#264 / Editorial
Destroying the rule of law, ridding the executive branch of the constraints it imposes: this intent is recognized as an authoritarian power, and its actual implementation marks the point at which a regime ceases to be democratic. In Israel, the judicial reform bill aimed at restricting the Supreme Court’s jurisdiction had sparked massive protests of exceptional duration, dividing the country, before October 7 brought them to a halt. The “Death Penalty for Terrorists Law” adopted by the Knesset on March 30 is part of this ongoing challenge to the rule of law and, in this regard, appears to mark a turning point. While it is likely that the law will be struck down by the Supreme Court, there is no doubt that this outcome will be exploited politically to attack the legitimacy of this institution, by portraying it as acting against the will of the majority and their demand for security. Moreover, the attack on the judiciary’s autonomy is evident in the law’s implications, which go beyond the discriminatory effects stemming from the fact that it is designed to apply to Palestinians in the West Bank, who are tried in military courts, while Israeli citizens residing in the same territory are tried in civil courts. Anne Rethmann, a researcher in the history and theory of human rights at the Hebrew University of Jerusalem, emphasizes how this law undermines judges’ discretion by effectively making the death penalty the “default” sentence, reducing their leeway to the possibility of overriding the “default” in exceptional circumstances. Recalling the history of Israel’s relationship to the death penalty, and notably the Eichmann trial, Anne Rethmann demonstrates the extent to which this constitutes a reversal of legal logic that heralds a structural shift: from law as a binding system toward its subjugation to a power claiming to represent the will of the majority. A structural shift in which appears most clearly, alongside the departure from the principles of the rule of law, the break with the other dimension upon which the Jewish state is founded: ensuring that the minority viewpoint prevails within it—a characteristic of the diasporic people from whom this state is the historical emanation. For K., the two issues are inseparable. And it is by bringing the second issue into full light that we give ourselves the means to restore the first in its most crucial aspect.
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The Law That Devoured Itself
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There is another way for the law to be destroyed, and this one concerns international law. While this destruction also ultimately benefits political actors who care little for human rights and democratic principles, the process that makes it possible does not, however, involve direct challenge: it is first and foremost self-destructive. This occurs when an international legal system, laudable in the intentions that guided its establishment, persists without being able to produce the intended effects. International law then becomes a rhetorical instrument, a symbolic resource that can be mobilized by the very state actors who most routinely violate its principles: it is gradually hollowed out. Simone Rodan-Benzaquen examines this week—in light of the war with Iran, regarding which we have just learned that a ceasefire is in the process of being signed—the structural failure of the international legal system, and wonders under what conditions a more effective architecture could replace it.
Lastly, a lighter piece by Barbara Honigmann that gives us another angle on reflecting on the Jewish condition. Two Jews who knew each other neither from Eve nor from Adam get on a plane and find themselves sitting next to each other. No, this is not the beginning of a Jewish joke, but a personal account by writer Barbara Honigmann. What could two Jews be talking about when they meet for the first time? And what is at stake in the bond that, for the duration of a flight and despite their differences, is forged between them?
