The Dangers of Overstatement

When fundamental questions about the nature of the state and its ability to protect the security of its citizens hinge on a specific, concrete issue, there is cause for concern. A recent example of this is the debate surrounding the abolition of the reasonableness doctrine. Various schools of thought have emerged in response to this question. Some argue that abolishing or restricting the reasonableness doctrine is relatively minor and insignificant, claiming that the Supreme Court still has sufficient administrative grounds to intervene in governmental decisions even without relying on this specific doctrine. For instance, in the reasonableness ruling, Justice Elron noted, as established in the Rothman case, that the Supreme Court can find alternative grounds to uphold administrative law principles and maintain the rule of law without using the reasonableness doctrine.

On the other hand, the majority opinion, supported by several academics, views the annulment of the reasonableness doctrine as a significant blow to Israel’s core democratic values. Furthermore, some have argued that without the reasonableness doctrine, Israel would lose a crucial element of its system of checks and balances, distancing it significantly from being a liberal democratic state.

This argument is far from self-evident. Unlike many other grounds in administrative law, the use of the reasonableness doctrine is not enshrined in legislation, nor is it widely accepted in most democratic legal systems. Yet, it has become so prevalent in our country that many scholars and legal experts consider it a fundamental aspect of Israel’s democratic governance.

Therefore, the claim that the reasonableness doctrine is the judicial tool without which Israeli democracy would be gravely harmed is a complex one. At first glance, it gives the clear impression of scaremongering, intended to instill fear among the public by presenting information in an exaggerated manner. However, despite this suspicion, there are esteemed legal scholars who have explained that the administrative reliance on this doctrine acts as a “feature” designed to correct a deeper “bug” in the system of checks and balances. For instance, it addresses the lack of regulation regarding the powers of a caretaker government, provides a judicial pathway to disqualify ministers facing criminal charges in the absence of other laws granting judges the authority to intervene in such cases, and more.

Another perspective is to consider that, alongside the harm caused by the weakening of the reasonableness doctrine, other core democratic values have also been undermined. It is possible that greater emphasis on these values could have prevented the need to rely so heavily on the reasonableness doctrine. Alternatively, employing other democratic mechanisms might have led certain Supreme Court justices to reconsider whether to invalidate the Basic Law that abolishes the use of this doctrine. For instance, in the ruling, several justices pointed out procedural flaws that influenced their judgment, the narrow majority by which the Basic Law was passed, and the strong public opposition.

This phenomenon is referred to as “justification,” which stems from the need to explain why the reliance on the reasonableness doctrine is exceptional—perhaps undesirable, but necessary. On the other hand, there is another possibility: the almost complete use of scaremongering. This involves a manipulation that conveys to the public that a fundamental, deep, and core question hinges on a single issue—in this case, one judicial doctrine—making it appear not only necessary but even desirable. A clear example of this can be seen in a Supreme Court ruling published shortly after the decision to invalidate the Basic Law that abolished the use of the reasonableness doctrine. In this ruling, the court addressed the question of removing Mr. Vaknin from his position as Chairman of the Board of Israel Post. Justices Mintz and Kabub ruled in favor of the petition due to significant violations across various legal grounds. Justice Yitzhak Amit concurred, stating that “the decision is blatantly unreasonable” and praised the Supreme Court for overturning the amendment to the Basic Law that nullified the reasonableness doctrine.

A straightforward reading of the ruling reveals that this course of action was unnecessary, and the use of the reasonableness doctrine as a catch-all ground was unwarranted and might even constitute a legal error. Nevertheless, it seems that Justice Amit sought to emphasize the importance of this doctrine, seemingly unconcerned that the same outcome—perhaps even a more precise one—could have been reached without relying on it. Such a case is troubling, perhaps even slightly absurd, and raises questions about the professionalism of the ruling.

As I mentioned, the question of whether the reasonableness doctrine is a proportional tool in Israel’s democratic legal system is a significant one. The outcomes of this question can be rationalized through a common-sense approach, emphasizing that the current situation is not ideal but is a factual reality born of past failures. Alternatively, this issue can be manipulated through scaremongering, which often appears absurd and inaccurate. In contrast, we have recently witnessed the “dependence” of Israel’s security on the strategic question of control over the Philadelphi Corridor. The notion that all of Israel’s security against Hamas depends on staying or leaving the Philadelphi Corridor raises similar concerns about the use of scaremongering. For example, in his speech on September 2, the Prime Minister stated that “the corridor is central and determines our entire future.” As I mentioned earlier, and as others have noted regarding the reasonableness doctrine, the dependence of a deep, fundamental question on a seemingly minor and unconventional issue does not necessarily indicate the use of scaremongering. It can be justified with a strong argument, logically explaining how the situation is not the desired one but has arisen due to historical failures, making it a “problematic” situation created to correct other failures over the years.

Such a case demands accountability, especially from someone who has served as Prime Minister for the majority of the years since 2009. In his recent speech, Benjamin Netanyahu gave the impression that the “dependence” on the Philadelphi Corridor is not a reasoned feature to correct a flaw, but an independent dependence of the state’s security (no less) on staying or leaving the corridor. Such an argument constitutes a cynical manipulation and a painful use of scaremongering, which is fundamentally different from Justice Amit’s use of the doctrine. In this case, it involves a far more serious matter than the judicial intervention in a government decision; it concerns actual human lives. Therefore, while in the case of Justice Amit, one might say the use of the doctrine was irritating, upsetting, or absurd, in this case, it is dangerous and irresponsible.

It is the kind of manipulation that could tear the country apart and endanger the lives of numerous citizens and soldiers held captive by Hamas. As citizens, we must sometimes recognize that scaremongering can be ridiculous, but at other times, as with the Philadelphi Corridor and the prevention of the hostage deal, it is a dangerous decision, with potentially devastating consequences.