April 3, 2023

Moshe Koppel and Yedidia Stern: From Crisis to Constitution?

Zalman C. Bernstein, the pioneering businessman, entrepreneur, and philanthropist, was most of all a believer in ideas. In particular, he believed that great ideas were the driving force behind history, and that the study of these ideas—not only through texts, but also by means of thoughtful conversation—was the key to shaping the future of his beloved Jewish state. It was this belief that led to Bernstein’s foundational support for the vision of Shalem College, and which, stated Koret Distinguished Fellow Dr. Daniel Gordis at the college in March, led college leadership to decide that this year, the memorial lecture that bears Bernstein’s name should be a serious and civil conversation about the most challenging issue facing Israel today: the proposed judicial reform and its ramifications.

Speaking to Shalem’s student body against the backdrop of more than two months of social unrest, Gordis began by explaining that while the context of the conversation was the current political moment, the speakers were chosen for their having been involved in drafting constitutions for Israel for nearly two decades.

Prof. Moshe Koppel

Computer scientist and scholar of rabbinic literature Prof. Moshe Koppel, for example, is co-founder and chair of the Kohelet Forum, an Israeli think tank that works to advance Israel’s dual Jewish and democratic character, and which played an active role in advocating for the judicial reforms in the Knesset. He is also a longstanding advocate for a constitution for Israel: He has previously participated in meetings of the Knesset’s Constitution Committee and prepared the drafts for the committee’s work on religion and state.

Legal scholar Prof. Yedidia Stern, meanwhile, is the current president of the Jewish People Policy Institute, senior fellow at the Israel Democracy Institute, and former dean of the Faculty of Law at Bar-Ilan University. An expert on constitutional law, he was also chairman-elect of the Coalition Committee to Enact an Israeli Constitution—and former lecturer for Shalem’s specially designed course “Israel as a Jewish and Democratic State.”

Prof. Yedidia Stern

They are also, as Stern pointed out in his opening remarks, close friends of many years—and this, despite their tendency to hold divergent views.

Gordis began by asking both speakers to describe their visions for Israel, and to explain how these visions have been affected by the current social crisis. Koppel answered that he wants Israel to be a free and flourishing democracy, which will allow the Jewish people to develop its culture in an organic, bottom-up way. He also wants Israel to be a “bayit” (home) for the Jewish people, in that it feels empowered to express its uniqueness without fear of reprisal or interference. For this to happen, he said, Israel needs a constitution that “defines the state’s Jewish character, the rights of all its citizens, and the arrangements according to which the government will operate.”

Explaining that the procedure by which we arrive at these arrangements is no less important than the need to arrive at them at all, Koppel warned that too often, we base our decisions on what we know, and fail to acknowledge what we don’t.

“When we decide on the process for electing judges, for instance, we can’t look at the justices who sit on the court today. Their politics and ideologies aren’t relevant, because we’re deciding on a process for electing justices that will be used in another ten, twenty, and a hundred years,” Koppel said, adding that he believes this approach to determining Israel’s balance of powers is at the root of much of the problems with the judicial-reform discourse. He concluded by explaining that he believes that justices’ views should reflect those of the public that chose them, and that “in a free and flourishing democracy, judges cannot be above the law. I want there to be a strong Supreme Court, and I think there should be barriers to legislation. But I don’t think that justices should have unchecked and unbalanced powers. I don’t think that they should be permitted to make decisions whose logic isn’t transparent, and that are not based in law.”

In his response, Stern stated that this own vision for Israel isn’t the important thing; rather, what matters is to “find a feasible vision that all of Israel’s citizens can get behind, which balances the need for a Jewish character for the state with the equally important values of democracy and equality.” Echoing Koppel, he added that he thinks the real question of the moment is not “how we as Jews handle controversy, but how we as a state address it. What are the mechanisms by which the state both avoids and deals with the kind of crisis we’re in now.”

Like Koppel, he believes that a constitution is the best way to answer these questions, although both speakers concede that such a goal feels a long way off.

Explaining where he and Koppel differ on the matter of the reform, Stern concluded by saying that while he agrees that the court’s justices should not be able to choose themselves, he opposes a situation in which they are beholden to political sides and interests. “My fear is that by putting the power of selection into the hands of our politicians,” he said, “the result will be the radicalization of the court, and its failure to protect the rights of vulnerable minorities.”

In his conclusion to the dialogue, and prior to students’ questions, Gordis pointed out that over the course of the last hour, “We’ve managed to have exactly the kind of conversation that Israeli society needs to have.” He finished by relating the classic story of Rabbi Yohanan ben Zakkai, who tried to have himself smuggled out of Jerusalem during the Roman siege of 70 CE. When caught by the Roman Emperor, Gordis explained, ben Zakkai asked that in exchange for the loss of Jerusalem, he be granted an educational institution—“Yavneh”—where he could save the Jewish nation through study and teaching.

“If an educational institution was what Jews once asked for to compensate for the loss of their national sovereignty, today, it is this educational institution that can save Israel from destruction. The conversation we’ve had here this afternoon,” Gordis insisted, “proves exactly that.”

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