Yonatan Green
The Times of Israel, Jan. 8, 2023
“Far from purely partisan or self-serving, genuine criticism of these flaws has been consistent (and consistently growing) since the 1980s and has been forcefully advanced by some of Israel’s leading legal scholars.”
Anyone following the news in Israel can hardly avoid the frenzied – yet predictable – reactions to the recent proposals for judicial and legal reform. Delivering on a key campaign promise, freshly appointed Minister of Justice Yariv Levin has outlined his policy agenda in broad strokes, triggering a deluge of dire warnings from politicians and pundits about the end of Israeli democracy itself. “Hungary is here” and “political coup” are common refrains to be found over the airwaves and in the Twittersphere.
Yet with all the hyperbole and alarmism employed by their opponents, a closer look at the proposed reforms reveals a measured, justified, and indeed a patently democratic response to decades of illegitimate judicial overreach. Regardless of whether one supports these reforms, they are well within the democratic prerogative of an elected government with a popular mandate for constitutional redesign, and hardly warrant a collective panic attack.
The Israeli Supreme Court is widely regarded to be among the world’s most activist. Over the course of forty years the 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.
The most glaring of these flaws are indeed targeted by the new proposals for reform: judicial supremacy over legislation, despite the lack of a written and publicly acknowledged constitution; a vague and lawless “reasonableness” doctrine replacing the executive’s governing prerogative and subjecting accountable government policymaking to unaccountable judicial control; and judicial veto-power over appointments to the bench, systematically abused to exclude jurisprudentially diverse judges from the court. … [To read the full article, click here]
