It is clear that the infringement of liberty is examined from the point of view of the individual who has been violated, in the sense that every person is a world in its entirety. However, when we come to examine the legality of a law, the numerical data are also important in terms of the overall cumulative harm of the law. Not harming the liberty and well-being of tens of thousands of people, as harming a few people.
- An examination of the purpose of the law precedes an examination of the means within the framework of the element of proportionality. While the second subtest examines the possibility of taking less harmful measures, the purpose is "binary" – proper or improper, and therefore the two things should not be mixed. One of the main purposes of the Section 30A It is to help curb the phenomenon of infiltration. This is a worthy purpose, which is intended to protect a long list of essential interests of the state and of Israeli society – the preservation of the sovereignty of the state, its character, its national identity, and its socio-cultural character, alongside other aspects such as density, welfare and economy, internal security, and public order. Just as the state was entitled to establish a physical barrier on its borders against those wishing to enter it, so it is entitled to establish a normative barrier as a supplementary means of protection.
Is the deterrent purpose of the law invalid in the first place because it harms freedom? Ordinarily, due to the element of "guilt," we tend to distinguish between punitive deterrence and administrative deterrence. However, on the theoretical level, it can be argued that punitive deterrence also suffers from an infringement of human dignity, since it uses the offender as an instrument for the benefit of the public and not as an independent purpose (see Rinat Sanjaro-Kitay The Arrest: Deprivation of Liberty Prior to Judgment 162-163 (2011)). Moreover, since punishment is individual, in any case in which a defendant who has been convicted is punished and his punishment is added for the purposes of deterring the public (see section 40G ofthe Penal Law, 5737-1977 after Amendment 113), there is also a degree of retroactivity, since the defendant did not know with certainty in advance that a heavier punishment would be imposed on him in order to deter the public. However, deterrence is intended to achieve certain social benefits, and is a legitimate tool for implementing policy in both the penal and administrative spheres. Administrative deterrence is not at all foreign to the legislature, and it is expressed in many ways, inter alia, in financial sanctions in many laws in various fields, such as laws dealing with the environment (see, for example, sections 50-62 of the Clean Air Law, 5768-2008; Sections 58-69 of theLaw for the Prevention of Asbestos Hazards and Harmful Dust, 5771-2011). Deterrence of the public as an end may be morally problematic, where a person who has not sinned pays a price for the act of another but for the sake of being seen and feared, but even then I would be careful not to categorically determine that any administrative deterrence is forbidden, since we are not dealing with absolute rights. In any event, in the present case, the deterrent purpose of section 30A is directed at the infiltrator by force himself, and not at another person who is innocent of the guilt. The illegal entry of an infiltrator into Israel is accompanied by a shade of "guilt," which strengthens the justification for the proportionate use of deterrence. Since the application of section 30A is henceforth, it is not retroactive, and it is directed at the infiltrator by force himself alongside others like him, who are partners in the behavior of the object of deterrence. From this perspective, placing him in the custody of an infiltrator by force who will consciously choose to infiltrate into Israel illegally is very far from "bargaining chips" or administrative detention or residential delimitation, like the examples cited by my colleague Justice Arbel in the Adam case (ibid., paragraphs 86-93). Moreover, as he noted regarding the demarcation of residences:בית המשפט