In democracies, the relationship between the government and the judiciary is one of the most intractable problems only resolved with great difficulty. It is generally accepted that the government is the institution which creates law while the function of the judiciary is to interpret the law. Of course, this description is simplistic, since the judiciary has another task as well, to “balance” government legislation by criticizing its laws.
These two functions are in constant tension with each other. Thinkers often focus on the balance of power dimension to the detriment of the primary purpose of government. But surely the primary goal of government as representative of the people is to instantiate the values of community through legislation it is, therefore, crucial to define the relationship between the body politic and the judiciary so that they complement as well as balance each other. This is essential for a functioning democracy. The problem arises when the public or its representatives feel that their laws are not being properly realized.
The judiciary enforces and shapes the law primarily through interpretation. And herein lies the social and political problem. In its function as the interpreter of the law, is the judiciary bending the law or even creating its own law in contradistinction to the clear will of the legislature. The rules of interpretation [hermeneutics] must be made explicit and and that this gives rise to different schools of thought expressing divergent conceptions of how legal interpretation should be conceived.
It is interesting to take a look at rabbinic literature and how it deals with the problem. The Talmud distinguishes 4 different ways of interpreting the text. For our purposes we will focus on 2 of them-namely “pshat” [פשט] and “drash” [דרש]. The former term “pshat” means “the literal meaning of the text”. The latter term “drash”is an expanded meaning in which the author can inject other dimensions of meaning not bound by the simple reading of the text.
In the above distinction the rabbis were clearly differentiating the “simple” interpreting of the text in a literal manner [pshat ] as opposed to adding meanings that are outside the text, even for religious, moral or mystical purposes. Maintaining this distinction is of critical importance. It demands that one not force an interpretation of law that does violence to the letter of the law.
This does not mean that there is only one literal interpretation of the text. Even here, where there are many literal interpretations possible, the integrity of the written word must be maintained. Of course an attempt to understand the “simple meaning” of a legal or literary text is far from being simple. But one must always be prepared to defend the integrity of “pshat”. This must always remain part of our consciousness despite the fact that the “simple” meaning of a text is far from being a simple matter.
The real issue of judicial reform in Israel should the centred around this central question of legal interpretation. How much latitude does the judiciary have in its interpretation of the law. What counts as a suitable interpretation of the law. At what point is the judiciary properly understanding and applying the law. Is it faithfully reflecting the law as it is written, while retaining its critical powers.