On the voice of the masses and the silence of the law

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On the voice of the masses and the silence
of the law
By Yedidia Stern and Avi Sagi


This week masses of people went out to demonstrate in the city
square against the decision of the State Prosecutor's Office and the
attorney general. The voice of the masses, which in the past was
directed against legal decisions that decided on weighty ideological,
social and cultural controversies, was directed this time against a
decision at the very heart of professional legal territory. What
inflamed the public discourse? What is impelling the vast majority to
reject the plea bargain?

One of the central functions of the judicial process is to provide
meaning to a factual occurrence. The naked truth is chaotic, complex,
with many layers and meanings. There is a need for a mediating,
explanatory factor to translate an unruly collection of controversial
facts into an orderly and consistent narrative. The more important the
issue under discussion and the more polarized the debate surrounding
it, the greater the need for an organized and logical narrative.

That is the case with the issue before us: Is the former president an
amiable popular leader, or a serial rapist? The law is supposed to
serve as the arena for decision. Not only in order to punish or to
acquit every accused person as he deserves, but also to enable the
creation of a public narrative "truth," by the light of which individual
awareness will be shaped and collective awareness will be
consolidated.

The unique quality of the judicial process lies in the fact that it
operates according to fixed rules of the game, known in advance,
which reflect cumulative human experience. The formal rules include
the legal procedures, the rules of evidence and the statutes of
limitations. The judicial process, in whose context each of the parties
gets his day in court, is always staged in the light of these rules of the
game. Preserving them is crucial for granting credibility to the
interpretative work of the judge, which translates the factual
Rashomon into a "true" narrative. The public is willing to accept the
narrative related by the verdict as the bottom and authoritative line,
because the rules of the game make it clear that the process has been
cleansed of personal whims, biases based on personal interests, or
cultural preferences.

The judicial process has a liberating value. Just as the theater tries to
achieve catharsis among the spectators, so does the authoritative
j
udicial story bring about a purifying psychological process of
internal cleansing among the citizens. When the true story comes out,
p
ublic order is restored, the distinction between
g
ood and evil is
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sharpened, and there is a rehabilitation of the citizens' confidence in
the fundamental ethical distinctions according to which they lead
their lives.

Therefore, when the attorney general refrained from bringing the saga
of the resigning president to the point of complete and authoritative
j
udicial clarification, he denied Israeli citizens the process of
p
urification that they wanted to experience. The intensity of the
opposition and the protest, which was focused on the attorney
general, stems from the fact that the drama was constructed over the
course of a long year - by the police and the Prosecutor's Office
among others, under the guidance of the attorney general - and we
were told wildly contradictory stories: on the one hand, serious sex
crimes; on the other, a terrible blood libel.

We should not be surprised at the masses in the city square who
claimed: "Justice was not done." The plea bargain does not satisfy
p
ublic opinion, because it did not enable the composition of the full
and authoritative judicial narrative of the sensitive affair. The
experience was not processed; order was not restored; the catharsis
did not take place.

Underlying the essence of the law is an insoluble tragedy: On the one
hand, the judicial decision can serve as an affirmative and purifying
experience only if it is a result of a process that strictly enforces the
rules of the game, and therefore creates credibility. On the other hand,
as Aristotle explained, because the rules are cut and dried they are
inflexible, and therefore they are liable to create injustices in private
cases. In other words, the law accumulates public credit because it
abides by the formal rules, but it loses credit in private cases that
cannot be solved through the regular framework.

Two opposite examples will clarify the intensity of the tragedy:

King Solomon was asked to divide two babies, a live one and a dead
one, between two women. Formal rules were not applicable to solving
the problem. Solomon decided to operate outside the rules. He
ordered "Cut the living child into two," and thus succeeded in
discovering the truth: The woman who had pity on the baby "is his
mother." The baby was restored to the bosom of his birth mother and
the true story was exposed.

However, what should be done by a flesh-and-blood contemporary
j
udge, who was not appointed by the superior power but by the
Judicial Selection Committee? Justice Dalia Dorner, sitting on a panel
of the District Court that discussed the case of John Demjanjuk, was
convinced that the accused before her was Ivan the Terrible, the
murderer from the extermination camp, and sentenced him to death.
In the petition to the High Court of Justice, new evidence was
p
resented, which aroused doubt regarding the accuracy of the
identification. The verdict was overturned and Demjanjuk was
released.

Justice Dorner thought the new evidence was not true, although there
was no doubt in her mind that according to the rules the evidence was
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submissible. Thus a contradiction arose between the justice's clear
p
ersonal feeling and the outcome required according to the legal
rules. In response to the question as to how she would have behaved
had she sat on the High Court panel, Dorner replied without
hesitation: A private feeling is not a reason for conviction. I would
have released the person whom I believe to be Ivan the Terrible,
because according to the legal rules this terrible outcome is the
required one.

The attorney general and the State Prosecutor's Office cannot operate
outside the rules, like King Solomon. If in their professional
j
udgment, implementing the laws of evidence and the statutes of
limitations give rise to a case in which it will be difficult to convict
the president of the country, they are forced to operate according to
the rules, even if the outcome seems to them and to the public like an
egregious injustice, and even if by doing so they arouse great surprise
about the way they have worked during the past year. If they don't do
that, but rather obey the voice of the masses, they will disarm the law
of its main weapon: authoritativeness and credibility.

Alongside authoritative legal justice, there is also a broad, popular
concept of justice as an intuitive-moral issue. Both types of justice
have complementary advantages and disadvantages: Legal justice
suffers from a lack of flexibility, and therefore it occasionally leaves
us, as in the case of the president, with a sense of injustice and moral
deficiency. On the other hand, intuitive justice suffers from a surfeit
of flexibility. Moral intuition, as we know, is an evasive thing that is
vulnerable to the manipulation of interested parties, passing fashions
and personal cultural preferences. That is why mutual criticism is
important: Formal justice balances the shortcomings of intuitive
j
ustice by handing down binding rules for legal convictions. And the
opposite: Intuitive justice, even if it is not carried out by means of a
j
udicial decision, has its say in the city square.

Those who are disappointed by the silence of the law should recall
that the law is not the only arena for social improvement. It is not
even the primary one. Thousands of men and women uttered a pained
cry for protection against sexual harassment. Today it is clear to
everyone that when a woman does not say "yes" she is shouting, even
by her silence, a thundering "no." Women are no longer objects.
Anyone who treats them like ornaments for his own use is
unquestionably "bad." The narrative about what is permissible and
impermissible in relationships between men and women is repeatedly
told, repeatedly clarified. The courage of the complainants was not
wasted due to the silence of the law; it aroused the voice of the
masses, which is the most solid foundation of all for correcting the
situation.
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