Are Lawmakers Worthless in the Eyes of the Court?

May 21, 2015

3 min read


If we would like to know why there is a need for a serious reform in the legal system and why legal activism jeopardizes democracy, we should read Attorney General Yehuda Weinstein’s opinion on Aryeh Deri’s appointment as minister. There is a law, the attorney general clarifies. But there is also a judgment, which is entirely different.

The law states that “a person who was convicted of an offense and sentenced to a prison term will not be appointed minister, unless seven years have passed on the day of his appointment since he completed his jail term or since the day of the ruling.” The law is unequivocal.

But then came the judges, and in a series of rulings they created a new judgment, which has no trace in the law. They ruled that there was a need for considerations of “reasonability” and proportionality and that the prime minister had to use discretion, as long as the discretion matched the result they had dictated in advance. And to hell with the clear law and the lawmakers. Why there are judges in Jerusalem, only judges. The law and lawmakers are worthless.

The judicial debate distinguished between the prime minister’s authority and the discretion the prime minister should use. There is an authority, the judges say, and so does AG Weinstein. But the discretion, they add, requires a different decision. I doubt there is another country in the world where such a distinction exists. Why the lawmakers have already exercised discretion.

And then come the honorable judges and hold another discussion, on ethics, and reach the conclusion that there is a need for a new judgment. The considerations as part of the judicial debate are worthy of a high grade. But with all due respect, we are talking about judges here, not about a council of sages.

In jurisprudence, we know about the heated argument between British legal philosopher Herbert Hart and Lord Patrick Devlin. Hart was against enforcing the principles of morality through law. Devlin was in favor. But in Israel there is a new stage: Moral enforcement even without a law.

Legalists in Israel tend to forget that a law, any law, including a basic law, is not a value and is definitely not a supreme value. The law is a compromise. The law is the balance point between different outlooks and parties. And when legalists change the law, in accordance with their moral stance, they crush democracy. There is no law bypassing the High Court. There is a High Court bypassing the law.

Many times, in the Deri affair too, the judges’ stance is preferable. In a public debate, I would choose the High Court party. But with all due respect to the judges and to their moral stances, they have no advantage over the council of doctors or shoemakers. It’s also inappropriate to appoint a person who committed adultery with his friend’s wife as minister. According to Jewish Law, it’s a serious offense. But in a civilized country there is a distinction between morality and law. In theocratic and totalitarian countries there is no such distinction.

Some say we need the court because there are things that are “unimaginable.” That’s an excellent argument, but it deserves a public debate and a legislation initiative. There are many other things that are “unimaginable” according to people with a certain outlook, and they are very “imaginable” according to people with a different outlook. In Plato’s Aristocracy regime, the philosophers call the shots. But we live in a modern democracy, and no one has appointed the judges as the sages of the generation.

Some think that judicial activism is only about rejecting laws. That’s a mistake. Activism is also a spiral interpretation of the law, or creating rules and imposing principles of morality out of nothing, in favor or against the legalists’ opinion. In favor of the Supreme Court, it should be said that there has been a drop in activism. Former Supreme Court president Asher Grunis and current President Miriam Naor are not former presidents Aharon Barak and Dorit Beinisch. But the attorney general’s opinion was based on a legal precedent.

Reprinted with author’s permission from YNet

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