“Appoint judges and enforcement officers in all your gates.”
The quote from the one of the greatest writers of all time Anton Chekhov suggested that people needed to be literate enough to read signs on the pubs or books they don’t understand. These days even very literate and educated people do not always read the signs. They opt for expressing their views or rather categorizing their opponents with crisp and strikingly clear buzzwords. These buzzwords work their way into major portals, sometimes being accompanied by hollow yet convincingly sounding slogans. Websites and online editions are a welcoming platform for these talking points, obviating the need for considerate debate or nuanced analysis. Any attempt to inquire into what part of the Judiciary reform has made one believe in the inevitability of Israel soaking into a dictatorship is encountered with mostly superficial statements, lacking any specifics. Unofficial statistics suggest less than 1% of the public involved in this debate around the world has ever tried of reading and understanding the core of the legislation, let alone the three thousand years of Jewish Judiciary.
Debates and disagreements are widely encouraged in Judaism. This is oxygen filling an entire edifice of our three-thousand-year tradition. The Judaic debate and argumentation are fully cognizant of the fact that every single person is unique in the view and comprehension of the world, and in the mission, this person is destined to accomplish. Four sons at the Passover Table are different yet equally important in their voices (or even lack thereof). According to an ancient parable, four species (arba minim) are a cornerstone of the Sukkot Festival, each representing a different human character. Four types are inseparable parts of us on the national, communal, and individual levels. Each one of us has these four species deeply imbued in a way we learn, we speak, we think, maybe at different ratios. Four separate species of the Jewish world, constitute our inseparable oneness. Vigorous debates between the House of Hillel and the House of Shammai rattled Judea in the waning years of the previous millennium. Two fundamental schools of the pre-Talmudic Judaism made everything a fair game of intellectual discourse, with compassioned arguments of Hillel’s side colliding with impeccably logical constructs of the Shammai’s school.
Hundreds of years of Talmudic literature produced an unprecedented and probably the most fundamental structure of arguments, references, and true quantum space for resolutions. This was not about the binary decision-making on a true-false level, this has become a multi-vector space where a few seemingly contradictory statements complement each other and are both parts of an encompassing outcome. The dynamics and comprehension of these ancient debates startlingly resemble the subtleties of the quantum theory and logic that the descendants of the Mishna and Gemara scholars brought into life some 1700 years later.
Even on a national level, we have become a symbiosis of twelve tribes, each one with its own predilections, strengths, and even destiny, while remaining an inalienable part of the People of Israel. On a greater scale two tendencies, Joseph and Judah compete for more than 3000 years of leadership. Joseph represents our externally facing, cosmopolitan shine, assisting others to reach excellence, while Judah is a self-oriented (nationalistic if you will) paradigm that advances our inner well-being and transformation into the light of nations, helping others to shine, through our own elevation. “The scepter shall not depart from Judah …” as our pro father Jakob prophesied in Genesis 49:12. This is one of the most fundamental prophecies, establishing Judah’s dominance in our leadership.
Debate is our foundation, but we need to do this as one people, the way we used to do this for thousands of years addressing every aspect of our life, including the selection of the Judges. Our ancestors used to follow meticulous duties to select the judges for the upper court (Sanhedrin) made up of 71 members (emulating 70 elders and Moses) embodied with the tasks of crowning a kind, authorizing wars, expanding holy sites, and appointing lesser Sanhedrin (lower court). Lesser Sanhedrin was elected for each town with a population of 120 or more of every tribe. 23 judges (the number is based on the exegetical derivation from Numbers (35:24-5) and Exodus (23:2)) presided on criminal matters, capital cases, slander, and other cases. Finally, an ordinary tribunal of three judges arbitrated monetary issues, civil matters, divorce, Haliza (avoiding the duty to marry for the widow and a brother of her deceased husband), conversion, the release of the slaves, absolution of vows, laws of the Sabbatical year, and many other affairs not involving the lesser or upper courts. Judges were required to demonstrate seven attributes – wisdom, humility, the awe of heaven, a loathing for money (even his own), a love for truth, the love of the people at large, and a good reputation. In addition, to be appointed to the greater or lesser Sanhedrin, one had to have achieved distinction in Torah, knowledge of intellectual disciplines such as medicine, mathematics, calendar, astronomy, astrology, and the teachings of idolatry, so that one would know how to judge cases concerning those fields. The requirement for the Judge not to be childless and with the family was associated with the likelihood of being sympathetic and merciful. The process of selection of judges for the lesser court has been debated by the school of thought of Maimonides and Abravanel. Maimonides believed that the high court would send emissaries throughout the entire land of Israel to seek out judges of proper quality. Abravanel suggested that people of each tribe and city would choose judges from among themselves who would sit on their lower courts, including the courts of 23 judges. The fact that Jerusalem was divided between the tribes of Judah and Benjamin had two courts in the Temple area would indirectly attest to Abravanel’s suggestion. This juridical structure lasted for almost two thousand years with Gamaliel VI (400–425) as the Sanhedrin’s last president. With the death of this patriarch, executed by Theodosius II for erecting new synagogues contrary to the imperial decree, the use of the title Nasi of Sanhedrin, as well as Sanhedrin itself has become illegal for thousands of years.
Being dispersed in exile over two thousand years Jewish people have established procedures for local ruling as well as addressing the most complicated questions and disputes to legislatively established authority. Spring Kallah in Babylon discussed and issued ruling on the questions and disputes submitted from Jewish communities around the world. Talmud has become a contract enforcement body of rulings and legal precedents for the Jewish world, while Rabbinic academies and courts resolve legal controversies or litigations. In the 8th-century Fustat or 11th-century Cordova rabbinic courts relied on Talmud as the binding legal code. Rich Responsa libraries demonstrate an incessant flow of juridical inquiries and rulings issued by leading academies (i.e., in Surah or Pumbedita), addressing disputes between Jewish individuals or bodies, as well as with non-Jews. Rabbinic consensus in medieval Europe forbade Jews from suing each other in secular or so-called “gentile” courts. Jews were directed to settle their disputes in their local Jewish court (Beit Din)). The responsa of the unrivaled Barcelonan legal authority Rabbi Solomon ibn Adret (the Rashba, d. 1310) enforced this decree yet there was evidence of deviation from these rules, particularly in Mediterranean communities.
More than a thousand years of advice, disputes, and resolutions have brought about an unprecedentedly rich collection of Judicial rulings, settlements, and precedents. These deliberations involved local Jewish courts as well as leading authorities and rabbinic academies across the world, but Jewish People have never involved a third party even in the most fateful decisions. Whether this was the Roman Empire or the Khalifs of Medieval Spain, Polish Kings, or Russian Tsars, we kept the discussion within the trusted boundaries of our halachic or civic spaces. Involving Roman Empires of these days in our Judicial debate is a breakaway from the very foundation of this entrenched tradition and is in fact an act of intellectual dishonesty. Admittedly this is very easy to bring the attention of the modern-day Roman empire or its followers to chime in, particularly by spreading a slanderous stream of information. But those who attempt on exploiting this seemingly attractive channel are doom to failure. They may reach some spontaneous enthusiasm, the wave of righteous concern but mathematically speaking this is no more than a local extremum, having a noise level impact on a long-term destiny.
After almost two thousand years of exile, in December 1947, Leo Kohn, the secretary of the political department of the Jewish Agency and a known authority in constitutional research, was asked to draft a constitution. In March 1948, the National Committee (Va’ad Leumi) and the Jewish Agency for Israel – the governing Zionist organizations in Palestine and abroad respectively – founded the National Council. The Council consisted of 37 members representing all groups in Palestine – socialists and revisionists, Sephardic and Ashkenazi, religious nationalists and secularists, liberals, and communists. Chaim Weizmann, who would later be Israel’s first President, was elected to lead the Council. The Council chose from among its members an executive body of 13 members, headed by David Ben-Gurion, later Israel’s first Prime Minister. On May 14, 1948, the last remaining British forces in Palestine left the land. The members of the National Council met in Tel Aviv and declared the establishment of the State of Israel. The Council became the Provisional State Council, the highest institution of the new state. The Declaration of Independence, which was approved and signed by the members of the Provisional State Council, asserted that within four months, a Constituent Assembly would be elected, which would write a constitution in which the permanent governing institutions would be determined. Kohn drafted three proposals, however, as of October 1948 the constitution was never completed. A protracted debate ensued between those favoring immediate enactment of a constitution, and those who believed either that there should be no constitution, or at the very least, that the time was not yet ripe. Knesset adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets, and introducing the idea of a constitution “by chapters” instead of one formal written document. The text of this resolution is known as the “Harari Resolution” after its sponsor, MK Yitzhar Harari. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State. The first Knesset was dissolved before its time, without enacting a single chapter of the constitution. The Knessets that followed occasionally used their Constitutive powers to enact laws that establish the foundations of the system of government and the rights of the individual. Eleven Basic Laws have been enacted, dealing with two main issues – governing bodies’ powers and basic human rights.
David Ben-Gurion, the first prime minister of the newly founded State of Israel was the main opponent to the idea of constitution. The Declaration of Independence constituted a fulfillment of the state’s obligation towards the UN. The fledgling state includes only a minority of the Jewish people and is amid a continuous process of change and crystallization. This process of spiritual and state-wise development does not go together with a rigid structure of the constitution.
The Basic Laws had no greater status than ordinary laws. The only laws that could be used to strike down the legislation were those parts of the laws with “entrenchment” clauses. Article 4 of the Basic Law (The Knesset) was the only basis for the review of the legislation. But in the legislation of 1992, two Basic Laws were added to the already existing nine -Freedom of Occupation and Human Dignity and Liberty. A minimalist interpretation would simply mean that two new Basic Laws were added to the list of entrenched laws, triggering the legislation review. However, Chief Justice Aharon Barak championed a pro-active interpretation of the new laws, declaring in the Bank Mizrahi v. The Minister of Finance (1995) the elevation of all Basic Laws over ordinary legislation. This decision somewhat equivalent to the US States’ Marbury v. Madison (1803) put Basic laws on the top and established the practice of Judicial review of statutes. Supreme Court in a unilaterally initiated activism declared the eleven basic laws drafted over some 45 years a de-facto constitution and granted itself the power to strike down new legislation which contradicted any basic law. With this “constitutional revolution,” the court created a constitution, unbeknownst to most Israelis and the world. The ramifications of this decision were in that – Israel’s system of law and basic principles have been settled as a de-facto constitution, with incomplete text and unknown to the public, as well as unfinished the Bill of Rights. The court’s interpretation and application of some of the Basic Laws have alienated Members of Knesset (particularly the Orthodox/ Religious communities) who originally supported the Basic Laws. Many members of the Constitution, Law, and Justice Committee share these criticisms and the Constitution by Broad Consensus Project (started in May 2003 by the Constitution, Law, and Justice Committee of the Knesset) aimed in part at remedying the situation.
20 years later, Judicial Reform initiated by the latest Knesset proposes the following clauses – Judicial Selection, Government Legal Advisors, Constitutional Review, Override Clause, and Standing and Unreasonableness. It is important to highlight that the Standing clause proposed for the first time a legislated authority of the Supreme Court to perform a Constitutional Review of the legislation. If accepted, this Supreme Court capacity to do so, would be affirmed by the law, rather than operating in the realm of de-facto agreement or rather common understanding.
Judicial Selection is a cornerstone of the proposed legislation. The entire political spectrum of the State of Israel agreed long ago that the current process is unsustainable and undemocratic in its core. Today the Judges are appointed by a nine-member committee (two ministers, two Knesset members, two members of the Israel BAR association, and Three Supreme Court Justices). The appointment requires a 7-vote super majority, with the current Supreme Court Justice can veto any nomination, the feat strikingly at odds with the Judicial selection in major democracies across the world. This process has produced the most homogenous Supreme Court (ideologically and ethnically) in total contrast to the society it rules over. The proposed Judicial legislation will give most votes on the selection committee to elected officials from the majority coalition government, emulating the procedure in the leading Western Democracies. This will lead the court to be more diverse, democratic, reflecting the diversity of the people it represents.
At the same time, the Override Clause is counterproductive and has clear flaws, regardless of the legislation it examines. The proposal that Knesset Members could override a ruling that has been stricken down by the Supreme Court, could potentially lead to bad/ unpopular laws being voted by virtue of majority. Emulating Oslo II legislation of 1995, it could be easily exposed how such legislation could succeed even after Supreme Court strikes it down following the constitutional review. It is sufficient if 2-3 renegades from any party decide to switch sides (which has indeed happened in 1995) to override the decision of the Supreme Court. No doubt that the Override clause needs to be either amended or removed in its entirety from the proposed legislation.
Properly fixed and diverse Judicial Selection would have addressed most of the current Judicial issues. Even the “unreasonableness” clause might have been averaged out in a truly heterogenous representation of the Supreme Court. Any claims that Judicial Reform leads to dictatorship and incitement waged by Korach-like populist leaders and former politicians are groundless, intellectually dishonest, and harmful to the well-being of the State of Israel. Before the Judicial self-activism of 1992-1995, Israel was a strong democracy, and there is no risk to dictatorship in aligning the Israeli Legislative Branch with the leading democracies.
My true belief is that Israeli people can resolve the Judicial dispute through careful, nuanced, and comprehensive debate that was our foundation for thousands of years. We have done this without appealing to or involving a third party, regardless of how powerful or interested the third party is. This debate can not only help with properly fixed and diverse Judicial transformation that is absolutely timely but would render our path to the constitution. Whether this is going to be called the constitution and carry a meaning of the constitution is yet to be seen. This may also be tantamount to the legislative embodiment of the Light for Nations the Jewish people are destined to carry for the next thousands of years. Together as one people we can figure this path out through our collective brotherly insight into post-Zionist future.