleled prestige and status — all well deserved.

By signing on, the pilots are assuming the risks and sacrifices — they should be thanked effusively for that — and taking enormous responsibilities for everyone’s security upon themselves.

The country relies on them. Everyone depends on them. Every parent and grandparent relies and depends on the pilots to carry out missions that keep their children and grandchildren safe.

Therefore, if the pilots do not show up for a mission — not if they sign a letter threatening that they will not show up for an assignment, though that in itself has security ramifications because it sends a signal to the enemy, but if they do not show up — they too are violating an unwritten contract they entered into when they decided to become pilots: to protect their fellow citizens.

And finally, the citizens of this country — flirting with a breakdown of solidarity and tilting toward rhetorical violence that could easily spiral into physical violence — are breaching its contract with Jewish history.

And what is this contract? That the Jews learned the lessons of history; that upon returning to their land and sovereignty after 2,000 years of exile, the Jewish people will not repeat the same mistakes that led to the last exile 2,000 years ago, nor to the first one, nor countless hardships through its long history. This contract is that the new Jew, the one who returned to build a sovereign nation in its historical homeland, will rid itself of that self-destructive gene that has plagued it throughout history: ruinous factionalism.

Never shall Masada fall again!

In 1926, the Ukrainian-born Hebrew poet Yitzhak Lamdan, who arrived in Palestine six years earlier, wrote a poem exalting the pioneers called Masada. Using imagery of Zionist youth dancing the hora, he writes:

Lift your legs,

Firm your knees,

More and more!

In the dance’s circling chain

Never shall Masada fall again!

That last line became part of the Zionist ethos: Never shall Masada fall again! We have returned, never to be exiled again. Masada will not fall twice.

Years later, after the Holocaust, that gave birth to a similar slogan: “Never again.”

Never again will there be another Holocaust. Never again will Jews go to their slaughter. Never again will Jews lose their sovereignty. That is the unwritten contract between the new Jew in Israel and Jewish history. Masada will not fall again; never again.

The troubling wind blowing through the country threatens to undermine this contract with Jewish history. It challenges the idea that the Jews who returned to Zion will not allow the divisiveness that plagued previous generations to lead to Jewish tragedy again. 

“Never shall Masada fall again” does not solely mean that others will not destroy the Jewish people, but also that they will not destroy themselves. 

Continuing legislative actions that drive a wedge through the country constitute a breach of that “never again” contract. Taking active steps to weaken the state, not showing up for army service, using horrific rhetoric that fuels hatred, or engaging in actions that divide the nation—these all violate the contract.

It’s time for the country, with its diverse factions and tribes, to re-commit to the unsigned contracts that have guided it through its first 75 years. Otherwise, the alternative is unthinkable.

JPost