All public institutions in a democratic society must take
into consideration that they are creations of the society and
they are, in important ways, in a dialogue with the public.
Even if the public cannot talk back to them for various
reasons, what they do must ultimately be at least
understandable to the broad community.
The recent decision of the High Court seems as if it was
delivered from a vantage point that is so far from the rest
of society that it defies explanation to those who are not in
that same unfathomable place.
The issue of pork sales in the Jewish state is not a new one.
Only a few years after the founding of the state, many cities
passed laws banning the sale of pork within their limits.
After all, pork is repugnant to Jews and even to Muslims.
These laws were challenged in the courts, and eventually the
High Court decided that the right to ban pork sales was not
one of the powers the municipal councils had. Soon after that
the Knesset passed a law empowering the local authorities to
ban pork sales within their jurisdiction, if they so desired.
This became known as the Empowerment Law.
Several cities -- Tiberias, Carmiel, and Beit Shemesh -- had
municipal bylaws based on that Empowerment that forbade
selling pork within the city limits or restricting the sales.
In Beit Shemesh sales of pork were limited to nearby
industrial areas but banned from residential and commercial
areas. Pork manufacturers and pork store owners challenged
these municipal laws.
The High Court decided that a municipality is too large a
unit. The decision as to whether pork may be sold in an area
must be determined by the residents of the immediate area.
Without giving any sort of definition or even guidance as to
what constitutes a neighborhood, the Court said that there
are three types of such areas: neighborhoods in which no one
wants pork, in which its sale may be banned; neighborhoods in
which everyone wants pork, in which its sale may not be
banned; and mixed neighborhoods in which the right of pork
buyers to buy pork must be "protected" and thus pork stores
can be banned from such neighborhoods only if it is easily
available nearby.
Legal scholar Uriel Lin, who served in the Knesset as
Chairman of the Law Committee and is one of the main
supporters of the Basic Laws, said that the Court's action
infringes on the Empowerment Law which predates the Basic
Laws which the Court views as giving them the ability to
invalidate Knesset Laws. When the Basic Laws were passed it
was stipulated that they would not apply to any previous
laws. Lin writes, "I suspect that the High Court did not give
sufficient weight to an important legal stipulation in the
Basic Law of Human Dignity and Freedom, known as the
preservation of laws paragraph. This paragraph was enacted
especially to ensure the status quo on religious matters. . .
. The purpose of this section was to preserve the status quo
in religious matters and to this end it sets clear limits to
the power of the Court to change existing law, or to change
the legal situation in religious matters."
Lin's conclusion is unequivocal, if dry. "The High Court
expanded its power to change a law of the Knesset beyond the
powers that were given to it by the Basic Laws."
That is the legal perspective. But common sense also objects:
Is there a right to eat pork? The Court was concerned with
the interest of the pork eaters, but really the subjects of
the laws are the pork purveyors, and the issue is allowing
them to open a store. It is hard to see how the rights of the
purveyor are determined by the neighborhood.
The real bottom line is the Jewish perspective. The High
Court determined how it thinks that coexistence should be
carried out. However they overturned a political compromise
that respected the sensitivities of Jews over thousands of
years, and was the result of processes that are as democratic
as any could be.
The highhanded ways of the High Court are problematic in
themselves, but the underlying issue is the hundreds of
thousands of non-Jewish immigrants from the Former Soviet
Union. Pronouncing them Jewish will not change their taste
for pork. It is just another aspect of the long
golus.
