Making sense of the complicated mess in Gaza

 

An irreverent discourse on religion

 

An irreverent discourse on religion  

#1: The first question is: Is there something beyond our comprehension that relates to the existence and functioning of the universe?

Answer: Yes, Why should we think that humans, limited as they are to comprehending only three dimensions, could not be ignorant of some kind of bigger picture? We don’t know what we cannot know, so we must acknowledge this possibility. We cannot judge it in the light of our logic or experience, because it goes beyond that.

So, I conclude, it is not implausible, but we just don’t know.

#2: The second question: Does this imply anything about the nature of that transcendental power, call it God, that we acknowledge is both possible and about which we can know nothing?

Answer: Absolutely not. It certainly does not imply anything about the nature of some posited (assumed) super powerful being. There is no connection between #1 and claims about the nature of God.

Technically, #1 is necessary, but, in no way, sufficient, for anything specific about God.

#3. What then is the status of religious teachings?

Answer: These are of the nature of social myths – social mythology is incredibly significant in how societies function and are able to cope with difficult things.

But these religious teachings are not matters about which we can have no judgement. They are framed in human terms, relate to human experience, appeal, when it suits their protagonists, to human logic and so on. They are about specifics, not about the vague proposition of a transcendental power as in #1. There is no bridge between #1 and these specifics.

#4: So what are some of the specifics? God is distinguish by three remarkable characteristics.

a.  God is all-good. (omnibenevolent)

b.     God is all-powerful (omnipotent)

c.      God is all-knowing (omniscient)

 Two things can be immediately said about these three attributes.

1.     Where do they come from? I honestly have no idea. They seem to be made up to suit the narrative. The most common answer is that these attributes and many other things, are revealed by God to us, in texts and in oral laws passed down. This proposition will be examined later.

2.     They are contradictory. Not all three of them can be true at the same time; at most two of them can be simultaneously true, using human logic. 

#5. The contradictions (inconsistencies)

b and c are possible. It is possible for God to be all knowing and all powerful. No contradiction. But while there is no contradiction, their joint occurrence is incompatible with the existence of free choice, which is an absolutely necessary condition of individual human responsibility. If we include in “all-knowing” knowledge of the future, which is definitely part of Jewish religious belief, then God knows what each of us will choose at every point in our lives. This means that, in a fundamental sense, our actions are already predetermined, even though we don’t know it. We have only the illusion, but not the reality, of free choice. For true choice, the future must be not only unknown, but undetermined. For choice to be truly free, it must be possible that God can be surprised by it, does not know which of any alternatives we will choose. Only then does it make sense to hold individuals responsible for their actions, for their bad choices. Otherwise, they simply choose what God made them choose by the way he made them. 

a and b cannot occur together unless we mean something very different by the word “good”, something absurd and perverse.  Experience tells us that some very bad things happen. If God is all powerful, he could prevent this. If he were all-good, he would prevent this. The occurrence of bad things, suggests that either a or b can be true, but not both. God may be all-powerful but not all-good in that he allows bad things to happen. Or, more attractively, God may be all-good, but helpless to prevent bad things from happening. 

Some people try to defend against these conclusions by changing the meaning of “good”. Things just appear bad to us limited humans, but, actually “everything happens for the good”. This saves the logic, but perverts its meaning. For many people, it is just not believable and is perverse. Why would a merciful God subject innocent people to suffering for some “greater good” about which they are ignorant? Equally perverse is the idea that this is one of the things that God knows but we cannot know. This is an unsatisfying, all-purpose answer that stifles all further inquiry. It can apply to any question. If God made us in his image and as reasoning beings, why would he present us with such a stark contradiction and not give us any explanation? 

a and c can occur together. It is possible for God to be all knowing and all-good, while being helpless to prevent bad things, as with a and b. 

So, obviously, a,b and c cannot logically occur together, cannot be simultaneously true. 

#6. The origins of religious beliefs. (I will confine myself to Judaism, but the analysis applies to any organized religion.) 

In addition to the three attributes of God discussed above, religious teachings contain a large number of commandments, prohibitions, and historical narratives. These commandments and prohibitions intrude into every aspect of individual life. The historical narratives serve, in large part, as sources and exemplars of the moral commandments and prohibitions.  What is the ultimate source and justification of these narratives, prohibitions and commandments? 

The answer is that all is revealed to us by God himself in holy texts or by oral law passed down over the generations, until they too were written in canonical texts. Note how far this is from #1. 

According to the biblical text, the most important revelation occurred at Mt. Sinai in the presence of hundreds of thousands of witnesses. Previous and later communication between God and other individuals occur in other places. What is the source of this claim? The text itself tells of its revelation by God. So, credibility for the text as divine is supposedly provided by the authority of the text itself, including the existence of the corroborating witnesses. In short, we have an argument supported by its assumptions. 

Apart from this, the divine nature of the various texts considered part of the definitive source of all Jewish law, halacha, is highly implausible given some of its characteristics.

1. 1.Numerous contradictions and inconsistencies in both narrative and reasoning regarding laws. In fact these inconsistencies provide much of the material for extended discussion in commentary by the sages (rabbis) leading to their reconciliation. From the start, since the text is considered to be divine, the inconsistencies must be apparent and not real. We, humans have been misled by our limited understanding and need wise rabbis to provide the reconciliations formed by their superior understanding of the definitive texts.
2. 2.   The historical accuracy of some of the narrative is questionable. Perhaps the most obvious is the assertion that the planet is less than 6,000 years old.
3. 3.   Textual analysis of the various texts suggests they were written over a long period of time by different people. The styles and language structures are different.
4. 4.  At numerous places in the biblical texts supernatural forces are reported, such as the splitting of the sea, the halting of the passage of the sun to allow Joshua to complete his invasion, Jacob wrestling with an angel, etc. Such supernatural occurrences are posited to have ceased at some point and are no longer part of our world. This strains belief. 

The most plausible assumption is that these texts are an impressive combination of moral allegories, historical narratives, and law (the commentaries) drawn from the history and the allegorical stories – one that provides a comprehensive guide to everyday life, but also to religious belief and mandatory ritual.

#7. Considering the details of halacha, the obligations upon each individual – from a moral and common-sense perspective. 

There are too many considerations for a comprehensive analysis. A shorter selection of examples must suffice. 

On the morality of certain precepts and practices, in light of modern western sensibilities.

The role of women. Clearly women are regarded as lesser citizens in the strict canon of the law. They cannot act as witnesses in religious matters. Husbands have the sole right to initiate a divorce, which can create agunot, women trapped against their will in marriages by their husbands. It is true that historically the treatment of women by Jewish law was ahead of its time, but not now. 

The role of non-Jews. Jews are considered to be a special species of humanity, and many practices incorporate this, perhaps the most prominent being the ban against intermarriage. It is based on Jewish birth (or conversion, which is interpreted as the revelation of a hidden “Jewish soul”). As such, there is an unfortunate (but maybe understandable) racial element to it. 

Intrusions into private life – some of it offends morally, some are just a matter of preference. But as commandments that could be enforced if Jewish authorities had the power they are troubling. Some examples, attitudes toward sexual relations – the control of the schedule couples are obliged to follow, the prohibition of masturbation, the uncompromising attitude toward homosexuality (the blind denial that it is a biological fact), essentially condemning gay people to lives of isolation and shame. The prohibition of women singing in public. There are noticeable differences among religious practitioners on some of these, some claiming they are implied by biblical and commentary sources, others considering them as binding customs, and others not accepting them. 

There is much more that can be said, but this is enough to illustrate why many thinking people would struggle to accept the full body of strictures as aspects of the divine revelation of a God that is all-good. 

Matters of common sense. Compulsory rituals from organized prayer to multiple individual blessings to be pronounced for just about everything. For some people, it defies comprehension why an infinitely powerful, knowledgeable, confident God, would require of the humans he created that they continually, repeatedly, affirm his greatness, kindness, and any other possible virtue one can think of; why he would demand magical restrictions on their eating habits, why he would command binding restrictions on their work habits to the point of prescribing stoning and other punishment for their violations. 

#8. The source of morality.

A particularly weak form of argument suggests that, in the absence of this corpus of laws and practices, there would be no moral structure to the social world. If morality is not revealed to us by some superior moral authority, we would be free to make it up. There would be no limits to what we could consider as moral and there could be moral chaos. 

This is an argument that presumes its conclusion. It starts, by implication, with the idea that a moral system is necessary, in other words is moral. One is tempted to ask, what moral system tells you that a moral system is necessary? But, that is only one of its problems. The other, more important, problem is that it is false. It suggests that humans can escape the subjective choice about what is and what is not moral, right and wrong. This choice cannot be escaped. Morality is inescapably, and always, a subjective matter. The “decision” to accept what is claimed to have been revealed is a subjective choice. The religious believer will be repeatedly challenged by any apparent contradiction between what his conscience tells him, and what his religious text tells him is right or wrong. He has to choose. Mostly he chooses to find some compromise that makes it seem as if there is no contradiction. Other times he may choose to accept the religious view and suspend the “ignorant” inclinations of his conscience. But he cannot avoid the choice. 

A modern view is to face up to the fact that all morality ultimately comes from one's conscience (certainly influenced by experience and culture), and act accordingly. 

#9. Other possible approaches to religious teaching -  my own view of the matter. 

Overall, organized religions like Judaism, are the result of millennia of social evolution as humans have striven to deal with their dangerous, uncertain and exciting lives. A child in need of protection and reassurance resides within all of us. So we have invented a perpetual parent, who knows better and helps us make sense of it all. And it works surprisingly well for the majority of humanity. It provides valuable insights through biblical allegories that contain eternal truths about human nature, it embodies great insight in its commentaries, it provides beautiful literature and poetry, grandiose visions, beautiful music. Humanity would be worse off without the sublime teachings of the Jewish tradition on justice, tolerance and love. 

But, equally, it contains unfortunate anachronisms that should be and often are abandoned. And some religions, or versions of religions, like Islamism, should be vigorously combatted. Until modern times, pretty much all major wars were fought in the name of religion. 

Bottom line: religion can be a great source of morality, inspiration, and stability. But it can also be a source of massive intolerance destruction and brutality. The key is this: 

Religion is likely to be a force for good as long as it does not have the power to compel, as long as it remains a lifestyle choice and not a state enforced legal system. Judaism lost it state power with the destruction of the second temple and became a religion without priestly or governmental power. Perhaps that is the secret of its relative tolerance.

From my FB page - Israel's impossible choice

 Today's musing minute.

We are witnessing the most earth-shattering events in Gaza.This is no less disturbing for being anticipated. It is the result of the terrible choices faced by Israel. Attacked by Nazis bent on destroying it in the most brutal manner conceivable, Israel has elected to destroy Hamas, even at great cost to the hostages and their families and to tens, maybe hundreds, of thousands of innocent civilians. The alternatives are

1. to accede to the Nazis' demands, free 7,000 terrorists from Israeli prisons in return for the 200 odd hostages and cease fire for good - until the reinforced Hamas strikes again, continuing their objective to kill or expel all the Jews.

2.The other alternative is to cease fire temporarily to let humanitarian aid in sufficient to prevent the impending humanitarian catastrophe. This is the alternative the western world is urging, and some of the Arab world too. It is not clear to what extent this will compromise Israel's main objective to destroy Hamas, or even render it impossible. Clearly Israel thinks it is off the table.

But there is a third alternative, arguably the most logical and moral alternative. In a more moral world, one more unified against Nazis of all kinds, the great powers, and the leaders of the Arab world who claim to be against terrorism, would demand the unconditional surrender of Hamas and the turning over of its leaders to be tried for war crimes, just as happened after WWII. Sad to say it took the bombing of Dresden to come to this (or so I am told). This is the most just way to save the Palestinian people. If Hamas leaders truly cared about them, they would sacrifice themselves to that cause and surrender. If the Arab world cared about the Palestinian people they would urge Hams to do so and to face justice for the crimes everyone knows they committed. This, it should be strongly emphasized, regardless of the rights and wrongs of the broader Israel-Palestinian conflict. Nazis are in power in Gaza. One cannot negotiate with Nazis. Israel has learned that lesson. Unconditional surrender is logical and just.

But, the truth is that the Arab world, as a whole, does not care, has never cared much about the Palestinian people. Over the last 75 years they (75,000 of them) could have been accepted into any of the many Arab countries as refugees that would have contributed greatly to those countries, just as the 850,000 Jews expelled from Arab countries, at that time, were accepted into Israel. Instead they have been kept as second class citizens in camps in Lebanon, Syria, Jordan and elsewhere to be used as political pawns for generation after generation. In the western democratic countries they have been accepted and have become peaceful productive citizens, like my next door neighbor, who is now aged 90 and has prospered, raising a large successful family.

This last alternative will sadly not materialize, but, I felt morally obligated to articulate it as something to be considered in the moral calculus that will follow the death and destruction. It is not a matter of excusing Israel's actions. It is a matter of facing the truth of Israel's dilemma, the circumstances of which are not of its making or under its control.

If the "world" really wanted to save the Palestinians of Gaza they would arrange for, they would demand, the expeditious surrender of Hamas rather than the unjust surrender of Israel to outrageous terms. Israel's choice is between sacrificing its population or the population of Gaza. Can you think of a more terrible choice?

I am not naïve, but I do wonder why this is not clear to more people.

Today's musing minute: mindless passion and partisan hatred

It seems to be getting harder to get away from the bad news that suggests an accelerating decline in the fabric of American civilization. Could be that I cannot see the wood for the trees. A better, more zoomed-out perspective may reveal a significant growing awareness of the bankruptcy of current political and social trends, and portend a swing back of the pendulum, similar to the 1960's. I certainly hope so.

But, meantime, I read in the WSJ opinion pages today four or five pieces on the growing power of labor unions, especially the (constitutionally dubious) government employee unions, and how they have destroyed the fiscal integrity of our states, any semblance of accountability of our public deeply-failing schools, and similar depressing accounts. I read of stubborn multi-billion climate agenda policies in the face of massive failures, subsidies piling on subsidies, diverting resources and destroying jobs for no-good reason, absolutely no connection to any climate mitigation effect.

And, wherever, I turn among friends and acquaintances, I encounter angst reflecting polarization in the political discourse. This polarization is characterized very little by reasoned disagreement, and very much by unreasoned emotional commitment. Explosive anger is easily triggered by any attempt I make to try to enter into an exchange of views based on reason and evidence. (Let me admit that I too am probably somewhat vulnerable to emotional commitment, though I try hard to transcend it.) The dominance of emotion over reason takes the form of affiliation and loyalty to identified groups and personalities, rather than to principles and policies. The former drowns out any examination of the latter. The very term "independent" in connection to political point of view attests to the dominance of a broad two-party system regardless of their programs.

Some examples:

My friends and acquaintances who cleave to the legend of Trump. They see him as representing the refreshing wrecking-ball that will wipe away the decadence of social degeneration, fiscal irresponsibility and foreign policy weakness and disgrace, characteristic of the Democratically sponsored Biden agenda. The disenchantment rises to the level of agitated hatred and conviction that only Trump in spite of any argument to the contrary can save us from this damnation. Without any examination of the merits they cling to the conviction that all of the charges against Trump are baseless, that the 2020 election was stolen, and that the storming of the Capital on January 6 was not that significant (after all, the Democrats completely whitewashed the terrible riots that occurred across the nation in the recent past – both sides do this. Apparently the one thing wipes out the significance of the other.) They deny or minimize any role that Trump played in the effort to prevent the certification of the election. They turn a blind eye or support the vilification of, and even possible palpable threat to, Mike Pence, for doing his constitutional duty. (In fact, both sides now boldly condemn those aspects of the constitution they don’t like, that they see as obstacles to their preferred outcomes.). In short, they completely dismiss the threat that Trump poses to liberal democracy by subverting the political process. It is a threat that I was made aware of prior to the 2020 election, and, I confess, I discounted it in favor of hoping Trump would be a much-preferred alternative to, what I saw as, a runaway radically subversive Obama-controlled Joe Biden. I underestimated both problems. Both likely candidates now strike me as horrible.

My friends and acquaintances who cleave to the Democratic party “liberal” legend. It’s a mirror image. The unreasoned passion of hatred for Trump drowns out any discussion. It is all-pervasive. It produces egregious double standards – a dismissal of the significance of ongoing deep malfeasance by the federal government justice agencies in obstructing the investigations into Hunter Biden and likely involvement of his father, and the ongoing cover up of same, involving many high-ups in the Biden administration and beyond; schadenfreude about the health struggles of Mitch McConnel, while papering over and minimizing the significance of the cognitive breakdown of the chief executive officer, who also happens to be the commander in chief and the face of America to the nations; complete indifference to unprecedentedly radical social and economic policies that reasoned reflection would reveal as alarmingly corrosive to the long term wellbeing of all Americans, most especially those at the bottom of the income distribution; the list goes on. Like their partisan opponents, their thinking is pathetically superficial, juvenile, ignorant, economically illiterate.

On both sides, it is a matter of (sometimes unconscious) emotional commitments seriously distorting the capacity for rational thinking. This is not unusual in humans. Is it worse now? And what does it portend?  

Hillel’s version of environmental economics

 

From an email to a friend:

Whichever way you cut it, the climate policy nexus is seriously broken, worldwide. By the time it gets abandoned, it will have cost hundreds of billions of dollars stretching into the future, including lots of death and suffering. Every new freeze or heat wave will be a challenge for the electric grid. 

Concerning “we are damaging the environment”. It helps to understand the essence of all so-called environmental problems. As briefly as I can.

All life, all human life, all human economic life (which is basically all human life in one way or another) involves using natural resources. There is no such thing as human endeavor without using natural resources. Humans are the only species that have mastered the craft of engineering (transforming) natural resources to any great extent. Beavers build dams, ants build colonies, is about the level reached by animals. So the “environment” is inevitably changed. The policy question appears to be whether the changes are good or bad, valuable or harmful. But actually that is not the fundamental question. The fundamental question is “who should decide whether any resource use is good or bad?” 

When the resources are privately owned, we pretty much agree that the question is answered in favor of the owners. They decide what to do with the resources they own. They are motivated and guided by the value put on the results, the products produced with the resources, by consumers who buy them. So, indirectly, consumers decide how resources should be used. So, if I paint my house red, you may hate it, but unless there is a homeowner association agreement against it, it is my legitimate choice. Similarly, a stretch of beach may be owned by a large estate who sells it to a hotel chain to build a vacation resort that the environmentalist don’t like. They have a right to their opinions, but its not their decision to make. The only other way to do it is by some external committee. 

There is, of course, as you will be bursting to point out, one big caveat. When private resource usage has “external” effects, imposing costs on third parties, that is a true environmental “problem”, like air pollution, like smoke or noise (an airport). This is like a trespass or an intrusion. It occurs always, without exception, because property rights cannot or will not be defined. The air cannot be privately owned – that is the best, and maybe the only, perfect example. So air pollution is the canonical environmental problem. Water pollution is a close second. Property rights in water are difficult and sometimes impossible to define and enforce. But, where the problem is localized and involves a small number of parties, it can and should be decided by the common law. I sue the airport. The judge must decide who is plausibly the rightful property owner of the noise-space. One important fact is who was their first? If the airport, then the homeowner likely bought the land at a discount. If the airport came after then the homeowners my be entitled by law to assume the absence of noise pollution and receive compensation. The “problem” is internalized. Mostly such problems are handled by negotiation and agreement. Like the waterboards of the early frontier in the USA. And, as a side implication, the way resources are used will mostly not depend upon who is awarded the right, though, of course, the relative earnings positions will be affected. 

When negotiation and small party legal adjudication is not possible, because there are masses affected, one has to resort to government regulation. This is extremely rare. One important case is the banning of leaded gasoline. One law, one time, unchanging, with no discretion or side payments, removed an agreed unnecessary pollutant that we were all omitting and all consuming. Rarely is such a case to be found. Another potential problem is the overuse of resources in the oceans, or pollution by dumping into the oceans, etc. This occurs because no one owns the oceans. Other examples involve “public property” like national parks, etc. The solution is clearly to privatize them – or contract them out to private parties. Wild life game parks in South Africa are great examples. They are the only effective way to preserve certain wildlife species if that is one of the objectives. Kruger is run as private concessions. 

So, in general, is it true that we are spoiling the environment. Actually, no. Not in any objective or general way. Spoilage of the Amazon is a matter of private exploitation of land previously owned, still owned, by tribal folks. Basically stolen. And government officials benefit in the corruption. But, even so, there are more trees in the world than there have ever been. Many acres of swampland have been cleared and beautified. The advance of civilization has destroyed or damaged some ecosystems or certain species. Is this bad? There is no objective way to decide this. Classical liberal thinking would say it depends on who owns the land with the ecosystems, and, if you think it is bad, buy the land and preserve it. And if you cannot persuade enough people to back you financially to do this, then if you resort to government compulsion, to force, you are violating the property rights of the owners.  Every so-called environmental problem is this kind of thing. But, as for the natural environment of the world, unless we are talking taste, beauty, ugliness, this is a non-question. Resources have value only insofar as they are valued by humans. 

The question of climate change can be cast as an environmental problem, a special one. The allegation is that CO2 emissions are causing an existential threat to humanity (this claim, though repeated often by the news media, is actually not a very common scientific claim at all). So, they have argued, it is an extreme form of air pollution. It is not a very good claim at all. It is pretty definitely not an existential threat, and the proposed solutions are neither proved effective, are likely not effective, and are extremely costly and damaging to existing energy arrangements and economic development. 

That is Hillel’s version of environmental economics.

The Enigma of Barack Obama

 

Tablet Magazine has published this very long tantalizing speculative peak into the life and times of Barack Obama.

I have no expertise on the matter from which to comment or judge the accuracy of it. I post the link here in case you are interested to read it in whole or in part.

https://www.tabletmag.com/sections/arts-letters/articles/david-garrow-interview-obama?fbclid=IwAR0Ny6OUlQpRc7cdRAu8y2WM0vUlkWmqdPCpp2piEXB4xnTxrGVyLlnRe9k 

Reading it myself, I recalled my own reaction to the campaign and election of Obama, and, for what its worth, I decided to record here my current evaluation looking back. I think Obama has been misjudged by his many admirers, who see him as a highly intelligent, affable human being who brought a refreshing light to America as the first black president. My assessment is quite the opposite. And perhaps history will agree more with me in light of the miserable nature of our current public discourse.

Whereas I absolutely despise the man that Donald Trump is, while favoring many of the policies he followed in his presidency, I absolutely despise the policies and sentiments associated with Barack Obama, even though I acknowledge his intelligence, eloquence and political astuteness. I think, in the end, Obama will be credited with more damage to America than Trump. Here is why.

---

Very early on I found myself repelled by the content of Obama’s speeches. And during his presidency I could not watch him talk. He annoyed and frightened me. I was surprised to find how many people, by contrast, simply ate it up. I wonder how many actually thought about what he was saying, rather than simply reacting to his charisma and the fact that he was black. They liked the idea, the showcasing of a black American president. [Of course, to be picky, but quite relevant, Obama is not black, he is bi-racial, and he did not, like Michele Obama and his many black fans, grow up with the “black American experience” – he adopted this persona, it is a kind of an act.] At the time I opined that he was the worst president in my lifetime.

What irked and disturbed me was that, every time he opened his mouth, he insinuated the existence of some sort of festering grievance to be concerned about. To be sure, he did it cleverly and subtly, which made it scarier for me – because when Hillary Clinton tried to do it, it was so obvious and clumsy and earned her a lot of antagonism – when Obama did it scared me because it was insidious, it wormed its way into the consciousness without people realizing what they were admiring.

Basically, what Barack Obama did was to break with the long sweep of black American liberalism from Frederick Douglas to Martin Luther King to current black intellectuals, like John McWhorter and many others. Frederick Douglas, an ex-slave, was crystal clear. He rejected slavery and lingering racism. He rejected them as un-American, as a betrayal of basic and universal liberal American values. [Americans have always thought of classical liberal values as both an aspect of American exceptionalism, and as universal. After all, they emanate from British Enlightenment thought.] For Douglas, American liberalism was aspirational and inspirational. He took the words of the Declaration of Independence seriously – the self-evident truth that ALL people are equally endowed with the right to life, liberty and the pursuit of happiness. America had fallen down, had failed in its striving to implement these values, but the values themselves were unassailable. These included freedom to trade, to own property, to express one’s views, to assemble. He was explicit in rejecting special treatment for ex-slaves. He rejected paternalism as insulting. Similarly, MLK was clear in his condemnations, not of American liberal values, but of the failure to implement them, as they should have been implemented to create an America in which his children would be judged by the content of their character and the color of their skin would be irrelevant. Both were, in this sense, proud Americans. And there are today many other proud classically liberal black Americans who feel the same way – who embrace the progress against racism that has been made and seek an ever-better America.

Obama’s story is different, has always been different. He explicitly downplayed American exceptionalism and encouraged the view that the American experience was one that was dominated by the white race to the unambiguous detriment of non-whites. So-called American values are the values of colonial domination. It is time for blacks to rediscover their own authentic black experience, which involves the rejection of much of so-called liberalism. High on the list is the challenge against free speech, because the establishment powers control the channels of public expression for their own purposes. The damages of white domination need to be addressed, firmly using the mighty power of the federal government with access to an unlimited amount of tax money restored from the property of the unjustifiably rich. Social justice must be done. And this will involve, sooner or later, a complete transformation of the current economic and social system.  Obama was at the forefront, if not the leader, of a separate black identity, separate from and antithetical to the American identity. This became clear when Michele Obama, less subtly perhaps than her husband, declared soon after the election: “for the first time in my life, I am proud to be an American.” If this sounds like “wokism” it is because it is, before the name was invented. The fork in the road was Obama, not Biden. And his presidency left many Americans very uneasy, feeling an undercurrent of something very un-American, very hostile and threatening, being pushed by the Democratic party and its very unpopular nominee Hillary Clinton. In this very real sense, Obama caused Trump. Make no mistake about that.

And this black identity is really more than that. It is really an anti-white identity, where “white” is more a state of being than a skin color. Thus, the anomaly of the Jews and the Asians. Obama was never overtly anti-semitic, but his view of the Jews as a group, as distinct from his “Jewish friends,” is undoubtedly hostile. The Jews cannot claim to be non-white, no matter what their experience as victims or their skin color as north Africans. I know too little about foreign policy to claim to be able to provide expert opinion, but Obama’s foreign policy, for which the world is paying dearly today, was palpably anti-Israel. He worked long and hard, against the domestic and foreign current of events, to fashion a middle eastern alliance that patched up things with Iran and excluded Israel.  [His capitulation to Russia in Syria, Crimea and the Donbas arguably also encouraged Putin to invade Ukraine.] Besides this, is his clear refusal to disavow his friendship with and admiration of his one-time spiritual leader, the overtly anti-sematic Jeremiah Wright. Be this as it may, whether Obama can be credited with it or not, his black identity worldview has developed a new strain of virulent anti-semitism alongside its anti-white racism.

The flowering of woke ideology, with its intolerance of any dissident views, and rejection of any limits to the scope of social-justice-funded government activity, starts with Barack Obama. In the Tablet piece it fits with his childhood abandonment and resentment and his unbridled narcissism, but I leave that to the social psychologists.  In more mundane terms, Obama is the starting point of the ramping up of state-capitalism (“you didn’t build that”) buoyed by the emergency of the Great Recession and the permission it gave him to blow out the federal budget to unprecedented levels and pile on regulations in all aspects of life, especially business life (a ball picked up eagerly by Biden who has run even further with it). Obama honed the practice of disregarding and bending Congressional limits to implement unlegislated policies (something his successors have eagerly emulated). And even now, while still ensconced in D.C. he is apparently pulling the strings influencing policy directions.

Like all politicians Barack Obama should not be trusted, but more than most he should be feared. 

ISRAEL JUDICIAL OVERHAUL: EXPOSING THE MYTHS

 

ISRAEL JUDICIAL OVERHAUL: EXPOSING THE MYTHS

Oshy Tugendhaft

 

“The first thing we do is, let’s kill all the lawyers”.  So proposed, Dick the Butcher, in William Shakespeare’s Henry VI.  Often misinterpreted, the context in which Dick utters this phrase is key to its true meaning, that society could not exist in a state of fairness, peace and justice without the protectiveness of both the law and its staunch guardians.  Dick is suggesting that for their coup to prevail, they must eradicate society of the very defenders of justice who could prevent the revolt he intends to promote and then remove the power he would seek to usurp.  USA Supreme Court justice, John Paul Stevens, shared this reading of the line, in a 1985 decision:

“As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of Government.”

The objective of the Israeli Government’s “judicial overhaul” is to “kill the judges”.  It is designed, firstly, to give the ruling coalition an overriding say in the selection and appointment of judges, and secondly, to significantly circumscribe the Supreme Court’s power to review laws passed by the Knesset.

But, in an effort to stifle criticism of its reform proposals, there are two myths which have been perpetuated by Netanyahu and his Government, designed to mislead the Israeli population and Jewish supporters of Israel in the diaspora.

The first myth is that the judges appoint themselves. The second, is that a democracy requires that the will of the majority, which is represented by the elected majority in the Knesset, should not be frustrated by the decision of a Supreme Court, comprising some 15 judges, who are not elected by the people, which, so they contend, is the antithesis of democracy. 

We need at the outset, to expose these myths for what they are.

The judges do not appoint themselves.  Israel has a judicial selection committee comprising the following 9 members:

·       The Minister of Justice, Chairman of the Committee;

·       The Supreme Court President;

·       two additional Supreme Court justices;

·       an additional Minister;

·       two Knesset members;

·       two representatives of the Israeli Bar Association.

Accordingly, 4 of the 9 members are appointed by the Government, 3 by Supreme Court judges, and 2 by the Israeli Bar Association.

Judges of the lower courts are appointed by a majority ‑ 5 out of 9 ‑ of the members of the Judicial Committee. The appointment of a judge of the Supreme Court, requires a majority of 7 of the 9 members of the Judicial Committee. 

The Supreme Court, being the highest court in the land, is the ultimate judicial body, responsible for reviewing legislation of the Knesset.  Contrary to the false narrative perpetrated, therefore, the representatives of the Government have an absolute veto regarding the appointment of any judge of the Supreme Court.  No judge of the Supreme Court can be appointed without at least 2 of the 4 representatives of the Government on the Judicial Committee supporting that appointment, even if that appointment is supported by all 3 justices and the  2 representatives of the Bar Counsel.  Similarly, the 3 justices also have a corresponding veto right.  That, I would suggest, is a most balanced and equitable system. To contend, therefore, that the judges appoint themselves is a misrepresentation of the true facts.

The second myth is even more egregious.  It garners support in the thesis that because the judges are not appointed by popular vote, they are not truly representative of the will of the majority of the population.  In contrast, a government which holds a majority in the Knesset, maintains that it is representative of the will of the majority, and therefore, when it enacts important legislation, the Supreme Court should not have the power to strike down and invalidate that law, on the grounds that it is unconstitutional or lacks rationality.  But that, precisely, is what a liberal democracy demands.  One of the fundamental roles of such a Court, is to enforce the rule of law and hold government to abide by that rule of law.

What the Israeli Government is seeking to enact, are revolutionary changes to judicial oversight. At present, and for the past 30 years, the Supreme Court has the power, by majority vote of the Court, to invalidate laws which offend constitutional values or the rule of law. The Government’s proposal is that the Supreme Court will only be able to invalidate a law when it sits as a full bench of 15 judges, and when 12 out of the 15 determine that law to be unconstitutional (in the second proposal it has been suggested that such a decision would require unanimity).  But the proposed changes go even further.  In the event of the Court striking down any legislation on the grounds that it is unconstitutional or unreasonable, the Knesset, by a simple majority of 61 out of 120 members, would have the right to override such a decision of the Supreme Court.  The Government would thus arrogate to itself the unlimited power as final arbiter and judge to determine the validity of its own laws.  In short, even if the Supreme Court declared such a law to be invalid, the Government could override and invalidate that decision.  If that untrammeled power is not enough, it goes even further.  During the legislative process, if the Government determines that a particular piece of legislature is a Basic Law, it can in advance preclude the Supreme Court of exercising any jurisdiction at all regarding the validity of that legislation and so preemptively shield it entirely from judicial review.

The objective is clear.  The ruling coalition in the Knesset must have absolute power and the Supreme Court, which has historically at least since 1992 served as the only and ultimate check on that power, must be emasculated and neutralized.  Besides controlling the appointment of the judges of the Supreme Court, the Knesset would reign supreme, and it would even be beyond the power of the Supreme Court to review any legislation which the Government by simple majority declares to be a Basic Law. 

It is not only dictatorial regimes that may seek to weaken the review power of courts in respect of important legislation and executive action. It will often be attractive to a democratically elected government, to believe that because it enjoys electoral majority support, it is axiomatic that the laws it enacts are necessarily in the best interests of the country and its people and should not be capable of being assailed by a court, whose judges are not appointed by the same process.  However, in every liberal democracy, there has always been an adherence to, and recognition of, the fundamental principle of the separation of powers, which prescribes, amongst other things, that the highest court of the land has to be instrumental in placing a check on the actions of that government, derived from the rule of law.

Without that fundamental separation of powers and the residual power of the Court to set aside legislation and administrative conduct which violates constitutional principles or lacks rationality, there cannot be a true liberal democracy.  We encounter, instead, the tyranny of the majority, about which the renowned French political scientist and philosopher, Alexis de Tocqueville, expressed concern almost 200 years ago, as part of his study of democracy in America.  So too, John Stuart Mill, in his 1859 book “On Liberty”, warned about the inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions.  This results in oppression of minority groups comparable to that of a tyrant or despot.

Since Israel does not have some of the other checks against government excesses, which are enjoyed by certain other democracies, with a separation of the legislative and executive bodies and sometimes a bicameral legislative body – examples are the House of Commons and the House of Lords in the United Kingdom and the House and  Senate in the USA ‑ the only check that Israel has against any government exploiting its majority in order to pass whatever legislation it may deem fit, no matter how extreme or self‑serving, is its Supreme Court, with the power to review and strike down offensive legislation and set aside administrative abuses of authority and power.  Accordingly, the Supreme Court is there to safeguard minority factions against the tyranny of the majority or, as it has sometimes been described, the tyranny of the masses. 

That was precisely Tocqueville’s concern, that a majority could become an all‑powerful force and could tyrannize unpopular minorities and marginal individuals.  Unchecked political power will eventually always lead to tyranny.  It is the Court that is the ultimate check against the unconstitutional or irrational exercise of that political power.  Inherent, therefore, in the separation of powers, is the function of an independent judiciary, which must hold the legislature and executive to account.  It can only perform that function, with an uninhibited review process which the Israeli Government’s judicial overview proposals are designed to remove.

We in South Africa, are readily able to appreciate the position as it prevailed   under apartheid before 1994, with absolute parliamentary sovereignty and our courts bereft of any judicial review power.  And so, the most pernicious legislation could be passed, including the 90- and 180-day arbitrary detention laws, in respect of which the courts had no power of review at all.  In contrast, since the advent of democracy in South Africa, our Constitution guarantees, inter alia, personal rights and freedoms and entrenches the power of the Constitutional Court, to strike down and declare invalid any legislation or administrative act which violates those rights and freedoms. There have been countless judgments of our Constitutional Court, which have declared unconstitutional and invalid laws passed by the ruling ANC government.  In one of its leading judgments dealing with the Nkandla scandal involving then President Zuma, Chief Justice Mogoeng introduced the unanimous judgment of the Court, with the following statement:

“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalized during the apartheid era.  To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy.  For this reason, public office‑bearers ignore their constitutional obligations at their peril.  This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

Israel, whilst it does not have a written constitution, has a body of law, developed over many decades, which serves as its uncodified constitution.  A written or codified constitution is not a requirement.  One of the strongest constitutions in the western world, is the uncodified constitution of the United Kingdom, developed over centuries of jurisprudence.

One cannot overstate the extreme existential danger that the Israeli Government’s judicial overhaul policy poses to the entire social fabric of Israeli society.  In a recent interview, constitutional expert, Professor Yaniv Roznai, an Associate Professor and Vice‑Dean at the Harry Radzyner Law School, and Co‑director at the Rubenstein Center for Constitutional Challenges at Reichman University in Herzliya, expounded on that danger as follows:

“The question of checks is crucial.  If you look around the world, all other democracies have various mechanisms to make sure that political power is checked and diffused.  Israel is the only democracy in the world without any of these mechanisms.  None.  We have only one parliament with one house that is controlled by the coalition leadership, usually 5 or 6 politicians, who can impose their will through coalition discipline.  And you need to remember that in the Israeli system, most parties are actually non‑democratic in the sense that there is no democratic process within the party.  So, we have totalitarian parties where you have a leader who decides who will be in the party and in which place.  It is in this context in which the Government is already so strong, that now we want to get rid of those limited checks, such as the Court that were crucial.

……………

I am extremely worried about our democratic future.  Being a student of comparative constitutional law, and seeing around the world the process of democratic erosion, and the way populus Governments abuse legal and constitutional means to undermine the other democratic institutions of the Government, people now tell me: ‘What do you want? The Israeli Supreme Court now has absolute powers’.  This is of course not true, but I don’t know a country in history that lost its democratic character and became a dictatorship because the court was overly activist in its human rights protection or had a very broad understanding of reasonableness doctrine.  But I know of many democracies who have collapsed because the Government and executive had too much power.”

One thing is clear.  The controversy created by the Government’s intended judicial overhaul is the most profound and critical internal issue that Israel has faced since its establishment. The divisiveness, rancor and animosity that this proposed legislation has created is as unparalleled as it is tragic.  If this legislation as contemplated is passed and implemented, it will forever adversely change the face of Israeli civil society.

Disregarding Netanyahu’s personal stake in the proposed legislation consequent upon the criminal charges he faces, his latest explanation that this judicial overhaul will not destroy democracy but will in fact strengthen it, is, ironically, the mantra of every demagogue who seeks to justify the erosion of the courts and the rule of law on the pretext that a democratically elected majority government must be the only and final arbiter of its exercise of political power.  That, precisely, is the recipe of every authoritarian state.  Unsurprisingly therefore, already last Monday, immediately after the initial law was passed by the Knesset, removing the power of the Court to apply the critical reasonableness standard, Ben-Gvir crowd glowingly and chillingly that this was only the beginning for “the salad bar is open”. Beware the slippery slope.

In the final analysis, we should never take democracy or democratic values for granted.  They do not self‑regulate.  In every truly democratic society, it is the responsibility of the people ‑ hence the valiant and indefatigable 30-week protests ‑ to guard against the potential disintegration of that democratic order through the concentration of hegemonic power, which finds expression in Lord Acton’s famous quote:

“Power tends to corrupt and absolute power corrupts absolutely.”

The Israeli Supreme Court, which for decades has enjoyed international respect and recognition for its independence, judicial integrity and profundity, has provided, and must continue to provide, the necessary protection against any abuse of that power by any government du jour.  If the judicial overhaul proposals are implemented, it will forever be stripped of that power and Israel will cease to be a liberal democracy.

If you want to be a democracy, there can be only one solution. You need broad consensus for anything that dramatically shifts the balance of power and increases its concentration in the hands of the government.  Any radical changes must be resisted because they don’t allow for careful debate and reflection over successive parliaments.  If there is any suggested room for improvement of the Supreme Court, absent rational deliberation and ultimately consensus, it will lead to civil disobedience and revolt.

Oshy Tugendhaft is an prominent attorney in Johannesburg, South Africa.