Most objections to the State Department’s recent determination that international law does not prohibit Jews from living in the West Bank were based, Evelyn Gordon notes, on prudential rather than legal grounds. Citing as examples the statements of the presidential candidates Joe Biden and Pete Buttigieg, she points to the dangers of this inability, or unwillingness, to distinguish policy from law:
[T]he concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.
The advantages of this tactic are obvious. Policy questions, by definition, are disputable. . . . But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. . . . [The] problem is this tactic’s enormous cost, which far outweighs any possible benefit: when people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.
Gordon notes a perhaps far more dangerous parallel within Israel’s political system, in the form of the attorney general’s decision to indict Benjamin Netanyahu:
[T]he attorney general’s office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both . . . have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.
[Moreover], Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.
Now, the legal establishment says it has finally found a real crime. But as in the story of the boy who cried wolf, Netanyahu’s supporters no longer believe it.
Read more on Evelyn Gordon: https://evelyncgordon.com/legalizing-politics-and-politicizing-the-law/