Beyond the pale. That was how Justice Miriam Naor described the government's request to postpone the verdict in the case of the Migron outpost, in order to prevent suffering and quarreling between brethren in Israel. But that is not so. [The High Court this week ordered the evacuation of the settlement by August 1.] A court that falls into the trap laid for it by anti-Zionist elements among the Jews, and hostile elements among the Arabs, is the one beyond the pale. It is the demarcation of our geographic, moral and ideological borders by judges that is breaking conventions and causing the brakes to be put on the momentum of the Zionist enterprise.

The decision makers are engulfed in fear of the high court, and they are no longer earmarking lands for national projects - and not only in Judea and Samaria. Even lands belonging to the Jewish National Fund - which are like the "religious endowment" of the Jewish nation (similar to the Arabs' "wakf" lands which are, of course, the Arabs' holy of holies ) - are no longer available to the Zionist enterprise because of the intervention of the high court.

Open gallery view Migron. If the present High Court had been operating in the 1950s, no new developments would have been built. Credit: Emil Salman

Had the High Court of Justice in the 1950s and 1960s looked like the court of today, then hundreds of kibbutzim, moshavim and development towns - in which millions of residents live - would not have been set up. Not Kiryat Shmona and not Beit She'an; not Be'er Sheva and not Ashdod. And also not most of northern Tel Aviv, including the university campus located in the area that was formerly Sheikh Munis. And also not - for the information of the judges in Jerusalem - the national compound in which the magnificent Supreme Court building, the Knesset and the government offices are to be found. All of those were set up on the ruins of the village of Sheikh Badr.

And the official residences in which many of the present and former justices reside in Jerusalem, as do some of the founders of Peace Now, are in the [formerly Arab neighborhoods of] Talbieh and Bak'a. And they were never bought from their Arab owners. The houses of Migron, on the other hand, are located on the slopes of a desolate hill that was never inhabited.

There were two major components at the basis of the feeling of justification in settling on lands that had previously been lived on by Arabs. The first was the Jewish nation's right to sovereignty in its historic homeland - the right that provides the justification for conquering the land and settling it. The second was that anyone who launched a war with the nation that had returned defeated and bleeding to its land, would have to pay a price - as in the Jerusalem neighborhood of Katamon and at Sheikh Munis - for his aggression. And when talking about a struggle between nations, there is no more painful price than the loss of territory. This "primitive" feeling, as deep and elementary as it may be, was indeed the keystone in the Zionist enterprise's feelings of justification.

Even though we were entitled to, we did not act in Judea and Samaria according to those rules. Jordan's King Hussein started a war against us. And one who goes to war and is defeated pays the price of his bellicosity. (For this there are many historical precedents, including Germany's coming to terms with the loss of many of its territories as a result of its aggression in World War Two. ) Moreover, there never was a recognized Jordanian sovereignty over Judea and Samaria. And those who went to settle in these swaths of the homeland were accompanied not only by their historic right and the need to collect a price for the aggression, but also by the feeling of justification that stemmed from precedents - what was right, justified and legal in the Ashkelon of the Philistines was many times more correct in those areas in which the kingdoms of Judea and Israel had existed in the past.

After all, it was in those regions - and not in that of the Philistines along the coast - that we crystallized our faith, our values and our culture, and we came together as a people. But nevertheless, and contrary to the hundreds of precedents that exist inside the state of Israel, there was not one case in Judea and Samaria where a Jewish settlement was set up on the ruins of an Arab settlement or on cultivated land.

Now the high court declares: The values of universal equality, and no longer Jewish and Zionist values, will be the values that guide the Jewish state. Neither the elected Knesset nor the government will decide on, and lead, the basic moves that establish the image and form of the state, but rather the judges. And they will also be the ones to fix - as is proven by the verdict in the Migron case and the decisions fixing the route of the security fence - the geographic borders of the state. And weak governments that succumb to any fashionable passing mood, do not dare to put these people in their place and to demand of them that they concentrate on what they were chosen to do - to judge.

The Land of Israel, S.Y. Agnon wrote, is bought with suffering. And all those for whom the Land of Israel is dear and who accept the suffering with love, will have the privilege of seeing it built, he said. And may it come to pass that you, too, my children and grandchildren in Migron, as well as your friends who accept the suffering with sacrifice and love, will have the privilege of seeing it, soon and in our days, in its full splendor and glory.

Read this article in Hebrew