Tangible vs. Reasonable

ON LANGUAGE

By Philologos

Published March 25, 2005, issue of March 25, 2005.
  • Print
  • Share Share

What is the difference between a possibility that is “tangible” and a possibility that is “reasonable”? If Israel’s attorney general, Emmanuel Mazuz has his way, it might be the difference between going and not going to jail for incitement to murder Prime Minister Sharon.

In the wake of the increasingly strident agitation against Sharon that has been emanating from extreme nationalist and religious circles in response to his “Gaza disengagement” plan, Mazuz has proposed changing the wording of Israel’s present anti-incitement law. As it stands, the law forbids any “call to commit an act of violence or terror,” as well as any public expression of “sympathy” or “support” for or “identification” with such a call, provided there is a “tangible possibility’ (efsharut mamashit) of this call’s leading to criminal deeds. Israel’s Ministry of Justice, however, worried about a repetition of the 1995 Rabin assassination, has complained that “tangibility” is too high a bar to obtaining convictions in court. The standard should be lowered, the ministry has proposed, from the “tangible” to the merely “reasonable” (efsharut s’vira) — a proposal that the attorney general has adopted.

Is there really any difference between a “tangible” and a “reasonable” possibility? Respected legal commentator Ze’ev Segal thinks there is. Whereas the first of these, he writes, represents a “sensible balance between the need to defend the freedom of expression and the need to prevent incitement to violence,” the second is “dangerous for Israeli democracy” because it can be used to shut down the ‘free marketplace” of ideas. What Israel needs, Segal says, is not a new law but simply the determination to enforce the old one, which is quite sufficient.

One certainly can agree that the determination to prosecute inciters of intra-Jewish violence has been lacking in Israel until now. Indeed, state prosecutors in Israel have almost never indicted anyone under the existing law, the legal adequacy of which remains unproved. Yet would the law be more easily enforceable if it were changed? Would a judge who felt compelled to acquit a defendant for saying something potentially incendiary about, say, Ariel Sharon under the present law choose to convict under the proposed new law?

Permit me to doubt it. In fact, unlike Segal, I don’t get the distinction between “tangible” and “reasonable” at all. Both of these terms are vague and imprecise and offer much leeway for subjective interpretation. Although both tell you that there is a certain realistic likelihood of A leading to B, neither indicates how great this likelihood is. Neither can be quantified so as to be compared with the other. You can’t say, “If a possibility is ‘tangible,’ there’s a 40% chance of its happening and if it’s ‘reasonable,’ there’s only a 20% chance.” You can’t even argue with someone who says that, as far as he is concerned, a “reasonable” possibility is greater than a “tangible” one.

Let’s take a specific case. Two weeks ago, Rabbi Ovadia Yosef, spiritual head of the religious Shas Party — a man with a long history of putting his foot in his mouth and a shorter one of being angry at Ariel Sharon — said of the prime minister in a talk to his followers, “He should be hit over the head [she’yekabel makka] and die.” Is there a “tangible” possibility that this remark could encourage one of the rabbi’s followers to implement it? And if there isn’t, is there a “reasonable” possibility? These are unanswerable questions, not only because there is no way of pinning down just what “tangible” or “reasonable” means in such a case, but also because even if there were a way, it would still be impossible to calculate the odds of anyone being sufficiently inspired by Yosef’s pronouncement to seek to act on it.

In fact, it seems to me, neither “tangible possibility” nor “reasonable possibility” is a useful concept in this context. Israel’s anti-incitement laws would best be framed differently, not in terms of the effect a given utterance might have but solely in terms of its intent. Was Yosef’s remark a “call to commit an act of violence or terror?” (He himself claimed afterward in his defense that he was invoking God, not human beings, to punish the prime minister.) If it was, it would be justifiable to prosecute him for it regardless of whether or not there was a possibility — “tangible,” “reasonable” or any other — of its being acted on. If it wasn’t, its putative effects should make no difference.

After all, if I were to call Ariel Sharon a tyrant or a fool, someone conceivably might interpret this, too, to mean that the prime minister is a misfortune for his people and needs to be eliminated, yet no democratically formulated system of justice would hold me responsible for that. The minute the legality of our utterances is determined ex post facto — not by what the courts think we meant by them, but by what they think other people might think we meant by them, the “free marketplace” of ideas is indeed in grave danger. The different between “reasonable” and “tangible,” whatever it might be, cannot possibly be great enough to merit being the difference between liberty and imprisonment.

Questions for Philologos can be sent to philologos@forward.com.






Find us on Facebook!
  • Talk about a fashion faux pas. What was Zara thinking with the concentration camp look?
  • “The Black community was resistant to the Jewish community coming into the neighborhood — at first.” Watch this video about how a group of gardeners is rebuilding trust between African-Americans and Jews in Detroit.
  • "I am a Jewish woman married to a non-Jewish man who was raised Catholic, but now considers himself a “common-law Jew.” We are raising our two young children as Jews. My husband's parents are still semi-practicing Catholics. When we go over to either of their homes, they bow their heads, often hold hands, and say grace before meals. This is an especially awkward time for me, as I'm uncomfortable participating in a non-Jewish religious ritual, but don't want his family to think I'm ungrateful. It's becoming especially vexing to me now that my oldest son is 7. What's the best way to handle this situation?" http://jd.fo/b4ucX What would you do?
  • Maybe he was trying to give her a "schtickle of fluoride"...
  • It's all fun, fun, fun, until her dad takes the T-Bird away for Shabbos.
  • "Like many Jewish people around the world, I observed Shabbat this weekend. I didn’t light candles or recite Hebrew prayers; I didn’t eat challah or matzoh ball soup or brisket. I spent my Shabbat marching for justice for Eric Garner of Staten Island, Michael Brown of Ferguson, and all victims of police brutality."
  • Happy #NationalDogDay! To celebrate, here's a little something from our archives:
  • A Jewish couple was attacked on Monday night in New York City's Upper East Side. According to police, the attackers flew Palestinian flags.
  • "If the only thing viewers knew about the Jews was what they saw on The Simpsons they — and we — would be well served." What's your favorite Simpsons' moment?
  • "One uncle of mine said, 'I came to America after World War II and I hitchhiked.' And Robin said, 'I waited until there was a 747 and a kosher meal.'" Watch Billy Crystal's moving tribute to Robin Williams at last night's #Emmys:
  • "Americans are much more focused on the long term and on the end goal which is ending the violence, and peace. It’s a matter of zooming out rather than debating the day to day.”
  • "I feel great sorrow about the fact that you decided to return the honor and recognition that you so greatly deserve." Rivka Ben-Pazi, who got Dutchman Henk Zanoli recognized as a "Righteous Gentile," has written him an open letter.
  • Is there a right way to criticize Israel?
  • From The Daily Show to Lizzy Caplan, here's your Who's Jew guide to the 2014 #Emmys. Who are you rooting for?
  • “People at archives like Yad Vashem used to consider genealogists old ladies in tennis shoes. But they have been impressed with our work on indexing documents. Now they are lining up to work with us." This year's Jewish Genealogical Societies conference took place in Utah. We got a behind-the-scenes look:
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.