In this context, it will not be superfluous to note that the aforesaid casts a heavy shadow on the position of the legal counsel in the proceeding that is the subject of our discussion. Indeed, there is no dispute that the legal counsel is entitled, and sometimes obligated, to change his position (see also in this context: High Court of Justice 3406/91 Bavli v. Attorney GeneralIsrSC 45(5) 1, 10-11 (1991); Dotan, at pp. 709-740; Barak-Erez, at pp. 371-406). However, in our case, a change of position that is based to a large extent on the "preferable", "proper" and "desirable" position, while providing an interpretation of the government's decisions that is inexplicable from their language, and while raising compelling reasons for justifying deviating from the firm and unobjectionable position adopted by this Court only a few years ago, raises a significant difficulty.
- The story of the sin of Adam and his wife Eve - the mother of all life, when they ate from the tree of knowledge is known to all. Adam and Eve were forbidden to eat from the tree of knowledge. The serpent tempted Eve to eat from the tree and claimed to her that she had been commanded not to eat from all the trees in the garden. Eve replied that "we will eat of the fruit of the tree of the garden, and of the fruit of the tree that is in the garden, says God, 'You shall not eat of it, and you shall not touch it, lest you die' (Bereishit 3:3). At that time, the midrash relates, "When he saw him[e] passing in front of the tree, she took it and pushed it. He said to her, "You are not dead." As much as you did not die in its vicinity, so you did not die in its containers [just as you did not die by touching, so you did not die by eating]" (Bereishit Rabbah 19:3). Rashi explains that Eve "added to the command [not to eat, also the prohibition to touch] and therefore came to a deficit. It is as it is said (Proverbs 30:6), 'Do not add to his words.'" The question arises, why did Eve fail in adding to the prohibition of eating the fruit of the tree by touching it? After all, the Sages throughout the generations have added and continue to add many prohibitions and fences in order to distance a person from transgression. Chava therefore asked to refrain from eating the fruit, and therefore decreed that she should also touch it. Rabbi Hirsch responds to this (Bereishit chapter 3, verses 2-3):
"Not everything is forbidden to us; Rather, it was God who permitted us the entire tree of the garden, He forbade us this tree. But we must pay attention to one point that our Sages have already commented on. We have already seen that this mitzva includes all the elements that characterize the Torah of Israel in the future, and to which the evil inclination and the nations of the world always respond. It is a "law," it contains forbidden foods, and it was given to Eve as the Oral Law. Chava's answer adds a fourth element, to which one also responds lightly and lightly. This is a commandment of reservation, a rabbinic mitzva. God decreed that one should eat, while the woman mentions the prohibition of touching. This was therefore a commandment of qualification. A person with caution added to the mitzva in order to distance himself from the transgression. Here we see: the reservations and decrees are the natural result of the caution imposed on those who keep the mitzvot. But our Sages add a warning: "Do not make the fence any more so that it does not fall and cut down on the plantings. Thus the Holy One, blessed be He, said on the day you ate of it, and stood up and testified falsely, lest you touch it, lest you die. When he saw that falsehood pushed upon him. He said to her, "How much you have not cried in her relatives, not even in her tanks.")Bereishit Rabba 19:4 and Avot Dr. Natan 1:5). We must not forget the source of the reservations that Jewish prudence imposed on us. Let us always remember that they are not Torah-based. Only as long as we remember this, they will give us a warning and a reservation. If we forget this character, if we also see them as the mouth of the Creator, the transgression will lead us to transgress God's commandments as well. And our Sages fulfilled this warning themselves. Everywhere they testify to the reservations and decrees, which are rabbinic commandments only; They are careful to distinguish a clear distinction between themselves and the mitzvot of the Torah. Adam made a mistake in this; He equates eating with touching, and he gives them both according to the commandments of God" (emphases added).