The Rule of Law and Political Transformations

In his book “The Prophet,” the poet Jubran Khalil Jubran writes: “You delight in laying down laws, Yet you delight more in breaking them. Like children playing by the ocean who build sand towers with constancy and then destroy them with laughter.”

In the last decade, public tension in the State of Israel has been dealing with the relations between the central government authorities. This tension exists in the light of two polar views regarding the principle of the rule of law; this is the one that demands adherence to the rule of the law, no matter how unjust and unfair it may be, and this is the one that requires the subjection of the positive law to fundamental values and principles that guarantee a degree of fairness and justice to all.

The very existence of said tension does not disturb me at all. In any healthy society, which seeks to eradicate tyranny and governmental corruption, tension will inevitably be between those who trust the legal system and the politicians. This tension is a consequence of the inherent difference in the identity of the interests of each governing authority.

But the scope, extent, and manner of management of said tension are the issues that keep me awake at night, and all these together bode ill for the future of the country. Even when this type of stress is conducted, it should be constructive, not destructive, reasonable, not arbitrary, and proportionate, not extreme.

In recent years, an alarming governmental perception has been developing among us that welcomes the unchaining of the political authorities and that these, precisely because its members are the representatives of the people, so it is argued, are free to enact whatever comes to their mind and to manage the affairs of the state as they please.

This perception is founded on error. The traditional perception according to which a democratic regime is but the regime of an elected majority has died. Today, democratic regimes prioritize setting standards of reasonableness and fairness that limit the power of the majority against governmental tyranny.

The experience of life, especially in the 20th century, has proven many dangers in a formal understanding of a democratic regime. This is especially the case when it is misused by one or another political majority, which strives to preserve its ruling power, and even works to change the rules of the democratic game to preserve this power.

In its essential sense, the rule of law is a sustainable rule only in a robust democracy. In such a regime, clear constitutional criteria must delineate the limits of the authorities’ powers.

When there is a conflict between the individual and the authority, the individual has the power to turn to the court, which has the authority to judge. Doing justice is not a technical and scientific matter because its main act is doing it. This act is not only manifested in the application of existing laws but rather in the interpretation of legislation and in the development of values and fundamental and universal principles that shape the principle of the rule of law in its essential sense.

An in-depth, thorough, and objective examination of all those cases in which the judiciary intervened in the actions of the legislative authority and/or the executive authority teaches, in a way that is not ambiguous, that it is precisely the judiciary, as opposed to what is attributed to it as “judicial activism,” that restrains itself supremely and supremely.

Because of the judicial authority, we, the people, each of us, were granted a backbone of values and fundamental principles. If said otherwise, why are the most basic human rights – such as the right to freedom of expression and the right to equality – not anchored in any basic law?! After all, if it were not for the diligence of the High Court of Justice, we would not have received the constitutional protection we receive today.

To our dismay, at this time, the State of Israel has not yet acquired a written constitution. However, selected chapters of it have seen the light of day within the framework of the Basic Laws, which, as mentioned, are far from being complete and/or perfect. However, establishing a written constitution requires a great deal of self-restraint by anyone who may (or may) be affected by the norms based on it.

The political transformations experienced by the State of Israel in recent years show that this degree of self-restraint is not present. Until then, and until a written constitution is established, the legislative authority would do well to establish Basic-Law: The Legislation that will regulate the relations between the central government authorities and complete the work of establishing the Bill of Rights.

As for the Basic-Law: The Legislation, here is the place to comment that its establishment is an acute matter to dull the tension between the central government authorities. Even according to the most conservative proposals, it was never claimed, in principle, to deny the authority of the High Court of Justice to review the legislative authority and the executive authority. The main point of these proposals was the establishment of specific criteria for exercising the authority for judicial review – criteria that have not disappeared from the court’s eyes to this day and which it is even willing to accept upon itself positively.

The big trouble is that standards of this kind do not exist among the legislative and executive authorities. Everyone will agree that specific criteria are supposed to limit parliamentary power and governmental power, lest the State of Israel finds itself adrift in an ocean of unrestrained legislation and a sea of stormy waves of authority that move up and down without a compass and even in the absence of Shabbos.

The essential part of the Book of Judges revolves around the period when judges were seen as the leaders of the people and not just as lawyers dealing with appointed matters; they were governors and warriors, marching at the spearhead of their people’s armies (verses 9-10 in chapter 3).

Seventy-five years have passed since the establishment of the State of Israel. We do not have the luxury of stirring up the tensions of the past. As the poet Yehuda Amichai said: “A man does not have time. When he loses he seeks, when he finds he forgets, when he forgets he lives, when he loves he begins to forget.”