Haim Shore
Professor Emeritus

Micromanagement by the Unelected Judicial Branch of the Elected Executive Branch

Current attempts at imposing extreme moral standards on how an Israeli prime minister should behave is yet another attempt, in a long series of attempts, by the unelected officials of the judicial branch of Israel to impose moral standards on the elected (though not directly) executive branch. These attempts often reflect the blindness of the judicial branch to the richness and diversity of considerations that the executive branch needs to confront in making decisions, more so in light of current ungovernable Israeli structure of governance. Those considerations may occasionally be in conflict with the sublime, often unrealistic, high moral standards that the judicial branch attempts to impose on the democratically elected executive branch. The result is a repeated display of attempts at micromanaging the latter by the former.

A simple example that comes to mind is “Law of Return”, passed in the Israeli Parliament (the Knesset) in the first years of its existence (July, 1950). This law declares that Israel would grant automatic citizenship to Jews who wish to emigrate to the Jewish state. It obviously discriminates against non-Jews. In that respect, it may be considered immoral. Personally, I doubt that, if passed in the Knesset nowadays, it would have been considered constitutionally permissible by current Israel Supreme Court. Yet, this law is founded on a conflicting consideration of supporting the establishing of a homeland to the Jewish people. That consideration may seem moral to some, who believe that a Jewish state is a moral enterprise. Yet, for universalists and globalists, pursuing extremely high and unrealistic universalistic moral standards, the Law of Return may seem essentially immoral.

Another example is “Breach of Trust”, a well-known term in the Israeli media, a legal term in the name of which scores of suspects have been brought to justice and often also convicted. Unlike the Ten Commandments, as well as other “Do not” commandments in the Torah, where there is clear specification of the action forbidden, “Breach of Trust” is an open-ended law, under which one may assemble nearly any “forbidden scenario” one can possibly conceive of. Examples may be given aplenty, and only for possible backlash from the highly-moral Israeli media I refrain from any here. Yet this amorphic law has been implemented, over and over again, in Israeli courts, reflecting the globalist high and lofty moral standards that the judicial branch, nominated in the first place to ensure observance of “Law and Order”, pursues and attempts to impose on the Israeli public and on its elected individuals in the executive branch.

Let me be clear: In my personal life I adhere meticulously to moral standards, well aware that these form the central pillar on which a society rise and fall (just observe current failing states to appreciate its full impact). Yet, pursuing moral standards, where harm to society or unacceptable harm to its members are irrelevant, is a personal choice and decision, not a public one. Such is, for example, sexual orientation and other inter-personal relationships. The latter are mostly displayed in expressions of speech, but even when they are not there is a delicate line that is often unjustifiably crossed by the judicial system of this country. A case in point is that of Haim Ramon, a central political figure in Israel, whose political career came to an abrupt end due to a legal procedure launched against him after a spur-of-the-moment gesture that he had committed while giving a kiss in public to a consenting woman soldier. Indecent as it may seem, senior professors of law in Israel had agreed that such is not a matter for a legal procedure. Yet the Israeli judicial branch thought otherwise. Micromanagement at its best.

In a democratically elected regime, the role of the judicial branch is, first, to ensure that “Law and Order” are observed (both local law and nationally-accepted international law), and secondly to guarantee the rights of the state’s citizenry (irrespective of any trait that a citizen may carry, be it gender, skin color, faith or else). Ensuring moral standards in the behavior of employees of the executive branch should be implemented only in light of these three objectives: “Ensuring that the law is observed, preserving public order and securing the rights of individuals”. Inasmuch as certain moral standards exceed the boundaries of these objectives, the judicial branch of a democracy is expected to keep its hands off lest it inadvertently assumes the role of God (“…would not the Judge of all the earth do Justice?”, Genesis 18:25). In current Israel, one cannot be certain that this is not what the judicial branch, perhaps unconsciously, attempts to achieve in its unrealistic lofty righteousness (or its desire to attain “feel righteous” status).

How can one resolve this constant friction between the judicial branch and the executive branch, a phenomenon witnessed in most democratic countries? I believe the only way forward is to emulate practices of quality engineering (which is my profession). Let us be more specific. In any industrial complex there is a function denoted quality control. Workers executing this function have one mission only: Examine the final product and decide whether it conforms to specifications. Nothing else. They are not supposed to decide whether the final product satisfies the requirements of the end-user of the product and other relevant “customers” (like government who imposes safety regulations). Determining requirements that the product should satisfy have already been decided earlier, by the engineers who, prior to start of production, have assembled all possible requirements (from various perspectives, not just that of the end-user). They then have translated the requirements into a “Specifications Document”. Quality controllers are not expected to decide whether the final product satisfy requirements, unless those are not satisfied due to non-conformance to any specification expounded in the “Specifications Doc”. Analogously, the legislative branch, the elected branch in a democracy, is expected to assemble requirements of its customers (the electorate, international conventions and agreements, a constitution (if one exists) and the like), and translate them into law (“specifications”). The judicial branch is then expected to examine whether a “product” (namely, a possible violation of “specifications”, brought before it for observation and decision) is indeed so or is it in conformance with “specifications” (current law). They are not to judge whether the “specifications” themselves satisfy requirements of “customers”. Given current governance system in Israel, I am not at all convinced that such a distinction is implemented. One possible reason is that laws, passed in the Knesset, may be too loosely articulated to make that distinction implementable (relate to “breach of trust”, addressed earlier).

Strict adherence to the suggested model, widely prevalent in all quality assurance systems that one may observe in both the manufacturing sector and the service sector, may appreciably reduce or eliminate current frictions between the judicial branch and the legislative and executive branches. And only implementation of this model, I believe, can end current unacceptable micromanagement of the elected executive branch by the non-elected judicial branch.

About the Author
Haim Shore has been a tenured full professor (retired, as of 2015) of the Department of industrial Engineering and Management, Ben-Gurion University of the Negev, Israel. His research concentrates on quality and reliability engineering and on statistical modeling. He owns five academic degrees and has published seven books and scores of articles and book chapters. Professor Shore personal blog: haimshore.wordpress.com
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