Retired Supreme Court Justice Edmond Levi was always considered a ‘conservative’ and ‘rightwing’ judge – but a closer reading of his verdicts reveals the constitutional basis for a ‘one state justice.’
By Itamar Mann
Israeli Supreme Court Justice Edmond Levi issued his last opinion in January 2012, before retiring. In an important case, the Court upheld provisions of the Citizenship Law banning Palestinians from the West Bank and Gaza from entering Israel to live with their Israeli spouses. The ink on Levi’s minority opinion may have already dried; but it’s safe to assume that the blood that froze in the hearts of couples the decision separated, is still as hard as ice.
It would therefore be a worthy farewell to this judge to consider: how does his vehement rejection of the majority ruling in the Citizenship Law case fit in his judicial trajectory? And more generally, what legacy did Levi leave when he left the Supreme Court?
There is a coherent, albeit uneasy line of reasoning connecting his three most significant judgments, with considerable constitutional implications for the future of Israel. All three are minority opinions. Taken as a whole, Levi’s legacy challenges us to engage in an exercise of imagining a state in which the minority opinions he expressed from the bench, become a majority opinion on the streets.
In the first opinion, which Levi wrote on the eve of the “disengagement” from Gaza (June 9, 2005), he stressed the rights of settlers to stay in their homes. Going back to Israel’s founding, he compared them to the pioneers that came to Mandatory Palestine (mainly from Europe), undermining the distinction between them and Jewish citizens of Israel:
The project of settling Gush Katif and north Samarea started more than 30 years ago, when visionaries and pioneers responded to the challenge presented to them by the state’s captains […] they built houses, toiled the land, and turned it into a blooming garden, established factories that were used not only for their own support but also as a source of livelihood for their Arab neighbors. And not only did the settlers set their own homes there, but also the homes of their children and grandchildren, who were born with the years that passed, children and grandchildren who since they came to the world didn’t know any other reality, and never had another home.
In the second opinion, the Court considered whether Israeli constitutional law grants a right to “dignified livelihood.” Levi opposed the leading opinion of then- Chief Justice of the Supreme Court Aharon Barak, and sought to strike down a decision of the legislature to reduce welfare subsidies (December 12, 2005). In contrast to Barak, Levi thought that Israeli constitutional law goes beyond merely ensuring the material survival of citizens, protecting them instead from abject poverty. His dramatic opinion begins by quoting the poet Roni Somek (my free translation): “I was a child in a house called a cabin / in a neighborhood people called a ma’abara / the only line I saw was the horizon, and everything under it looked like / poverty.”
Somek’s words are particularly poignant coming from Levi’s pen. By using the Hebrew word “ma’abara” (transit camps), Levi once again returned to the founding of the State – this time more explicitly referring to its darker side. These transit camps were the infamous shantytowns in which Jewish immigrants from Middle Eastern countries were housed in the early years of statehood. They are perhaps the most painful symbol of the discriminatory policies made by an administration comprised largely of European immigrants. For Levi, who was born in Iraq in 1941, these camps are also a personal memory. Using this memory from transit camps as a normative resource, Justice Levi informs us that the experiences of those who paid a price when Israel was established should inform the state’s values today.
Finally, in the recent Citizenship Law case, the judge asserted the equality between all Israeli citizens, Jews and Palestinians alike (January 11, 2012). Alongside Israeli civil rights groups, the petitioners were Palestinian citizens of Israel, who asked the Court to allow their spouses from the West Bank and Gaza to live with them in Israel.
The official purpose of the provisions preventing them from living together in Israel was initially cast in the language of security, and stressed that Palestinians belong to an enemy population. However, policymakers gradually acknowledged more openly that another objective was to bar Palestinians from entering Israel, supposedly ensuring the persistence of a Jewish majority among citizens. According to this reasoning, maintaining a Jewish majority is a legitimate legislative aim, even if it encroaches on the fundamental rights of Palestinian citizens of Israel.
These provisions, said Levi, challenge the very possibility of Israeli citizens living together:
Whoever believes that the majority, who brought this law into the world, can be protected from its pernicious harm for the long run, is wrong. I’m afraid it will threaten every Israeli as such, as it has the power to destabilize the foundations that we all stand on, shoulder to shoulder. In the end of the day, the damage of such a measure […] does not fall short of the damage wrought by the terrorism we try to protect ourselves from.
In this decision too, Justice Levi returns to the State’s founding. The first words he writes in the opinion are a quotation from the Israel’s Declaration of Independence, written in the context of war. The clause Levi emphasizes is the one in which the declaration addresses Palestinians: “We appeal – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State if Israel to return to the ways of peace and play their part in the upbuilding of the State, on the basis of full and equal citizenship.” This appeal too can be read as mere hypocrisy, as many of these Arab inhabitants were soon to become refugees and denied entry into Israel. But lets suspend our judgment, and believe that Justice Levi is challenging us to take the idea of “full and equal citizenship” seriously and uncompromisingly, to its logical conclusions.
As many commentators have already pointed out on this website (e.g., here, here and here), Israel is currently undergoing a dramatic change: The government and the Knesset are determined to import into Israel the long-standing oppressive regime in the West Bank and Gaza. On the other hand, a struggle for social justice that started in the streets last summer has yet to say its last word. Levi’s three judgments suggest constitutional principles that could form a basis for the movement to renew the struggle for social justice – this time with the potential to translate it into political power.
The fact that only few of us agree with all three judgments reflects a real tension between them. How can recognition of the rights of settlers square with the robust civic equality Levi asserts in the Citizenship Law case? Some would dismiss this juxtaposition as mere hypocrisy. It is impossible to overlook, for example, the systematic appropriation of private Palestinian land that the settlements entail. A movement that will embrace both judgments – alongside a third pillar of social and economic justice – will have to go much further than the Judge ever did in addressing such questions.
Levi may have not realized this, but the only conceptual framework that can accommodate all three judgments, is one in which Israel recognizes its role as a state for Jews and Palestinians alike. This does not necessarily mean a “one state solution”. It remains to be seen if Palestinians in Ramallah and Gaza will choose to join as Israeli citizens. More immediately, Levi’s legacy leaves us with the recognition that Israel can only truly be a Jewish state, if it is also a Palestinian one. There is no other understanding of the state that can protect the rights of all its citizens equally – Israelis and Palestinians, settlers and non-settlers. Rather than speaking about the faraway vision of a “one state solution,” we can now speak, with Levi, about a form of “one state justice.” This idea likely goes well beyond Levi’s own personal political views. But it is the objectivity of his text, and the inner logic behind his decisions, that we are after; not the subjective ideas he may or may not entertain.
A movement that will demand this kind of justice would not oppose a university in the large settlement Ariel, and its actors will not object to performing in theatres in the city (as actors identified with the traditional Israeli left did). We must realize that the settlers of Ariel are entitled to public education and culture, no less than any other Israeli citizen. To the contrary, such a movement will embrace such a university and support it, for example by pressuring it to offer courses in Arabic, hire Palestinian faculty, and recruit a diverse body of students – from both sides of the Green Line.
Just as there is no reason that Palestinians who built Ariel with their own labor will not study in the city, there is also no reason to refrain from forming political alliances with settlers who will choose to stand “shoulder to shoulder” with the Palestinian citizens of Israel. But one must go even further, and include their “neighbors,” as Levi calls them – the non-citizen Palestinians who live under Israeli control – as potential members of this movement.
The ideas may sound familiar. In the last few years, more voices on the Israeli right and left recognize a “one state reality.” Justice Levi’s message – for which he is probably the most important judge we have ever had – is that even if this reality demands fundamental changes, these changes are not foreign to the state. When Levi goes back to Israel’s founding and the Declaration of Independence, he draws a direct historical line from 1948 to the present.
Particularly interesting, in this context, is a little epilogue that Levi added to his last minority opinion in the Citizenship Law case. As the Judge predicts, “some will claim that the minority judges recognized what is called ‘the right of return’ of the 1948 refugees.” Such ideas, he adds, “are outrageous, as founding the Jewish home in Israel, and ensuring it for posterity, was always at the cornerstone of my worldview.”
The strange thing about this clarification at the end of the opinion is that the Palestinian right of return was of course never at issue in the case; neither the petitioners nor the government put forth any arguments having to do with it. Why then, did the Judge feel the need to step out of the framework of the legal dispute, and make this unusual pledge of allegiance? Planting it in this strange context, after all the words not only about full equality, but also about “shoulder to shoulder” solidarity, makes it look like a Freudian defense mechanism, as if Levi unconsciously felt that stressing civic equality might inevitably lead to recognizing such a right. Unable to consciously accommodate this undesirable impulse, the judge projected it on some future interlocutor, a figment of his own imagination that he needed only in order to refute.
Taken this way, this looks more than anything else like an inadvertent confirmation that indeed the 1948 refugees are an inseparable part of civic equality in Israel.
Itamar Mann is a doctroral candidate at Yale Law School