Daniel Landes

The High Court victory for Jewish law

Former Chief Justice Esther Hayut, (credit: The Judicial Authority of Israel)
Former Chief Justice Esther Hayut, (credit: The Judicial Authority of Israel)

Israel’s High Court, in striking down the Basic Law amendment abolishing the reasonableness standard in judicial review, certainly scored a tremendous victory for secular democracy. It also acted in the best tradition of Jewish legal wisdom. Israel’s democratic spirit and reality are insured by the notion that laws are enacted only by “smart” politicians hungering for their own and their parties’ power and good fortunes. Laws must also be “reasonable” in that they conform to the best traits of morality and political utility for the nation and its citizens. This ensures fairness and stability, internally and also on the world stage, both politically and economically.

Jewish law in its most classic renditions has three well known pieces: 1) Torah (Biblical) law, as interpreted by the rabbinic sages, as we know from the Talmud; 2) additional Rabbinic law meant to preserve and protect the Torah law; and 3) special new enactments that are for societal welfare. This third category is called a takanah (pl. takanot). While immediately enforceable, it is not inviolate. We have a principle that one only enacts a takanah that the community can uphold: “Gezerah SheHaTzibbur Yachol la’Amod Bah.” Thus, the enacting body must give great thought to whether the community could actually abide by and obey such a law and its ensuing implications.

So what happens if we enact such a takanah and the majority of the community can’t or won’t obey it (“Lo Yachol la’Amod Bah”) and, indeed, “doubts/denies it?” Following Maimonides (Spain, Morocco, Egypt, 1138–1204) in the “Laws of Rebels” 2:6, such a law is weakened and, indeed, is overturned. The enacting authority cannot force it upon the people. Medieval Tosefot (12th through 14th centuries) (see Tractate Avodah Zarah 36a) necessitate a court to overturn it, but uniquely does not require such a court to be “greater in number or wisdom,” as in overturning accepted enactments that have, in practice, been accepted by the overwhelming majority of the community.

In our situation, the “Judicial Coup” law was enacted by the Knesset, and its enactors claim that the Knesset is greater in numbers and greater in wisdom than the Court. This claim doesn’t matter, even if you state it with a straight face – the people denigrated it to the point of consistent mass protests, social rift, denial of military service by elite forces, and even the threat of civil war. According to Maimonides, the “Judicial Coup” law was, indeed, voided by the people; and if you wish to harken to the Tosafot, it is certainly now voided by the High Court, despite the specious claims of right-wing detractors.

Noting that the vast majority of its members agreed (13 to 2) that it has the authority to exert the reasonableness criterion in judgment of the legality of legislation, we must unapologetically and vigorously support that decision. We also hope that this victory struck by the High Court for democracy can start a wider change of thinking and acting by our state.

It is unreasonable to think that a prime minister indicted on a wide array of ethical offenses can run a country and fight a war in its defense; it’s unreasonable to act with hutzpah and hubris, assuming that one can control Hamas; it is unreasonable to give tacit military control to thugs in the West Bank; it is unreasonable to buy off with massive funds diverted from Israel’s Defense the Haredi population, whose supreme leader forbids yeshiva students from praying for and visiting injured soldiers; and the list goes on.

War is always the least reasonable option, although, in our situation, necessary. Nonetheless, Jewish reasonableness insists on achievable goals and a moral conclusion for civilians.

Celebrate the High Court’s Jewish victory for democracy and let this be the time for reasonableness for our country. As hard as it is.

About the Author
Rabbi Daniel Landes is founder and director of Yashrut, building civil discourse through a theology of integrity, justice, and tolerance. Yashrut includes a semikhah initiative as well as programs for rabbinic leaders.
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