There is a lot of controversy in Israel over the new government’s efforts to reform Israel’s legal system and to cabin the power of the Israeli supreme court. Most of the reporting in this country has reflected the perspective of opponents of the reform efforts, even as it has conveyed little sense of why reforms are being sought. So I call to the attention of interested readers this piece by Israeli legal scholar Yonatan Green, who argues that the proposed reforms are “a measured, justified, and indeed a patently democratic response to decades of illegitimate judicial overreach.” As Green explains:
Over the course of forty years the [Israeli Supreme] Court has arrogated to itself key governing authority and has invented a degree of judicial power unparalleled in any modern democratic society, for the most part with no basis of statutory authorization or public legitimacy, and in many senses entirely incompatible with established notions of accountable government and democratic self-rule. This has been effected by the development of some truly egregious flaws— elements of Israel’s legal system that are indefensible in principle and unsustainable in practice.
Kritocracy, also called kritarchy, was (per Wikipedia) the “system of rule by Biblical judges in ancient Israel, started by Moses according to the Book of Exodus, before the establishment of a united monarchy under Saul.” It would seem that in recent decades kritocracy has returned to Israel. Drawing on a more extensive forthcoming paper by Green, I highlight these extraordinary features of the current legal system in Israel:
1. Israel does not have a written constitution. The Knesset has instead over the decades enacted various statutes that it has denominated “Basic Laws,” with the aspiration that they (subject to possible revision, of course) will one day form the basis for a constitution.
In 1995 the Israeli supreme court essentially invented an Israeli constitution: It asserted that two Basic Laws enacted by the Knesset in 1992 had constitutional stature—meaning that the same Knesset that enacted those laws, by simple majority (and with fewer than half the Knesset members even voting), could not revise or repeal them through ordinary legislation and, further, that subsequent legislation had to comport with the court’s interpretation of those laws. More recently, the supreme court has maintained that even newly enacted Basic Laws are unenforceable if the court deems those laws to violate Israel’s character as a “Jewish and democratic” state or if it judges them to be unworthy of the stature of Basic Laws. In other words, beyond the court’s brazen invention of an Israeli constitution, it has effectively ruled that what are by its own logic constitutional amendments are themselves somehow unconstitutional.
2. The Israeli supreme court has rejected any limits on its ability to decide any legal question. It will entertain, as it pleases, any complaint brought by any person who objects to any government decision of any kind, and it will do so as a court of original jurisdiction (rather than via appellate review).
3. The Israeli supreme court maintains that it has the authority to invalidate any government action that it deems “unreasonable.” It has wielded this supposed authority very broadly, most recently in ordering prime minister Benjamin Netanyahu to fire a key minister.
4. The justices of the Israeli supreme court have an effective veto power over appointment of any new justices. Specifically, there are three justices on the nine-member committee that appoints justices (and other judges), and appointments of justices require a majority of seven votes.
5. The supreme court has vastly expanded the powers of an outside ally, an unelected civil servant referred to in English as the Israeli attorney general. Unlike the attorney general in our country, the Israeli AG is not selected by the head of the government. Instead, the AG is selected via a convoluted committee process over which the prime minister has little influence, and the AG serves for a six-year term. So a new government might acquire or inherit an AG who is very hostile to it.
Even when (as is often the case when the government is conservative) the Israeli AG opposes the government’s policies, the supreme court treats the AG as the exclusive representative of the government in court. The AG may decide to deny the government any representation in court. The AG has complete control over the arguments that will be presented in court, and if the government or a minister wish to present their genuine case before a court, the AG will usually deny them this option. The AG’s opposition to a government’s action typically suffices to have the supreme court deem that action unlawful.
6. Even worse, the AG has broad prosecutorial authority, including over the ill-defined crime of “breach of public trust.” Because the court has claimed broad authority to compel the government to dismiss a minister who has been indicted (despite there being no law to that effect), the AG can easily cause the dismissal of high-ranking members of government and thus has massive leverage to get the government to comply with the AG’s wishes. No wonder that an Israeli political scientist has concluded that the Israeli AG “holds powers unmatched in any democratic state.”
7. It won’t surprise you that the supreme court’s approach to statutory interpretation, adopted by longtime justice Aharon Barak, is equally lawless, earning criticism even from free-form pragmatist Richard Posner. As Posner put it, under Barak’s method of supposed interpretation, “a statute should be interpreted so that it is harmonious with the spirit or values of the legal system as a whole, which as a practical matter means with the judge’s ideal system, since no real legal system has a unitary spirit or common set of values.”