Ruth Gavison (1945-2020): "A nation turns its lonely eye to you"
Ruth Gavison (1945-2020): "A nation turns its lonely eye to you"
A brilliant jurist, a nominee to the Supreme Court who never became a justice, and a fierce opponent of Israel's activist Supreme Court, Professor Gavison was a force Israelis now deeply miss.
Tomorrow, August 15, marks two years since the death of Professor Ruth Gavison, one of the greatest jurisprudential minds in Israel’s history. To honor her legacy, we’re sharing this brief summary of her career, along with some of her thinking about an Israeli Constitution, a subject that is even more burning now than it was in her lifetime.
Here is what we have planned for this week (subject to changes as the news cycle requires):
Monday (today) : Professor Ruth Gavison, who passed away two years ago this week, was a profound legal mind of the sort Israel desperately needs today (available in full to everyone).
Tuesday: in “Breaking up is hard to do,” we will revisit the issue of dividing Israel into two countries, which though it remains (to my mind) entirely unrealistic, is an idea garnering ever more discussion. We’ll share a video that has gone viral in Israel as a taste of what many Israelis have had enough of, along with newer maps of the plan and discussions of it (available in full to paid subscribers).
Wednesday: a podcast (available in full to paid subscribers) with Professor Ephi Shoham, a scholar of medieval Jewish history at Ben-Gurion University who is also very active in the pro-democracy protests movement. Professor Shoham will discuss three topics which we will present over two days:
(1) His fear that the protests now roiling Israel could well end in violence
(2) Why, though he is a deeply committed religious Jew, what is happening in Israel now has led him to stop identifying publicly with the religious-Zionist community (and to no longer wear a kippah, for example)
(3) The looming possible strike of Israel’s universities, the precedents for long strikes, what the faculties might hope to accomplish by striking
The first of those three topics we will cover on Wednesday, while on ….
Thursday, we will cover the second two in the latter half of the two-part podcast (available in full to paid subscribers): the crisis unfolding in religious-Zionism for some of its formerly most committed adherents, and the possibility that Israeli universities could delay the opening of the academic year as a protest against the judicial reform.
Professor Ruth Gavison (1945-2020)
The first time I met Professor Ruth Gavison was in 1991, at the suggestion of my PhD adviser at USC. He told me that there was a visiting professor at the Law School that year, an internationally recognized and deeply respected legal scholar, and that I ought to go to talk to her. “She’s from Israel,” he added as enticement. So I set up an appointment.
From the moment I walked into her office, Professor Gavison exuded nothing but seriousness. It would be nice to be able to say that we chatted for a few minutes, but we didn’t. She wanted to know what I wanted. I told her. She asked what I was writing about, and I explained the question in legal philosophy that I was interested in exploring.
It took no time for her to respond, with a question, not surprisingly. “Are you a producer of legal philosophy or a consumer?” she wanted to know. I had never thought about that question, but it seemed preposterous to claim that I was a “producer” of legal philosophy, so I mumbled something about how given that I was a student, I assumed that I was a consumer.
She was kind, but clear. She had no time for mere consumers.
The next time I saw her was a decade later, in March of 2001. By then, my wife, kids and I had already moved to Israel, which between 2000 and 2004 was embroiled in the Second Intifada. Buses and restaurants were being blown up all the time, Israelis and Palestinians were getting killed almost daily—to say that it was a gloomy period in Israeli life would a gross understatement.
One day we saw an ad for a lecture to be given by Ruth Gavison, on the subject of “philosophical justifications for Israel’s existence,” to be held in one of Jerusalem’s larger hotels. Though more than twenty years have passed, I still remember that cold and rainy night. We arrived early, but even though about 1,000 seats had been set up, there was scarcely a space to be had. That was the sort of thing that got us to fall in love with this country way back when—a lecture by a legal philosopher could draw 1,000 people on a rainy night. This was a place where people still thought.
Prof. Gavison’s talk was spellbinding. She later published it in Azure, the quarterly then published by the Shalem Center. It’s still available on line, and is very, very much worth the read. (Yes, it’s about thirty pages without the notes, but serious questions can’t be answered in soundbites. It takes time and space to think deeply about issues that matter.)
Over the years, we developed a friendship. Coffee here and there, a meeting occasionally at her office. Though there were many things that I admired about her, chief among them were the seeming contradictions in her commitments, which to her, of course, were not at all contradictions. Her role as a founding member of the Association for Civil Rights in Israel (ACRI), where she served as Chairperson and as President from 1996 to 1999, would label her for many as a liberal or leftist. So, too, might her role as the founder of Metzilah, the Center for Zionist, Jewish, Liberal, and Humanistic Thought.
To the Supreme Court, however, Gavison seemed anything but a liberal. In 2005, she was nominated to serve as a justice on the court, which was then headed by Chief Justice Aharon Barak, whose expansive view of the court’s authority now lies at the very core of Israel’s looming constitutional crisis (likely to come to a head, if it does, between September and November). Gavison, a liberal when it came to civil rights, Palestinians and much more, was no liberal when it came to the role of the court. She was a strong critic of Barak’s jurisprudence, and as a result, he objected to her appointment.
That Gavison never became a member of the court (many years earlier, she’d clerked for Justice Benjamin Halevi at the Court) fuels the claims today that the court can replicate itself, adding judges who agree with its current disposition and blocking those who do not. That not-entirely-incorrect claim lies at the heart of the the worldview of those who seek to change Israel’s judicial system, more on which in a moment.
So, was she a liberal or a conservative? Her role at ACRI would suggest the former. Her view of the Court would suggest the latter. How about what is probably her best-known project, now known as the Gavison-Medan Covenant, on which she worked with Rabbi Yaakov Medan, an Orthodox rabbi, seeking to find compromises between religious and secular that might enable the two communities to live together? That project illustrated that she simply defied categories, which is what made her so unique, so important, and so much missed today.
A brief English version of the Gavison-Medan Covenant can be downloaded here. Because compromise of that sort never got traction in Israel, today there is more discussion of carving the country into two states, one religious and one secular, than there is of compromise. Tomorrow, we’ll address that Separation Movement in more detail.
Given her commitments to Israel, the rule of law, a shared democratic society and more, it is not in the least bit surprising that Professor Gavison also wrote quite a bit about Israel’s need for a Constitution. Her most important English-language piece on that subject also appeared in Azure in 2002, as A Constitution for Israel: Lessons from the American Experiment.
Speaking of Israel’s need for a constitution, she wrote:
Israel today, fragmented and strife-ridden, may seem farther than ever from seeing such a process through, and the sense of crisis that has enveloped the country since negotiations with the Palestinians collapsed in October 2000 tends to direct attention to issues that seem more urgent. But it is precisely difficult times such as these that reveal the pressing need for a constitution, and that are most likely to precipitate its creation.
Then she sought to draw a lesson from the American experience:
To what does the United States Constitution owe its longevity? A great deal has been written about the constitutional arrangements as they appear in the final document—concerning the balance achieved among branches of government, the relations between the federal government and the states, the complex mechanism for effecting amendments, and the guarantees of fundamental rights and freedoms. Prior to all these, however, was a single guiding assumption, one which underlay the entire process of drafting and ratifying the constitution, and which finds expression throughout the writings of its framers, and especially in The Federalist: That a successful constitutional arrangement must clearly, explicitly, and enduringly distinguish between what we may call “constitutional politics” and “ordinary politics.” This distinction is possibly the most important contribution of the American constitutional undertaking.
The constitution is based on the belief that the activity of the regular political arena, in all its complexity, must be kept separate from the parameters—the “rules of the game”—within which this activity takes place. Establishing and maintaining such a distinction is no simple matter, and even an enduring constitution of the American type cannot draw the line clearly in all cases. The framers understood this, yet they insisted that constitutional authority must be seen as essentially different from “ordinary” authority, and that this distinction is the source of the stability of every form of government based on the consent of the governed.
Here is what is so fascinating about Professor Gavison. That she was a fierce critic of the Barak court, we’ve already stated.
But, this part of her article actually supports not those who opposed Barak’s activist court, but those who oppose the judicial reform that is designed to undo Barak’s legacy. To those who say, “you’re just frustrated that you lost the elections” or “you’re sore losers” or “what, every time a group doesn’t like legislation that the government is about to pass, it’s going to try to get mass protests going, block highways, incapacitate the air force?", many of those protesting would respond that no, what lies at the core of their activism now is not a desire to bring down the government. “Yes, we are aware that these protests are a dicey proposition,” they might say, “and yes, what we’re doing is a precedent that could well render Israel even less governable than the country has long been.”
But, they would say, echoing Professor Gavison, who in turn was echoing the Federalist Papers: there is a difference between “ordinary politics” and “constitutional politics,” the latter of which sets (or changes) the rules of the game. “Constitutional politics,” America’s framers, Professor Gavison and many of today’s moderate protesters believe, belong in a forum that is not the forum for “ordinary politics.” If Israel’s ruling coalition wants to change the rules of the game, it must do that in a setting that is entirely different from how it engages in regular partisan debate and legislation.
Tragically, this government, even many of its erstwhile supporters acknowledge, has shown itself, utterly incapable of doing that. And that, they would insist, is why they are protesting—to prevent Israel’s treating “constitutional politics” as “ordinary politics.”
Twenty years ago, when Professor Gavison published the above article, she imagined a Knesset that could elevate itself about “ordinary”, highly partisan politics. It’s hard to imagine that she would imagine that today.
We will never know, of course, but what we do know is that it is her sort of mind, Zionist and liberal, creative and imaginative beyond what any label might suggest, is precisely what Israel is missing today.
There is no better way to honor her and to learn about her than to hear her in her own voice, here in dialogue with Shmuel Rosner (whose episode on our podcast you can listen to here). In particular, if you don’t have time for all of it, hear her discuss the importance of compromise at about 20:40 and following in the video below:
It’s impossible to hear the clarity of her thinking, the passion of her commitments and depth of her devotion to Israel without being struck by how fortunate we were to have her—and how desperate we are today for more minds like hers.
There is little doubt that Professor Gavison would have been heartbroken at what is unfolding in Israel today; but what is almost as certain is that were she still with us, she might well have been one of the people most able to help us fix it.
יהי זכרה ברוך. May her memory be a blessing.
With the High Holidays just weeks away, we wanted to share the schedule for Israel from the Inside during that period.
During the week of Rosh Hashanah and the Fast of Gedaliah (on Monday, there will be no written column on Monday, September 18th, but we will post our regular Wednesday podcast on September 20.
During the week of Yom Kippur, there will be no written column on Monday, September 25th (which is the day of Yom Kippur), but we will post our regular Wednesday podcast on September 27.
During the week of the holiday of Sukkot (Monday, October 2 and Wednesday, October 4), we are planning not to post.
The regular schedule of written columns on Mondays and podcasts on Wednesdays will resume the following week.
To all who are observing and celebrating, our wishes for a meaningful and joyous High Holiday season.
Impossible Takes Longer is now available on Amazon and Barnes & Noble and at other booksellers.
Our Twitter feed is here; feel free to join there, too.
Our Threads feed is danielgordis. We’ll start to use it more shortly.
Your comments on Ruth Gavizon were appropriate and touching and her all -too-rare combination of fierce independent thinking (which frightened Aharon Barak) and willingness to reach across the aisle to her seeming ideological adversaries to reach a modus vivendie is badly needed and sorely missed. Her distinction between constitutional politics and ordinary politics is insightful; by all accounts it seems that she saw Barak (and his judicial descendants) as engaging in ordinary politics under the guise of constitutional politics.
Prof. Gavizon's belief that Israel badly needed a written constitution, in part to reign in an out of control Supreme Court, is known. Moshe Koppel, the founder and head of the much maligned (unjustifiably IMHO) Kohelet Forum wrote two draft constitutions in the early 2000's before founding Kohelet and consulted with her extensively. He included in at least one of the drafts very explicit limitations on the Supreme Court which Prof. Gavizon recognized and accepted as necessary even though they were not to her taste.
Doubtlessly she would have considered the current plans of the Supreme Court to rule on the constitutionality of the basic law restricting the use of "reasonableness" in court decisions as the ultimate in constitutional absurdity, given that it was Aharon Barak & the Supremes that promulgated the principle and ruled that Basic Laws constituted Israel's constitution. In Talmudic parlance it's a תרתי דסתרי, an inherent, irreconcilable contradiction. Unless of course, you disparage as does Barak, the Jeffersonian definition of democracy, as best expressed by Abraham Lincoln as government government of the people, by the people, [and] for the people as mere formal democracy of no real value.
I urge you to interview for your substack, members of the intellectual elite holding contrary views about the reform to yours. For example Gadi Taub, Yisrael Auman, and indeed who many consider the devil incarnate himself, Moshe Koppel. Their views have been assiduously ignored or downplayed by the mainstream media. Until recently Gadi Taub had a regular column in Ha'aretz but was cancelled as they ruled that his views were "illegitimate". This from the newspaper that bills itself as the paper for people who think (a more accurate ad slogan would be the paper for people who think only they think).
For the record, I write this as someone who has long recognized the pressing need for judicial and constitutional reform, who agrees with many but not all of the proposed changes in principle if not in detail, but recognizes that Levin & Rothman have made every possible mistake in going about it and as such the reforms need to shelved, preferably in favor of a written constitution.