Efi Nave is a victim just like a girl whose phone was hacked and her nude photos were distributed
Efi Nave is a criminal. Efi Nave is innocent. Is there a logical contradiction between these two statements? No, because in justice, procedure is more important than truth, and until we understand this, we will not stop causing injustice to men, women - and also to Palestinians
The presumption of ownership for houses, pits, ditches, caves, dovecotes, bathhouses, olive presses, irrigated fields, slaves, and anything that produces fruits continuously is three years. What does this sentence tell us? For most - nothing. But this is the opening of a chapter that is perhaps the ideological peak of the Babylonian Talmud, one of the pinnacles of the Jewish legal system, which is one of the highest achievements of legal thought throughout the ages. What makes the central idea presented in it - the concept of presumption - so important?
The presumption establishes a simple principle: a house I've lived in for more than three years is mine - even if I have no proof of it, and if someone challenges this, the burden of proof is on them, and I don't need to prove anything. Does this principle stem from an attempt to uncover the truth about ownership? Certainly not. Three years is an arbitrary measure. It's a social arrangement that opposes the attempt to investigate the "real" truth and decide at any given moment who were the original owners by weighing evidence for both sides. Thus, justice prevents disputes over truth through procedure, which sometimes will reflect the truth and sometimes deviate from it, but will produce a clear social situation where my house cannot be challenged at any given moment. Justice is superior to truth.
A further development of this idea is reflected in the expression derived from the Mishnah: "Two people holding a garment - they shall divide it." As Avigdor Feldman
wrote better than I could, we know that we are necessarily causing injustice to one of the parties - the true owner of the garment - and giving the party who is not really the owner half a garment that isn't theirs. But we are not interested in uncovering the truth in a situation where we have no access to the truth and no evidence, but rather in resolving the dispute. Therefore, justice here necessarily deviates from the truth - and precisely because of this, it is just. This is the fundamental idea of legal systems, but because it is not intuitive, it is violated again and again in demands for "real" justice.
Let's take for example the just solution to the Palestinian conflict and the dispute over the land - they shall divide it. This is a solution that completely ignores the question of the truth of ownership of the land, because justice can only be possible when we give up on weighing evidence and proofs and blood accounts and deciding between narratives and between the beliefs of both sides. And until both sides let go of their claim to the truth - there will be no justice. This is how the legislator also determined in divorces - from the moment the property is in the possession of both parties, we give up on detailed accounting of who earned it and who wasted it and who cheated and who washed dishes - and simply divide it half and half. This is how we prevent disputes and increase peace even if it necessarily deviates from the truth.
The procedure of justice knows that social regulation is more important than any specific case where we didn't uncover the truth. Therefore, if Zadorov was convicted according to the rules of justice in our society, then this is the possible justice, because we will probably never know the truth. Any legal procedure must by nature be somewhat arbitrary and therefore will necessarily cause deviation from the truth in specific cases - criminals will be released and rarely innocents will be imprisoned, and we will never know this because we don't have the key to the truth, only a procedure of justice.
Justice is what distinguishes between lynching - where truth directly translates into punishment without procedure - and a trial. #MeToo is a movement of evidence and truth. It is based on telling a truth that was silenced, but not on justice - because the procedure doesn't exist. Justice, on the other hand, is based on the fact that we can never really know the truth, and what "really happened" between two people, and more than that - that it's possible that they themselves don't know the truth, and each of them truly and sincerely remembers a different truth. The
research on human memory is increasingly
disproving any pretension it has to truth. What are we left with? With procedures of justice. Only the Inquisition always reaches the investigation of truth.
The outrageous whitewashing of phone hacking by a private individual is an exceptional deviation from the procedures of justice worthy of a free society. We wouldn't want to live in a society where anyone can hack into our phone or computer, and if they find conduct there that raises suspicion of criminality, it would be retroactively whitewashed by the police and an investigation would be opened against us. It's also not advisable for us to live in a society where public figures can be blackmailed using evidence obtained through criminal procedure - even if it's true. According to all the evidence known to us, the truth is that Efi Nave is a criminal, and not of the sympathetic kind. But justice is a principle far superior to truth - and Efi Nave is innocent in terms of justice.