A Review Of Israel’s Judicial “Reasonableness” Decision

The media has told you how to feel about the passage of an Israeli law to remove the Supreme Court’s ability to override the government’s decisions. No outlet has taken the effort to educate its readership about the issue, opting to broadcast emotions.

Left-wing articles describe “controversial changes” by the “far-right government to weaken the judiciary” which “pushes the country toward authoritarianism,” an action which will “transform Israel’s already flawed democracy into a kind of system that no longer deserves the name.” Such sentiments can be found in NPR, Vox and The New York Times.

Right-wing articles noted that Israeli “Prime Minister Benjamin Netanyahu’s government was negotiating compromises” to the “judicial reform bill” and was “defying months of protests,” as it quoted Israeli lawmakers who celebrated that the new law “reducing the reasonableness standard shows governance.” These quotes come from Fox, The Wall Street Journal and Israel’s Arutz Sheva.

Below is an effort to inform people about the law so people can possibly arrive at their own conclusion about it, rather than follow their preferred horde, an action very much encouraged by traditional media, even as it slams social media of being the true instigator of group think in an echo chamber.

The Israeli Judiciary And British “Unreasonableness” Standard

Israel has a set of Basic Laws which includes one establishing the judiciary in 1984, 36 years after the country was founded. The Israeli courts had existed beforehand, with a significant basis of its system stemming from British law, as the region had been administered under the British Mandate from 1924 to 1948. Included within British law was the notion of “unreasonableness” as to whether legislation and regulations were compatible with constitutional rights.

In 1948, when Israel declared itself a new state, England was debating rules regulating children under fifteen years old being allowed to go to the movies on Sunday, with or without parents, an already controversial action as laws at that time generally prohibited the opening of cinemas on what was viewed as a holy day. The case of ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED v. WEDNESBURY CORPORATION considered three main items regarding a court over-ruling a law: 1) was there authority to enact such law, especially for local courts; 2) did the governmental authority consider all relevant matters in arriving at such law; and 3) did the authority “nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”

In 1984, when Israel was passing its judicial basic law, the “Wednesbury unreasonableness” standard was equated with “irrationality,” in which a decision “is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

In other words, the standard set an extremely high bar for overturning a ruling which was properly considered.

Israeli Court’s “Reasonableness Standard”

Israeli courts essentially followed the “extreme unreasonableness” standard of the British system and rarely overturned laws. That began to change in the 1990s under Aharon Barak, who served as a member of the court from 1978 to 1995 and as its president from 1995 to 2006. He took a more activist approach, writing in 2002 that “the judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is “legislating”—engaging in “judicial legislation.” Judicial creativity—judicial legislation—is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity—“judicial lawmaking”—is the task of a supreme court.”

Judges fear that public confidence in the judiciary will be affected if the public discovers the truth…. The public has the right to know that we [judges] make law and how we do it; the public should not be deceived.
Israeli Supreme Court President Aharon Barak, 2002

In a country with no constitution, an activist court had and has watered down the “extreme unreasonableness” standard to a subjective personal “reasonableness approach.” While sometimes the two methods would reach the same conclusion (a politician jailed for tax fraud should not be the Finance Minister), in many other cases, the court could and has overreached and interfered with approved legislation.

the main question is not “if,”-it is not–“do judges of the
supreme court make law”; the main question is “how.”
Israeli Supreme Court President Aharon Barak, 2002

The Controversy On “Reasonableness” Is About Values

The arguments against the Israeli court’s reasonableness standard are not new. Supreme Court Justice Noam Sohlberg wrote a lengthy article a few years ago suggesting that its usage needed moderation. Had some proposal been put forward at that time, there likely would have been no uproar about amending it back to something closer to the British extreme unreasonableness standard.

The current controversy of the Knesset’s Constitution, Law and Justice Committee move to change the situation stems from two main dynamics: Netanyahu being under criminal investigation, and the far-right nature of the today’s parliament.

There is a fear that if Netanyahu weakens the court, he will be able to escape prosecution. He will fortify his position in power with loyalists whom he buys off with feeding their passions, without an external check on his authority.

The anger about Netanyahu is exacerbated by the secular Israeli fear of the religious and nationalist blocks. Barak’s remaking of the Supreme Court was based on his liberal values which he saw in a liberal country. Two decades on, the 25th Knesset includes the Religious Zionist Party which won 14 seats and two other ultra-Orthodox parties which won 18 seats. Secular Israelis fear that the country’s values have turned more conservative, and that same court which Barak crafted to reflect liberal values in society, will now echo conservative values.

Courts are not representative bodies, and it will be a tragedy if they become representative. Courts are reflective bodies; they reflect the basic values of their system.
Israeli Supreme Court President Aharon Barak, 2002

The various protests for and against the law have much less to do with amending the provision which has long been viewed as too far-reaching for a polarized society, and about the changing composition of Israel.

Compromises And Next Steps

The Knesset passed a law on July 24 to get rid of the reasonableness doctrine, as the opposition walked out of the room screaming “shame!” and refused to vote. A natural compromise would have been to go back to the extreme unreasonableness standard which was the Israeli policy pre-Barak.

The Council of Foreign Relations wrote that the Kohelet Policy Forum, which drafted the initial version of the judicial reforms, suggested only using reasonableness for administrative rulings and not government decisions. Former MK Natan Sharansky said “I believe that on the question of human rights, the last word has to be with the judges, and on questions of policy the last word should be with the Knesset.”

The judge learns about the basic values of his or her legal system from the aggregate national experience, from the nature of the political system as a democracy, and from understanding the basic concepts of the nation.
Israeli Supreme Court President Aharon Barak, 2002

Another possible compromise could have been to have any override by the Supreme Court occur only with a super-majority opinion. There are countless other ideas which could be attempted.

A critical component of the reform is yet to come, and considers how Supreme Court judges are elected. The current system essentially allows sitting liberal judges to select their replacements, which is deeply flawed by any reasonableness standard. A credible court should have both liberal and conservative views represented and each should base their opinions on laws, not personal opinions.

Beyond the immediate judicial reforms, the brouhaha should lead all Israelis to conclude that the country must have a constitution. While Israel’s founders may have felt that the nascent state was too fragile to constrain certain actions, 75 years on, the nation is strong militarily and economically, and will be stronger socially if there are laws which represent and protect all its citizens.