What can biblical tradition teach Israel about judicial reform?

Moshe chose capable men out of all Yisrael, and appointed them heads over the people—chiefs of thousands, hundreds, fifties, and tens;and they judged the people at all times: the difficult matters they would bring to Moshe, and all the minor matters they would decide themselves.




(the israel bible)

February 15, 2023

4 min read

Prime Minister Benjamin Netanyahu’s newly formed right-wing coalition is being challenged by mass rallies protesting the proposed judicial reform as being anti-democratic, a biblically-based judicial system may be more democratic and more suited to the Jewish state than many realize.

The judicial reforms have been proposed by Deputy Prime Minister and Minister of Justice Yariv Levin (Likud) and the Chair of the Knesset’s Constitution, Law and Justice Committee, Simcha Rothman (Religious Zionism). While the protests are partisan, dissatisfaction with the judicial system is almost universal. According to the University of Haifa’s index for public sector performance, the public’s level of trust in the Israeli judicial system was at an all-time low in 2018. According to the study, only 18% of the public expressed a high level of trust in the judicial system, while 33% of Israelis expressed low confidence in the system. In 2020, Haaretz reported that from 2017 to 2020, left-wing voter confidence in the judicial system dropped from 44% to 25%.

Perhaps the most important aspect of the proposed reform is to grant the government control over judicial appointments. Under the current system, the procedure for appointing judges is in the hands of the nine-member Judicial Selection Committee, which selects and promotes judges and can also remove them from the bench. Three of the members are Supreme Court judges, two are representatives of the Bar Association, two are Knesset members and two are ministers. Critics of the current system claim the judicial system is guilty of political activism.

The reform proposes that the committee will consist of eleven members, namely the Minister of Justice who will serve as the Committee Chairman, two Ministers designated by the government, the Chairman of the Knesset Constitution, Law and Justice Committee, the Chairman of the Knesset State Control Committee, the Chairman of the Knesset Committee, the President of the Supreme Court, two other judges of the Supreme Court who will be chosen from their fellow judges, and two public representatives chosen by the Minister of Justice, one of them being a lawyer. 

Rothman has claimed this as the flagship aspect of the reform, saying “the core of the reform is that the people choose the judges.”

Under Israel’s current constitutional framework, all legislation, government orders, and administrative actions of state bodies are subject to judicial review by the Supreme Court, which has the power to strike down legislation and reverse executive decisions The proposal seeks to curb the judiciary’s influence over lawmaking and public policy by limiting the Supreme Court’s power to exercise judicial review. Under the reforms, the Knesset can override Supreme Court rulings by a simple majority.

Israel does not have a constitution, relying instead on Basic Laws which have no special status and can be passed in almost exactly the same way as regular legislation. By implementing judicial review, the Supreme Court can unilaterally institute Basic Laws without input from the Knesset. Under the reform, the court would be unable to hear cases in which the Basic Laws are the point of contention.

Opposition leaders and activists accused the government of undermining established norms of checks and balances and attempting to seize absolute power.

Netanyahu has proposed judicial reforms based on Jewish law. In 2014, he spoke at a Likud conference and suggested some reforms to the Basic Law including making the Hebrew calendar, which is based on Jewish law, the official calendar of Israel. He also wanted to establish the Talmud as an official basis for Israeli state law. He also wanted the Basic Law to prevent the creation of a Palestinian state inside the borders of Israel.

Prof. Hillel Weiss,  professor emeritus of literature at Bar Ilan University, has been working to bring judicial reform to Israel based on Biblically mandated principles. Towards that end, he joined the nascent Sanhedrin in 2004, serving as a member and its spokesman. The organization regarded itself as a provisional body awaiting integration into the Israeli government as both a supreme court and an upper house of the Knesset.

Prof. Weiss explained what he proposed as the basis of a Jewish state’s judicial system.

“It is really quite simple and known to anyone who has read the Torah,” Rabbi Weiss said. “A Sanhedrin of 71 elders.”

Rabbi Weiss noted that the major criticism of the proposed judicial reform was that it would endanger democracy. 

“A biblically based judicial system would be the epitome of democratic ideals,” he said, referring to the Book of Exodus.

Moshe chose capable men out of all Yisrael, and appointed them heads over the people—chiefs of thousands, hundreds, fifties, and tens;and they judged the people at all times: the difficult matters they would bring to Moshe, and all the minor matters they would decide themselves. Exodus 18:25

“This describes the court system and the system of governance; both being democratic and both being separate. A citizen will be able to choose for himself the court system he needs and the government he wants,” Rabbi Weiss said. “Even the king is subject to the law and the Sanhedrin but the Sanhedrin does not have the power to act independently.”

“The sons of Jethro sat on Moses’ Sanhedrin,” Prof. Weiss said. “A Sanhedrin of modern Israel would include Arabs, Druze, and non-religious.”

Prof. Weiss explained that Biblically-based does not mean a system of religious laws.

“That is Sharia [Islamic law],” he said. “At the foundation of the Jewish state is a constitution that protects its values, its teachings, its sovereignty, its system of government, and its security and borders,” Prof. Weiss said. “The constitution derives its authority and inspiration, first and foremost, from the worlds of the Torah, the Halacha (Jewish law), and from the Jewish morality that emerges from them. It is the sum total of the Jewish-historical experience.”

Prof. Weiss explained that in many ways, such a system would be indistinguishable from current forms of democratic governments. 

“The current government is based on having a prime minister and the principle of separation of powers,” Prof. Weiss said. “It distinguishes between the legislative, judicial, and executive branches. It fosters a centralized governing authority, subject to constant democratic review.”

“A president, or a king selected by the people, will hold office as long as they are able to serve in it according to their state of health, or as long as they are not replaced by the people, according to law.”

Prof. Weiss emphasized that the Bible also had a separation of powers balancing the king and the Sanhedrin. 

“The Sanhedrin serves the purpose of the High Court,” Pro. Weiss said. “It is an independent institution for jurisprudence and opinions on national matters, which does not depend on the opinion of the government. It is elected by recognized sages without political involvement. The Knesset must consult the High Torah Court on any national or political issue and any decision that involves a vote.”

“One of the functions of the High Court is to settle contradictions between the laws of the state and the laws of Halacha, if there are any.”

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