The High Court’s Involvement in the Appointment of a Prime Minister: The Depth of the Limbo (Column 300)

Who would write such a covenant?

If I understood correctly, the main claim in the article is that the judges, despite their denials, do in fact rule in accordance with their own value system, and therefore in a court that decides value-laden questions there should be representation for the various positions prevalent among the public (assuming the regime is democratic and the people are sovereign).

But if so, I don’t understand why “we are all guilty to one degree or another” and “it takes two to tango,” etc.?

On whom should we place the blame for the Supreme Court justices’ refusal to admit that they rule in accordance with their own values, if not on the justices themselves?

Obviously there is also contributory fault on the part of those who didn’t change the laws governing judicial selection, etc., but that is entirely marginal. (Perhaps it is like blaming Rabbi Elazar ben Azariah because his neighbor’s cow would go out with a strap between its horns.)

In short, you formulated here a reasoned indictment against the court, and I don’t understand why you conclude by saying that we all bear the blame.

One thing Netanyahu and Barak’s heirs through the generations (currently Esther Hayut) agree on is that government is too serious a matter to leave to the decision of the plebeians, and that the only legitimate rule is that of the philosopher-king. Accordingly, the two elites fighting over control of our lives have already despaired of democracy (which is rule by the demos, unless one wishes to stretch and knead language however one likes), and the wailing over the death of democracy is nothing but lamentation for the dead.

Assuming the source of authority is the law (and again, that is the meaning of the term “rule of law” for those who think words have meaning), I prefer the philosopher who received the crown by law (= Netanyahu) to the judicial pirate.

Probably a typo.

What is that consideration? It cannot be opposition to the appointment or support for it.

Good evening, Rabbi Michi. I follow the posts religiously, but I have never commented.
This time I had to: fascinating, enlightening, and very important. In my opinion this post needs to be brought into the public domain. Even if one doesn’t agree with the conclusions (though in my opinion what you wrote is very balanced, even if it appears fanatical), the analysis is brilliant.

Phil, although most of the post was devoted to attacking the Court, toward the end Rabbi Michi also attacks the government for its unchecked control over what happens in the country. And that is something that may be convenient for right-wingers because the right has been in power for many years, but it is distorted, and if we admit the truth, if the left were in power we would be filing petitions to the High Court right and left (in every sense) in order to stand up for our rights. No wonder the left pins its hopes on the High Court—it simply has no alternative. In a properly functioning state the alternative is parliament—that is what Rabbi Michi argues we don’t have. And that is indeed in our hands. Restraining the government vis-à-vis the Knesset.

This was not a practical proposal but a claim that only something like this could fundamentally change the situation. Writing it is the final stage. First there needs to be some schematic agreement, at least about the diagnosis. The first question to address is whether my diagnosis is correct. If people on the right and the left agree on that, then perhaps there will be some point in moving forward.

I also explained why the Court finds itself compelled to act this way. When the Knesset runs wild and doesn’t function, that leads to this sorry state of affairs. That is why I claim everyone is guilty.

And I prefer that we stop giving them the power to do this.

Thank you. As far as I’m concerned there is no copyright. Everyone is welcome to circulate it. I would be very happy.

The main pain in the post comes at the end.

“Two general remarks in conclusion: Israel never had a parliament, and today it also has no laws”

I would define that as “the attack in column 300”…

I’m beginning to be convinced that we are living in a movie ..

Rabbi Michi,
You’re badly disappointing me again, and one can plainly see how political bias is wrecking all your logic. And your jurist friend—exactly the same thing—but from you I expected more.
The jurist represents the petitioners’ position, and they know one hundred percent that they are lying—that is, there is no lacuna in the law at all. The legislature addressed from several angles the possibility now on the table, namely that according to the election results a person against whom an indictment has been filed, and whose case is already being heard in court, will be appointed prime minister—and the law states that in such a case, if the evidentiary hearings have not yet begun, the case will be transferred to the Jerusalem District Court, and if the trial has already begun then it will continue where it started. Sections 1, 2, and 4 in the letter he wrote you are not merely a summary of a legal position—they are lies. Presenting a lie as a legal argument.
Today, at the hearing on the petition, the Supreme Court justices begged the petitioners to produce some shred of a legal argument that would actually allow the justices to intervene (essentially your friend’s section 3)—and again and again they failed to contribute a valid argument. It was very obvious.
Unfortunately, it is evident not only from your friend’s question but also from your answer that the fact that you personally are really not supporters of Netanyahu wrecks your ability to speak substantively about the issue. Sadly, unlike quite a few people I know who never voted for Netanyahu and are firmly rooted on the left (as opposed to people on the right who never voted for Netanyahu), and who say openly that there is absolutely no basis for the petitions and they must be dismissed out of hand, the Basic Laws are clear, they addressed fully and in detail the issue of choosing a person to serve as prime minister while under indictment, and they expressly ruled (and the Knesset discussions from 2001 during the legislation are unequivocal) that it cannot be that the voter’s decision be nullified because a senior official decided to file an indictment, and therefore they said that only in the event of a final judgment—only then is the person regarded as having resigned—that is, only then would we take from him, from the Knesset, and from all of us our discretion—because there is a final conviction for an offense involving moral turpitude.

It seems the snowball is only getting bigger.

*Justice Minister Amir Ohana to the Civil Service Commissioner: the Attorney General cannot arrogate to himself the role of State Attorney in the absence of any legal source for this; in these circumstances, the Acting Director General of the Ministry of Justice will bear managerial responsibility for all the bodies of the Ministry of Justice*

This evening (Sun.) Justice Minister Amir Ohana sent a letter to the Civil Service Commissioner, Prof. Daniel Hershkowitz, in which he denies the Attorney General’s authority to appoint himself acting State Attorney and notes that in light of the circumstances that have arisen, the Acting Director General of the Ministry of Justice, Ms. Sigal Yaakobi, will bear managerial responsibility for all the bodies of the Ministry of Justice.

Below is the content of the letter:

“1. *I deny the claimed authority of the Attorney General (hereinafter: the Attorney), as reflected in the letter he sent today to the management of the prosecution, to appoint himself acting State Attorney,* and to bear ‘overall managerial and professional responsibility for the work of the State Attorney’s Office,’ a letter issued by the Attorney without consulting me and without even informing the undersigned.

2. *The Attorney cannot take for himself the role of State Attorney, in the absence of any legal source for this.*

3. We still live in a state governed by law.

4. *Such a concentration of powers, which has been taken by a person who does not act by force of law (as is well known: there is no law granting and defining the powers of the Attorney General, and not for nothing), is inconsistent with any principle underlying our legal system. It also casts a shadow over the possibility of getting at the truth regarding matters connected with what is known as “the Harpaz affair,” which, according to various reports in the media, including by journalist Ayala Hasson, has recently begun.*

5. Therefore, in these circumstances, the one who will bear managerial responsibility for all the bodies of the Ministry of Justice, including the prosecution (yes, it has not become some external entity belonging to someone), including all budgetary matters, personnel matters, and the various administrative matters, is the Acting Director General of the Ministry of Justice, Ms. Sigal Yaakobi.”

Rabbi Michi did not claim that the law is on the petitioners’ side, but that this can be screwed into the law. That is clearly the petitioners’ own intention—that the High Court justices (as is their way) will juggle the language of the law and produce a ruling in accordance with the left’s wishes. If it is news to you that Supreme Court justices ignore the dry language of the law, go take a look at other charged High Court petitions from recent years. As for the questioner in the email—he is indeed biased. But I only wanted to protest the fact that you criticized Rabbi Michi unjustly. This time especially, it is clear that Rabbi Michi made an effort not to inject his negative attitude toward Netanyahu into what he said. To his credit, he almost completely succeeded

The expression “to screw in” is not precise. Screwing in is because of the wording of the law, but in interpretation there are also considerations of reasonableness. And I actually think that in terms of the law pure and simple (were it not for the policy considerations and various concerns I described), this is the legally required conclusion. But, as stated, I am of course biased, and Tzvika is a pure white-winged angel who has no political positions at all, and even if by chance he does have some, they have no effect whatsoever on his legal position. It really is sad to disappoint angels (“tears of angels..”).
By the way, I interpret the judges’ “begging” differently. They are simply preparing the ground for rejecting the petition (which of course was planned in advance). Their tendency is exactly the opposite of what Tzvika describes, and not because they are right-wing, heaven forbid, but because of what I described. But again, I’m biased, so ignore me. The truest thing is what he writes: that the entire array of Supreme Court judges, the country’s greatest legal minds, could not find legal arguments that suited them, and they are just begging a second-tier lawyer to help them. Really very logical. How did I not think of that?
In any case, my main point here is not a legal discussion but the deep limbo in which the system finds itself, so it is a shame to get into these predictable and banal arguments.

Hello Rabbi,

The judges could simply have rejected the petitions until now on the ground that the case was “non-justiciable.”

The reasons why came up today in the petition.

And then the question of why they postponed requires a different answer.

The rabbi ignores the fact that the state functioned ideally for 50 years, without contempt for the law, until Aharon Barak came and founded all sorts of new legal methods. Your remarks do not address the possibility that the point of deterioration began with Aharon Barak, and accordingly it may be that the judicial system loosened its own restraints.
I stress that it is “possible” that the point of deterioration occurred with Aharon Barak, in order to emphasize that my main claim is not that you are wrong, but that your identification of the root of the problem may not necessarily be correct, and the contempt for laws may have arisen דווקא from the conduct of the judicial system and not from the fact that we have a parliamentary regime.

Professor Shahar Lifshitz proves that there is no way to interpret the law as though there is a lacuna and the court must decide:

Dear friends, until today I had not expressed my view on the matter, but I have read all the briefs of all the parties as well as articles by experts in the field, and my impression is that there is no reasonable legal way, after reading Basic Law: The Government, and certainly after being exposed to the Knesset debates, to grant the petition to disqualify the prime minister because an indictment is pending against him.
I should emphasize that in today’s Haaretz there is a debate between Prof. Barak Medina, who believes that legally the petitions can be granted, and Prof. Mautner, who also believes that legally they can be granted, but in his opinion that would not be advisable for reasons of legitimacy. My post does not deal with politics and legitimacy but only with as professional a legal analysis as possible, and my conclusion is unequivocal: the petitions cannot be granted.
1. Basic Law: The Government explicitly provides that when it comes to a sitting prime minister, the ground for termination of office is a final judgment.
2. Contrary to the lacuna argument regarding the possibility of entrusting a prime minister with the task, the very fact that the Basic Law, and following it the legislation, deal with the manner of conducting the trial of a prime minister against whom an indictment was filed before his term began shows that there is specific legislative attention not only to removal from office but also to the possibility that a prime minister will be appointed when an indictment had already been filed before his appointment.
3. The argument about eligibility is one thing, and discretion is another—and there is a clear distinction from the Pinchasi precedent and from the question of appointing a minister. As far as appointing a minister is concerned, there is no provision in the law that positively addresses the possibility of appointing a minister, or continuing the tenure of a minister, who is under indictment. The rules of eligibility address the fact that until seven years after conviction, the convicted minister cannot be appointed minister. The emphasis in this provision is that even after conviction and serving the sentence there is a cooling-off period, and only after that is there eligibility to serve as a minister. Therefore one cannot infer from this that until conviction the legislature permits a defendant to serve as minister. So there is no positive legislative treatment of the idea that being put on trial does not disqualify a person, but neither is there a negative rule of disqualification on this matter. That is where discretion enters. By contrast, as stated, with respect to a prime minister there is positive treatment of the possibility that a criminal proceeding may coexist with the beginning of a term of office. Therefore, if a court were to determine that a decision to assign a defendant the task of forming a government is unreasonable, then in effect it leaves no situation in which the legislature’s words can be realized—except for a strained interpretation distinguishing between different types of offenses without any basis in the law. This is different, as stated, from the Deri and Pinchasi cases, where the argument is that the mere fact that the law did not bar a defendant from serving does not mean it is impossible to say that the discretion to keep him is invalid. The law indeed does not address many situations, and there discretion enters. But with regard to the prime minister, the law did address it, and therefore even if we call it discretion, the meaning is the complete nullification of the law.
4. All the arguments up to this point are not considerations of legal policy and not balancing exercises, but a straightforward reading of the law. At this point, of course, there also enters the substantive issue of the right to choose, which is the holy of holies of democracy, and it is obvious to everyone that intervention in the identity of the prime minister is the deepest injury possible in the narrow democratic sense, and that it is not similar either to a minister or to a mayor.
5. To all this is added the difficulty of identifying a decision-maker whose discretion can be subjected to reasonableness review. As far as Knesset members who recommend the defendant or ultimately vote for him are concerned, it would be a very dangerous precedent for a court to want to review discretion in the most political decision of Knesset members, and likewise with respect to the political decision of the defendant himself to accept the task.
6. One should also reject arguments heard in the press from people I respect, and also in the petitions, to the effect that the prime minister lied in his campaign and misled people and spoke against the judicial system, and therefore the vote cannot be taken seriously as expressing the will of the people. Unfortunately this has happened and will happen all the time, and heaven help us if the court can intervene in the actions of an elected prime minister on the ground that he did not keep an election promise or misled his voters. See Oslo, withdrawal from the Golan, disengagement, and so on.

Disclosure
After the first elections I was interviewed in TheMarker by Bini Ashkenazi, on Kan by Kalman, by Razi, and by Beni Teitelbaum, and I attacked Netanyahu’s personal conduct as reflected in the undisputed parts of his affairs. I was saddened that he receives such sweeping support in the religious public. I also attacked his attempt to undermine the legitimacy of the judicial system and to initiate structural reforms that he had never initiated before, for personal reasons.
But positions are positions, and legal and intellectual integrity is something else. And in my opinion one cannot honestly, legally, or intellectually claim that there is a reasonable legal basis for a decision granting the petitions against his service. Fortunately, not only my professional analysis but also my professional assessment of the judges leads me to predict that they will reject the petition by a large majority, perhaps even unanimously.

A few more sticks for the attack in column 300.

1. Justice Solberg:
The High Court justices are violating the right to life of Israeli citizens.
https://pbs.twimg.com/media/EWjLEKnXYAELxqz.jpg

2. An excellent column by Greenzaig: a handful of judges who have turned elected officials—and the citizens who elected them—into a joke unable to move a paperclip from one side of the table to the other.
https://www.globes.co.il/news/article.aspx?did=1001326789

3. Amit Segal,
It doesn’t matter what you voted for at the ballot box. Until further notice, a handful of judges aged 60–70, representing a clear political minority, will continue to be the super-government of the State of Israel. https://twitter.com/amit_segal/status/1254488422812704768

4. The thought police threatening to petition the High Court against a professor who dared—to criticize the High Court.
https://twitter.com/aviadglickman/status/1255836061344960512
And here is a reminder from the Einhorn appointment – https://www.makorrishon.co.il/opinion/83583/

Just think: 4,615,135 voters were merely scenery. 120 Knesset members are only extras. And the electoral process is nothing more than therapy to calm the subjects. Democracy in appearance only.
Anyone who thinks Esther Hayut and co. have more moral or democratic legitimacy to decide who will be prime minister than a greengrocer or a taxi driver is someone who despises democracy and popular rule with all his heart. (Adam Gold on Telegram).

I do have political positions (I voted Yamina), but I would be glad if you would show where in this discussion that is reflected in what I wrote. By contrast, your ignoring the presumption of innocence and the explicit wording of the law is illogical, and therefore is interpreted by any fair reader as stemming from political bias, and that is why it is so disappointing.

With God’s help, 10 Iyar 5780

In Basic Law: The Government there is no provision at all that someone against whom an indictment has been filed cannot serve as a minister or form a government, and the reason is simple: a defendant enjoys the ‘presumption of innocence’ so long as his guilt has not been proven in court. The ‘Pinchasi precedent,’ which disqualifies someone against whom an indictment has been filed from serving as a minister, is nonsense.

There are indeed cases in which there is concern that a suspect or defendant will exploit his position to obstruct the legal proceedings, and therefore the court hearing the case has the authority to order the detention of the suspect/defendant or his removal from certain places. On its face, one could apply to the district court before which the trial will be held and argue that his serving in a governmental position may interfere with the trial. If such an argument has substance in the specific case, the court can issue a restraining order and even a detention order.

As for the concern that a criminal suspect will perform his role as a state employee improperly—the law granted the Civil Service Commissioner the authority to suspend a state employee who is a criminal suspect or defendant. The suspended person, who still enjoys the ‘presumption of innocence,’ continues to receive a salary as a state employee, but is prevented from actually performing his job.

Both the criminal court and the Civil Service Commissioner should and can consider each case substantively on its own merits and discuss whether there is indeed a real risk to the judicial process or to the public interest in the continued performance of the suspect’s or defendant’s role. The High Court is not the address.

Regards, S. Tz.

More power to you—words like goads.

Any involvement by High Court justices in ‘judicial legislation,’ whether by inventing statutory provisions and certainly by invalidating laws of the Knesset, directly contradicts the oath of office the judge is required to take ‘to the State of Israel and its laws.’

Since his service as a judge is conditioned on an oath of office ‘to the State of Israel and its laws,’ a public declaration that he does not recognize the authority of the legislative branch and its laws constitutes a cancellation of the judge’s ‘oath of office’ and requires the termination of his tenure.

A judge who has nullified his oath of office to the State of Israel and its laws has thereby submitted his resignation from the judicial office.

Regards, S. Tz.

Congratulations on post number 300. We really, really ask that you keep writing—you have no idea how enormous your influence is. And I truly mean that: you have no idea. There are lots of people who read your words and do not respond or write here, and they really enjoy what you write; many have read your books (again, people who are not involved here), and you have influenced them very positively—not to leave religion, but quite the opposite—to strengthen faith, grounded faith, with a great deal of logic and common sense, a faith that one can connect to comfortably.
I’ll say it again: keep writing, because you are accomplishing a great deal! The people who write here, who participate in your classes, and who watch you on Zoom are only a tiny fraction of those who learn from you. I can tell you about the enormous positive influence you are creating and the breadth of your reach—and believe me—it is great!
So once again—congratulations, and keep making us wiser and keep writing for us in your interesting, fundamental discussions and posts, and also in your wonderful books, which are a gift to the people of Israel!

What is the problem with changing laws by an occasional majority? Or is the law a dead letter? After all, in the end this is the will of the public through its representatives.

The leavened-food High Court case was previously brought before the courts. By chance or not, most of the judges are secular, and so are most of Israel’s residents. No one forces a religious citizen to eat leaven on Passover—not in a hospital, not in the army, not on El Al, and nowhere else. This is blatant religious coercion, though of course not unique to Israel. And what does Justice Hendel say about it? It can be inferred that the religious judge Hendel also accepts and agrees with the result: “I have reviewed the opinions of my colleagues,” he writes, “they followed the accepted path of decision, and I do not have the slightest criticism of that.” See the article in Calcalist
https://www.calcalist.co.il/local/articles/0,7340,L-3814290,00.htmlז

I have no doubt that Aharon Barak has a considerable share in the mess that exists today. But I do not think he is solely responsible.

Interesting.

Thank you. I will try very hard. 🙂

I explained what the problem is. The law becomes a sham. The permanence and inertia of the law are very important. An occasional majority is a very local and temporary will. The public’s will does not change every week, only the interests of its representatives do. These things create a great many problems, and I explained them briefly in the column. No law is actually implemented, and in effect Israel today has no constitutional law in the important matters.

All this is irrelevant to the discussion. I too oppose religious coercion. The distribution of opinions among the judges is quite telling. I read the ruling, and Neil Hendel seemed really angry at the opinion of his colleagues—and that is what jurists who know the formulations better than I do told me.)

Two sentences written by the author of the letter caused me great astonishment:

“I am very sorry, but on questions of personal example, what is required of a leader in terms of integrity, what values of honesty and morality will guide the people, and what compass will go before the camp in a one-time question such as this one, it is impossible to let the public decide.

This is exactly how democracy becomes dictatorship by democratic means. Here lies the limit to the will of the people if democracy wants to defend itself.”

As Karl Popper wrote, the advantage of a democratic regime is that it allows transfer of power without the need for violence. What the bizarre arrogant man who wrote this letter is telling us is that the collection of people serving as Supreme Court judges possesses an essential moral superiority that allows them to nullify the impact of the majority’s vote. In other words, that the slip I cast into the ballot box is, in his view, meaningless. Given this position, I do not see any principled reason (though there may be practical ones) that should cause someone who thinks as I do to refrain from using violence against such an insolent oligarchy. sic semper tyrannis.

As for the belief in the court’s power to prevent deterioration toward dictatorship or toward horrible acts of evil, in my opinion it is very limited. I discussed this at length in my article in Mida
https://mida.org.il/2019/05/23/%d7%a7%d7%99%d7%a6%d7%95%d7%a8-%d7%aa%d7%95%d7%9c%d7%93%d7%95%d7%aa-%d7%a7%d7%a5-%d7%94%d7%93%d7%9e%d7%95%d7%a7%d7%a8%d7%98%d7%99%d7%94/

In particular I will quote several passages:

“To tell the truth, I never fully understood the argument that the court is insurance against dictators. Suppose I am a new Hitler, a shrill populist politician with at my disposal a semi-military organization of several thousand zealous young men armed mainly with cold weapons and ready to go to street brawls and marches on my behalf. What would be easier for me: to use that force to tilt the results of nationwide elections—a complicated and complex task—or to terrify to death, by threats to their lives and the lives of those dear to them, the focused group of High Court justices?

To think that a body such as the High Court can save us from the situation of January 1933, one must believe that the people sitting there are martyrs of democracy who will give their lives and never surrender in any situation. To the best of my knowledge, this is a trait that has never been tested, and there is no reason to believe it exists.

Democracy requires a basic measure of trust in the wisdom and conscience of the average citizen. It must be admitted that such faith may fail the test of reality, but if that is the case then there is no remedy. Whoever looks at his neighbors and his people and sees in their eyes the desire to establish extermination camps has every right to oppose them by any means and to work to overthrow the regime, but he must be aware that the final product of his success will be rule without the consent of the governed.”

I agree in principle, but I think Hitler and his soldiers are not the relevant example. Such forces are not supposed to be stopped by the High Court but by us. Here we are talking about the gradual slippage of an ordinary democratic regime into problematic territory (which is definitely happening today, and on a large scale). In this the court is indeed significant, despite my criticism of it. On our playing field there are no saints (nor any great geniuses). Without the court, in my opinion today there would be a government of 120 Knesset members, the Knesset would be abolished and standing in rows before Bibi and his corruption.
And from this it follows that even with the logic of trusting the voter, one must be a bit careful. He is not very intelligent and not very enlightened. Everyone likes to hate Yitzhak Ben-Aharon for saying that the people need to be replaced, but reality is stronger than ideologies. The people really do sometimes act in ways they themselves later regret. According to the logic of handing everything over to the voter, it would be proper to allow anyone at all to run in elections and let the voter decide. Even a minister and a Knesset member who is accused and even convicted of crimes. Let him run the country from prison. As you will see in the column, I too incline in that direction, and yet I do not rule out checks on the will of our intelligent and enlightened voter. When it comes to a constitution, one cannot tell the voter that his will is unconstitutional. But with an occasional will that leads into very problematic territory, there is room to balance it. Everything cautiously, and still the pure theory does not really work in practice.
Pure capitalism too, in my opinion, is the correct system, and yet in practice it probably needs a few checks. There are utopias that even if one believes in them, in practice it is important to compromise a little.

I claim that broadly speaking democracy is the decision to accept the public’s position with the understanding that the public is what it is; it also contains fools like me who think Bibi is the best alternative under the circumstances, even though his hands are not as clean as Robespierre’s, and in the present case we also have enough votes to cause the situation in the Knesset to lead to a government headed by him.

The fellow who wrote the letter thinks that I (and millions of other voters) am a complete fool or incapable of understanding what morality means and so on, such that the Supreme Court can relate to my choice as society relates to the mentally disabled or to babies. Naturally I have a different view of the matter.

None of this changes the basic argument. I am willing to believe that there are publics insufficiently educated or moral to support democracy. If the majority of the country’s citizens were illiterate, I suppose I would think there is no room for a democratic regime of one vote for each citizen. In fact John Stuart Mill wrote this on one of the first pages of his book On Liberty.

“We may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. … Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement … Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an [enlightened dictator], if they are so fortunate as to find one.”

But it is important to understand what Mill understood and said: that rule over a people not on a sufficient spiritual or moral level cannot be democratic. It is not “defense of democracy” and not “militant democracy”—it is the violent domination of one group of people over another, when the members of the first group view the members of the second group in the same light in which Jefferson Davis and his friends viewed their black slaves: as inferior people better off having decisions about them made by those who know better.

A few things:
1. Even if there is no law that permits a defendant to receive the mandate (though there is. Section 4 of the Government Law refers to such a situation and does not prohibit it), there is no law that forbids it. In the absence of a prohibition on a person, I do not understand all the pilpulim—the legislature clearly thought about such a situation (as implied in the above-mentioned section 4) and did not prohibit it. What was not prohibited is permitted. Why is that so hard?

2. The Deri-Pinchasi precedent is dead, or should have died in a court that had any respect for the language of the law. Beyond the fact that even in its own time it was bizarre pilpul (“there is no law requiring resignation, but in our view it is unreasonable and without any law we decided this way”), the Knesset reenacted Basic Law: The Government, and there the exact same section that applies to the prime minister also applies to a minister—section 23, for your consideration.

3. In whose name exactly, in your opinion, does the High Court have the legitimacy to act outside the law, and at times even invalidate it, in the name of “reasonableness” and its cousin “proportionality”? Why is Esther Hayut’s discretion more reasonable than that of my favorite plumber? What is it, specifically, about legal studies that confers a more correct sense of “proportionality”?
For example, the anti-infiltrator laws were struck down because they were not proportional. Why is detention for, say, a year in a facility not proportional, while 8 months is?

All this is nonsense in whose name the High Court bypasses the people and the law and rules in an absolute dictatorship without any right or authority, and worst of all: without any responsibility for the consequences.

Either way, if the court understands that the wording of the existing law allows the prime minister to continue serving, there is no need to get to the voter’s will in order to understand that it chose the path of folly in complete dishonesty—it is simply against the law.
And if the court sees fit to interpret the wording of the law in such a way that a prime minister cannot continue serving under indictment (which as we know is not correct)—what relevance does the voter’s will have here? If the voter wants to crown a fugitive rapist prime minister, should that therefore change the judges’ decision?

And on the other hand, one can see it as the minority’s rights not to have someone appointed over its head whom it so vehemently opposes. The minority too can say (and at its fringes they indeed do say) that if the majority does such-and-such, then it sees no principled reason to refrain from using violence against such an insolent majority (and in the case of violence it is not at all clear that the majority would win. And in any case such a Pyrrhic victory would be worse for the winner than any compromise). And this is part of its principled agreement to participate in a democratic form of government. When there is a power struggle over the power of the majority, one cannot decide it by means of a majority (the minority simply does not accept that decision).

And with regard to the High Court and the martyrs there is a similar consideration. If the majority is capable of crushing the minority militarily or economically, and is willing to do so, then indeed the High Court will not save us and we should not pin our hopes on lawyers. But what if, for example, the minority is more organized and stronger than the majority, and the reason it does not carry out a violent coup is the democratic agreement? In such a case it can impose limits on the majority by force of the threat. And there is no need to reach an actual military coup; it is enough that the minority shrug off (each person for himself) the civic-moral commitment it feels toward democracy. This does not mean the majority will not do as it pleases; it does mean people may see themselves as exempt from obeying such an act of the majority.

If the ‘Pinchasi precedent,’ which requires the prime minister to dismiss a minister or deputy minister against whom an indictment has been filed, is utterly groundless—then all the more so is the demand that the Knesset or the president not entrust a person under suspicion with forming the government. For here we are speaking not of removal from office but of an appointment in the first place, and here there is real room for the argument: why enter into doubt, when one can find a person whose fitness is not in doubt and entrust him with the task? Surely one would not think of choosing even a “department manager” who is involved in criminal proceedings, all the more so when we are talking about the head of the executive branch.

Regards, S. Tz.

By the way, for the same reason there was room to refrain from entrusting Benny Gantz as well with forming the government, since a criminal investigation is being conducted against the company he headed. The danger of governmental intervention that would disrupt the proceedings is far greater at the investigation stage, which is conducted by the police and the prosecution, bodies organizationally subordinate to the government, than at the trial stage, where the judges have no dependence on any governmental factor.

Paragraph 1, line 3
… entrusting the forming of the government, there is reason, for here we are speaking…

There, line 4
.. for the argument: why enter…

Cardigno,

In my opinion you are conflating two things.

There is no doubt that the majority may err or support acts of evil and depravity and trample various minority groups. A majority vote does not make an act just or proper. So what?

You relate to democracy as a method for arriving at the correct act through the wisdom of crowds, and if so then clearly, in a case where the crowd has erred, the righteous minority has the right and duty to achieve the state of affairs in which its correct opinion is the one that dictates policy. I claim that this is not democracy, that’s all.

In my view, the question “who should rule,” that is, who is the person or group of people whose will becomes law, has no optimal answer and certainly not one that guarantees the right and successful laws. Given this state of affairs, I prefer the democratic method as one that can indeed lead to mistakes but provides mechanisms to correct them while taking people’s wishes into account (of course the preference for democracy needs a fuller theoretical basis, but this is not the place). Indeed it too can lead to terrible errors and shocking acts of villainy, and beyond a certain level of evil or folly citizens, or some group among them, have the moral right to resist the regime by acts of force and violence—but the product of such acts, however just they may be, is not democracy, and that too must be taken into account.

If I, Nadav Shnerb, went three times in one year to the ballot box and put in the slip “Machal headed by Benjamin Netanyahu for prime minister,” then a decision by Esther Hayut and her friends to cancel that possibility is a violent expropriation of my primary civil right: to participate in choosing the government in a way proportional to the weight of my one slip among all the others. The fact that they do this out of contempt for my human level, and feel they are saving me from myself, only makes the act more insulting, patronizing, and forceful.

I agree in principle with Nadav’s words, and they are indeed my words in column 69 (“Is the majority right?”). Moreover, here I go even further and argue that a sufficient number of citizens (even without a majority) is enough to negate the possibility of calling a move unconstitutional. It cannot be that half the people are acting unconstitutionally, since the very validity of a constitution is by nature based on the will of the people.
But one must nevertheless remember that these are theoretical principles, in all directions: 1. Here it is not exactly a majority of the people (but rather the result of a political step that one MK and his satellites chose to take). 2. One must also remember that in practice life is more complicated (we would not accept such reasoning to bring Hitler or Stalin to power, despite the differences of course. Don’t jump on me with Godwin’s law. And yes, Nadav is right that in such a case this is not defense of democracy and the will of the people. Still, that is what I would want them to do). 3. And on the other hand, as I noted, the wording of the law here tends in Bibi’s favor, and we are dealing only with questions of reasonableness and interpretation that the court may give it. In such a case the justification for intervention is much weaker. Bottom line, as I wrote in the column, in this case I agree with Nadav, but I do not accept the extreme and sweeping formulation he gave his remarks.

Nadav, I did not mean to present my position that way. I relate to democracy solely as a contract among the members of society, with no pretensions to hitting upon justice (nor as something value-laden that represents the autonomous right of “the collective”). The decision, if it is given, is not (supposed to be) merely the judges’ opinion, but represents the minority’s red line. Why is the minority willing to undertake the obligation to accept majority rule? Because it understands that overall this is better for it than the alternatives. And therefore there are alternatives that the minority is not willing to bear. If this is also the majority’s red line, then I see no theoretical way out except violence (and in that respect the power is certainly not always in the majority’s hands), or one side’s surrender. Therefore even if the court decides that in its view Netanyahu cannot form a government, there is no paternalism toward the majority here (which I too detest, especially when it is applied to me), but rather a clarification of the minority’s red line. That, in my view, is what is meant by the newly fashionable term “the fundamental principles of the system.” (My personal opinion, by the way—Cardigno son of Eve—is that I would be glad if the Likud party left the stage (taking Netanyahu with it, or not), but that is not a red line for me. More than that, sociologically I belong to one group and identify more or less with another group, and in a case of active conflict, if I saw myself forced to take part in it, I think I would join the sociological group, despite all the ‘ideological’ distance I feel from it.)

In paragraph 1, line 3
… removal from office but rather…

There, line 6
… someone who is in criminal proceedings…

Paragraph 2, line 1
… refrain from entrusting the formation…

As for the claim about the constitution, in my opinion quite the contrary. Precisely in a constitution one certainly can determine that the will of the majority is unconstitutional, because it is supposed to describe the shared agreement of a very specially qualified majority of the citizens, and thereby it sets the framework within which every minority is willing to accept majority rule. Without that, everything rises and falls solely on wallets and weapons. Once there is a constitution describing the boundaries agreed upon by both sides, then no law can be invalidated unless it contradicts the constitution (because within the agreed boundaries, the agreement is that the majority decides).
The collective from column 69 is an ad hoc collective within a body called a “state” (and not, for example, the global collective, where of course there is no democracy. States are not weighted by their number of citizens, and even a “democratic” decision in the General Assembly has no teeth), and the agreement to be included in this state collective has to be given by all its parts.

With God’s help, 10 Iyar 5780

Strangely enough, specifically in Jewish law there may be some support for limiting the legislative authority of the public’s representatives by legal sages, for in the Gemara in Bava Batra it is mentioned that the authority of the townspeople “to regulate their measures” is conditioned on the consent of a ‘great man’ if there is such a person in the city.

That is to say: there is room for ‘judicial review’ of a democratic decision by the public. The question is whether in the present matter this is really substantive review. In any case, the High Court justices can rely on the saying of the Sages: “Let him wear black and wrap himself in black and do what his heart desires” 🙂

Regards, S. Tz.

You are right in the diagnosis. Even so, one may assume that any attempt at a social agreement of any kind will ultimately founder on questions of religion and state. Such voices also motivated the Kinneret Covenant, the Medan-Gavison Covenant, and others. Can one say that anything came out of those covenants? I’m not sure. Perhaps they have some cumulative weight, but it is hard to say they had any significant effect in reality.

1. According to polls it is indeed a majority of the people, who preferred a unity government to the chaos, and to additional elections.

Hello,
In the discussion of government, of democracy, of the will of the people, of selected elite opinions (of course on condition that they are secular and left-wing, with the approval of Haaretz), of fitness, of honesty, and of the ruler’s qualities, etc., etc., it is proper to reflect
on the story of Jephthah the Gileadite and the lessons to be drawn from it.
Remark: given that there is no trust in the court—that is to say, that it is biased, arbitrary, condescending, and does not judge righteous judgment—then one should also be skeptical even when a defendant is found guilty in court; that still does not necessarily override the will of the people. For although the people include plebeians, it cannot be that among more than four million people who voted for Netanyahu and his supporters there are not
a greater number of wise, educated, and more discerning people than the handful of High Court justices who think that wisdom, honesty, morality, reasonableness, and proportionality were granted to them more than to any mortal (even if we do not also take into account their own errors in knowledge and judgment, bias and corruption, in an institution that prides itself on not writing protocols because that is what it wants, that ousts a judge appointed as complaints commissioner just because, that covers for one another and conceals their nakedness, that hides the reasons for setting panel compositions just because, and even issues gag orders right and left—sorry, mainly on the right…).
Given all that, and all the more so when there is not yet even a verdict of guilt, but only the wish of an official with the power to do this, without oversight and without responsibility for his actions if he erred or acted maliciously, and especially since all the information comes from a media system held to lack commitment to truth, one must ask what this self-righteousness is in believing all the filth that in many cases turns out to be lies, in order to besmirch the honor of a great leader, whose abilities are known and acknowledged, and whose deeds, achievements, and actions for the people and the state are evident and recognized throughout the world.

Judges chapter 11
(1) Now Jephthah the Gileadite was a mighty warrior, but he was the son of a harlot; and Gilead begot Jephthah. (2) And Gilead’s wife bore him sons; and when the wife’s sons grew up, they drove Jephthah out and said to him, “You shall not inherit in our father’s house, for you are the son of another woman.” (3) Then Jephthah fled from his brothers and dwelt in the land of Tob; and idle men gathered to Jephthah and went out with him.
(4) And it came to pass after a time that the children of Ammon made war against Israel. (5) And when the children of Ammon made war against Israel, the elders of Gilead went to fetch Jephthah from the land of Tob. (6) And they said to Jephthah, “Come and be our commander, that we may fight with the children of Ammon.” (7) And Jephthah said to the elders of Gilead, “Did you not hate me and drive me out of my father’s house? So why have you come to me now when you are in distress?” (8) And the elders of Gilead said to Jephthah, “That is why we have now turned back to you, so that you may go with us and fight the children of Ammon, and you shall be our head over all the inhabitants of Gilead.”
(9) And Jephthah said to the elders of Gilead, “If you bring me back to fight the children of Ammon, and the Lord delivers them before me, shall I be your head?” (10) And the elders of Gilead said to Jephthah, “The Lord shall be witness between us if we do not do according to your words.” (11) Then Jephthah went with the elders of Gilead, and the people made him head and commander over them; and Jephthah spoke all his words before the Lord in Mizpah.
(12) And Jephthah sent messengers to the king of the children of Ammon, saying, “What have you against me, that you have come to me to fight against my land?” (13) And the king of the children of Ammon said to the messengers of Jephthah, “Because Israel took away my land when they came up from Egypt, from the Arnon to the Jabbok and to the Jordan; now therefore restore those lands peaceably.” (14) And Jephthah again sent messengers to the king of the children of Ammon, (15) and said to him, “Thus says Jephthah: Israel did not take the land of Moab or the land of the children of Ammon. (16) For when they came up from Egypt, Israel went through the wilderness to the Red Sea and came to Kadesh. (17) Then Israel sent messengers to the king of Edom, saying, ‘Please let me pass through your land,’ but the king of Edom would not listen. They also sent to the king of Moab, but he would not consent. So Israel remained in Kadesh. (18) Then they went through the wilderness and went around the land of Edom and the land of Moab, and came by the east side of the land of Moab and camped beyond the Arnon, but they did not enter the territory of Moab, for the Arnon was the border of Moab. (19) Then Israel sent messengers to Sihon king of the Amorites, king of Heshbon, and Israel said to him, ‘Please let us pass through your land to our place.’ (20) But Sihon did not trust Israel to pass through his territory. So Sihon gathered all his people and camped at Jahaz and fought against Israel. (21) And the Lord, the God of Israel, delivered Sihon and all his people into the hand of Israel, and they defeated them. Thus Israel took possession of all the land of the Amorites, the inhabitants of that country. (22) They possessed all the territory of the Amorites, from the Arnon to the Jabbok and from the wilderness to the Jordan. (23) So now the Lord, the God of Israel, has dispossessed the Amorites from before His people Israel, and are you to take possession of it? (24) Will you not possess whatever Chemosh your god gives you to possess? So whatever the Lord our God has dispossessed before us, that we will possess. (25) And now, are you any better than Balak son of Zippor, king of Moab? Did he ever strive with Israel, or did he ever fight against them? (26) While Israel dwelt in Heshbon and its towns, and in Aroer and its towns, and in all the cities that are along the banks of the Arnon, for three hundred years, why did you not recover them during that time? (27) I therefore have not sinned against you, but you are doing me wrong by making war on me. The Lord, the Judge, judge this day between the children of Israel and the children of Ammon.” (28) But the king of the children of Ammon did not listen to the words of Jephthah which he sent him.

As to the riddle of why the High Court did not determine in advance that Bibi was disqualified from running: in my opinion the answer is very simple. If the High Court had disqualified Bibi in advance, then indeed it would have gone through more smoothly than today, as Rabbi Michi wrote. But Rabbi Michi did not continue and write what would have happened next. Another leader would have arisen for the right—the angry right would have poured out in droves to vote, and a strong right-wing government would have arisen with a strong desire for reform in the judicial system to make it balanced. Removing Bibi is an important goal of the judicial system, but certainly not the main one—the rule of the left and their domination is the goal. Contrary to Rabbi Michi’s view that the High Court judges acted out of cowardice, in my opinion they acted in a calculated way according to their own interest. A parity government for a limited period under Bibi, while Bibi will be occupied with his trial, is certainly a very fine achievement for them at present.

Cardigno,

Well, if so then what you are saying is very simple: that appointing Netanyahu prime minister is, in your view, sufficient grounds (morally or otherwise) to blow up the democratic system and try to impose by force the rule of those who think as you do. Fine. I disagree with you, of course, but once one accepts your position, what matters is no longer people’s opinions but only the amount of violence they are willing to use in order to obtain power, and therefore perhaps the weight of my personal opinion is somewhat low.

In any event, unlike the contemptible arrogance of the person whose letter Rabbi Michi quoted, you do not hide behind formulations like “militant democracy” and the rest of that verbiage, but call a child by its name.

Indeed that is what I said—with two and a half reservations: in this concrete case it does not seem to me sufficient grounds, and if the democratic system does blow up I will probably join, sadly and angrily, my sociological camp (perhaps we’ll meet there in the corridor) and not those who think as I do. And the half-reservation: blowing up democracy (= the mutual agreement between the groups in society) does not have to be violent; if the distance is too great, then one needs to look for another idea (just as all the citizens of the world do not gather together into one global democracy).

And just to note: if one side sees something as sufficient grounds for a blow-up, and the other side does not back down, then the other side too sees it as sufficient grounds for a blow-up. There was already a post here about the game of chicken.

As for the convenience stores issue, the court’s ruling is logical. Most residents of Tel Aviv are secular, and it stands to reason that it suits them to shop on Shabbat. The prohibition against opening stores on Shabbat in Tel Aviv is longstanding religious coercion, and Rabbi Michael wrote here only recently that he opposes religious coercion. A significant portion of the problems the High Court is required to deal with are of this type. It is divided more or less according to the balance of forces in Israel. It should also be noted in this regard that in other countries too judges are chosen according to their outlook, and thus one gets outcomes that sometimes do not suit Kalman Liebskind’s taste. It should also be recalled that Likud and the Haredim have ruled Israel for many years, and they could have adjusted the courts to their needs. That did not happen, apparently because the courts suit the Israeli public. The latest event describes the situation well. It is almost clear that the petition will be rejected.

Indeed, I do not see what I wrote as a practical proposal. It is a diagnosis and a claim that a new covenant is needed (not a practical proposal). But it should be remembered that relations between religious and secular Jews are a minor detail. Here we are talking about relations between left and right and other such matters, and about the tie/limbo of our entire governmental system, which threatens the whole enterprise. Religious-secular relations really are not there. So perhaps there is a chance the public will eventually understand that what is required here is a thorough shaking-up.

Wow. Another conspiracy theorist.

Nadav, I do not agree with your claim. Democracy is not majority rule but rule of the people. Usually the mechanism that expresses the will of the people (which is always divided) is the majority. But that is a very primitive expression and not a very efficient or reliable one. For example, when there is a minority for whom something is acute, and a majority for whom it is desirable but not terribly important, it makes sense to decide according to the minority. And note well: I do not mean that the majority ought to give in, but that this is how one should proceed even if the majority does not agree. As stated, the majority is only a sign and not a reason. A weighted will of the public (weighted according to the importance each group assigns to the matter) is no less good an expression, and in my opinion a better one, than primitive unweighted majority.
This of course brings us to the problem of how to measure those weights, and therefore people tend to ignore it. But there may be situations where it is obvious and measurable.
This issue is a whole topic in mathematical economics (Condorcet’s theorem and related matters), where they discuss different methods of representing the will of the group as a collective. It is certainly not necessarily simple counting of feet. This mechanism was adopted because it is the simplest, not because it is the most just.
If I understand correctly, that is what Cardigno is arguing here. And there is a good deal to his point.
Of course one can argue that the majority decides not because it is the ultimate expression of the people’s will but because that is the law. But if we are speaking of what is proper, I think his reasoning carries considerable weight.

Zigi, this already came up here and I already explained that your remarks misunderstand my claim. I did not express a position on what the correct ruling should have been. I pointed out that the judges were divided among themselves precisely according to their religious outlook. Indeed, I oppose coercion.

Sh.Z.B.Y., you are repeating the standard arguments on this issue. The main question here is a different one (the limbo). My claim is that everyone has a share in that.
In any case, I also think the numerical argument is demagogic. By that logic, you can also ask why we should accept the opinion of one physicist rather than that of a million ignoramuses among whom there are surely smart people, and perhaps even some who know physics. Beyond the professional question and the legal knowledge (which has a role here, even if not the main one), the fact that there is a large public and among it there are some wise people says nothing at all about how many such wise people there are within that public. The size of the public is not a sufficient indicator, unless you also tell me what percentage of wise people it contains.
But in fact this is not really a question of wisdom..

“If one side sees something as sufficient grounds for a blow-up, and the other side does not back down, then the other side too sees it as sufficient grounds for a blow-up”

To this blame game one must add the original social contract. The basic idea is that we went to the ballot box on the basis of mutual agreement that whoever had a majority (not necessarily an arithmetic majority but the ability to form a government) would win. Now one side in the wager says that since it did not turn out as it wanted, it is blowing up the game. Clearly in such a case the other side will also blow up, but the question “who started” is very relevant indeed.

I do not quite understand these words. If “rule of the people” is not identical with “rule of the majority,” then it is identical with rule of the minority. How can that be?

There is no doubt that there are situations in which the minority has the moral or practical right to impose its position by force; a majority is not a criterion for justice or honesty or truth. But one cannot call that democracy (again, words are cheap; North Korea too is a people’s democracy).

As for Condorcet’s theorem, Arrow, and so forth: there one is speaking about a situation in which different groups have different preferences and one needs to formulate a system of laws accordingly. That is of course very complicated, and what actually happens in democratic states is that groups with a very strong interest vote according to that interest and then form coalitions, which in any case creates some process of give-and-take. The Haredim, for example, vote according to their special interests, the matters that for them are die-or-die, and therefore their representatives in the Knesset are willing (or at least used to be willing) to forgo expressing an opinion on questions of foreign policy and security and the like. No one claims that this ad hoc coalition mechanism is perfect (I would be happy to see more referenda on specific issues, for example), but I do not understand how such considerations can justify removing the main question—who shall rule the state—from the will of the majority.

Let me clarify again what I wrote.
Democracy is not majority rule but rule of the people. The problem is that the people are divided into different opinions, and therefore one needs a mechanism that will determine what the “people” want. The majority is the criterion chosen in order to determine what the people want, but one must not confuse it with the essence. The essence is the will of the people, not the will of the majority. This is important because there are other mechanisms, at times more reasonable, for determining what the people want. When a minority has something that is very important to it and the majority’s interest is not acute (even by its own lights), one can make a weighted calculation that generates the will of the people. In such a case it is not the numerical majority (the majority of feet) that decides, but the “majority” of interests (the number of people times the intensity of the interest for them). That is no less reasonable, and perhaps more so, than the majority as a rigid criterion.
And that is not at all rule of the minority. It is rule of the majority, but not the majority of feet—rather the majority of interests. And this does not give the minority a veto, but takes account of the intensity of its interest. In certain cases where there is a difference in the intensity of the interest, one indeed gives extra weight to the minority, but that is not minority rule. If, for example, most people in the state prefer a day of rest on Sunday (because that fits what happens in the world), and for religious people it is critically important that it be on Shabbat and not on Sunday, there is logic in following the minority. Note that I claim there is logic in this even if the majority does not agree. For it is not the numerical majority that decides but the majority of interests. That is the distinction I am proposing.
There are many natural concerns about implementation. For example, who will determine the intensity of the interests? Likewise, there is concern about manipulation, since people and groups will present their interest dishonestly as though it is larger and stronger than it really is. I think this could certainly be the role of the court. Of course it too can be biased, but there is no end to that. Hanging everything on the majority is no better solution, because it contains an element of the tyranny of the majority. This is the balance that currently does not really exist, when each side pulls forcefully in its own direction, sometimes the court and sometimes the Knesset. That is what I am weeping over. Formal rules (such as following the majority) cannot really work in the practical world if one relies on them blindly and sweepingly. There must always be a balancing and coordinating mechanism. Like the role of sages with respect to biblical laws.
Let me just say that I am not speaking here about the particular case before us but about the principle suggested by Cardigno, which in my view has great logic to it.

With God’s help, 10 Iyar 5780

To R. M. A. – hello,

“The will of the people” as you define it, as a kind of weighting of the size of the factions against the intensity of each faction’s need, invites a situation in which no person in the nation is satisfied with the “stew.” So who is this “people” whose will is represented by that weighting? Some abstract “Knesset Yisrael”?

In any case, the method you propose is carried out precisely by the multi-party parliamentary system that already exists in Israel. Since there is room also for small groups that have a strong interest in a certain direction, while on the other hand they are a minority, coalitions need to be formed between minority groups and “mainstream” groups, and in the end the desired weighting emerges—the one everyone grumbles about, but which in the end everyone can live with.

Perhaps it would be more accurate to define this not as the “will of the people,” but as the “appeasing of the people.” The ability to live together even with a lot of “gnashing of teeth” may in the long run also lead to a situation in which a real “will” is formed behind which there is broad consensus.

Regards, S. Tz.

Paragraph 2, line 3
… that have an interest…

Paragraph 3, line 3
.. may in the long run lead…

I will ignore the insult (Har HaMor) 🙂
Indeed, that is close to what I am saying.

Paragraph 2, line 3
… that have an interest…

I still do not understand.

There is a difference between the method and the goal. You can argue that the goal of a regime is to maximize the general good (one can argue, but it is an accepted claim, so let us assume it is true). As for the question of how one measures the general good, the answer is certainly not arithmetic, because what is a little good or a little bad for one person may be a great good or a great bad for another. All the points you raised relate to the question of how one evaluates the intensity of the interest and how one measures the general good.

My claim is that even if we agree that maximizing the general good is a worthy goal, the attempt to implement it is hopeless and not worth wasting time on. A single individual may perhaps think about how to maximize his own good (and even in that he usually makes quite a few mistakes), but an entire society? How will you weigh the needs of different people? How will you take future generations into account? How will you decide between competing value systems?

If you give up the idea of rule by the consent of the governed, then there is no problem: the dictator, the supreme council, or the pope can decide what the general good is and impose it on everyone, but then other familiar problems arise (the problem of the corrupt ruler, the opposition of citizens who feel oppressed, etc.). The idea of rule by consent of the governed (what we call democracy) is tightly bound up with giving up the attempt to decide the question of the general good, which is nothing but the futile attempt to create a people or society in which everyone has a uniform moral, aesthetic, and scientific code.

Therefore in a democratic society (again, I am not speaking specifically about ballot slips in the style customary today, but about rule by consent of the governed in its various forms), there is no room whatsoever for a way of thinking that weighs interests against some absolute criterion. Such thinking, by its very nature, breaks democracy. The heightened interest of sub-societies in various issues is supposed to cause them to form coalitions on the basis of give-and-take with other sub-societies in order to achieve their aims. Nothing more.

So what if the majority in the Knesset decides that only redheads pay taxes or that organs for transplant will be taken only from Yemenites? In such a case people would have (in my view) a moral right to use violence to change the social situation, but the result of such action would not be rule by consent of the governed. This is not “defending democracy” but dismantling it in order to achieve goals you consider more important.

Nadav, as I understand it Rabbi Michi is not speaking about an “absolute criterion”; he is speaking about the subjective importance each citizen assigns. Suppose that on a certain issue 60 percent of the citizens want side A with an intensity of 4 units of preference, while 40 percent of the people want side B with an intensity of 7 units of preference. Then the general will reflects 280 for side B versus 240 for side A. So side B is the majority of the people’s will even though it is a numerical minority.

I can understand the claim about who started, but it does not seem reasonable to me (and of course I came to reject it). I argue in terms of utility, not principles. If for one side the identity of the prime minister is not important enough to justify a blow-up, then (as I understand it) one does not blow up.
Is breach of the social contract by one side’s willingness to blow things up important enough to justify a blow-up? It does not seem important enough to me (I know how to look only at outcomes), but to each his own explosions. Clearly there is no point in blowing up before going to the ballot box, but only at the very last and final moment. (Ouch. I have never used the root “explode” so densely.) In the extreme case, if my customer says he will cancel the deal unless I unexpectedly lower the price, and this is still a price at which the deal is worthwhile to me, then I will grumble—and lower it. The fact that he is rude does not carry much weight in my decision (unless there is a reasonable assessment that this will deteriorate into outcomes that overall would be worse than canceling the deal now).
From the rest of the barricades here I will now respectfully climb down.

What Moshe wrote is indeed correct. I do not see why this should be presented in terms of the goal of the state (= the general good) rather than in terms of what the majority is and what the majority wants. This is not a question of good but of what people want. If what they want is what is right and not what is good for them (= their interest), that too is a desire.
And again I say that I am not giving up the consent of the governed; the question is how to define what consent is and who the governed are. You repeatedly assume that the metric is a simple numerical one, and I deny that.
And I absolutely do not agree that such weighting breaks democracy. That of course depends on what democracy is, and I return to my original point.
One can think about it this way: suppose a society was established on the basis of maximum interest according to a weighted calculation such as I proposed. Over time a majority arises that opposes this very thing—namely it insists, regarding a particular decision, on not giving priority to the minority even though the matter is more important to the minority than to it. What do we do in such a case? You assume we follow the majority, and I claim not necessarily at all. There is an infrastructure on the basis of which the society was founded, and that obligates and overrides the passing temporary mood regarding one issue or another. If we assume there is a covenant of weighted summation of interests at the foundation of democratic society, then even if an occasional majority emerges on a certain issue, we do not necessarily follow the majority. That is the meaning of basic laws and binding infrastructures (those that prohibit racists or criminals from running for the Knesset, even if part of the public, and perhaps a majority, wants them). It seems to me that this is roughly Dworkin’s notion of “principles,” and I do not reject it at all. In any case, as a factual matter, if all democratic societies conduct themselves this way, you cannot claim that democracy is what you describe. There is no society in the world that does not impose restrictions on who may run in elections (that he be a citizen, not a criminal, above a certain age, and so on), instead of leaving the matter to the voter’s decision. That means your claim that democracy is majority decision is not accepted. It simply does not work that way in practice, and therefore it is hard for me to accept your factual-conceptual claim about what democracy is. You can perhaps argue that this is how it ought to be, but not that this is how it is. That is simply false.

Regarding the public will:
Daniel Friedman in his book gives an example of how Ayala Procaccia disqualified Shlomi Lahiani from serving as mayor after he had been elected by a large majority, on the grounds that his continued service undermines public trust. And that did not satisfy her until she said that even though he was elected by the public, public trust is not determined by what they actually think, but by what the public’s will ought to be (not in those exact words, but precisely in that sense).

By the way, that is not absurd with regard to a city. It is absurd with regard to a state. A city operates within a state, and even if its residents choose a problematic mayor, the residents of the state have something to say about that, since there are consequences from Bat Yam to us and vice versa.

By the way, someone once told me that in California, the land of unlimited possibilities (the place of Schwarzenegger), one may vote for whomever the public wants. In the gubernatorial election there is a blank ballot and each person writes in ink the candidate of his choice. Thus Mickey Mouse and Donald Duck and others received votes. That is real democracy, without restrictions. What the public wants is what happens (and indeed Arnold Duck was elected governor).

Aharon Barak wanted to promote the invalidation of Basic Laws on the basis of the principles of the Declaration of Independence.
That is, the majority of the people chose representatives, and those representatives went and enacted laws in accordance with the will of the majority of the people.
But because His Honor the judge has a historical document he can use (knowing that no sane country will annul its Declaration of Independence), he takes the whole people as prisoners of war, because that is how it seems right to His Excellency to infer from the Declaration.
The judges are not interested at all in the will of the majority of the public, but in what the public’s will ought to be.

(And by the way, regarding the point that the court did not resort to this before the elections, there is a high probability that if they had said Bibi could not form a government, he still would have run, and assuming he had 61, he would simply have legislated laws as he wished, including an override clause, and would simply have thumbed his nose at the court.)

Itai, your legal understanding is a delight. He would run even though he was disqualified, and then legislate a law retroactively authorizing his candidacy? If so, he ought to be an acrobat in a circus, or Baron Munchausen who ran home to bring a ladder so he could climb out of the pit.
And by the way, your stale claim about Aharon Barak is of course only partial. The Knesset could have legislated override clauses, annulled any clause it wanted from the Declaration of Independence or from Aharon Barak’s laws. But it prefers not to do so and instead to whine. So it deserves it—and so do we all.

The High Court cannot prohibit someone from running in elections; the High Court can prohibit him from being appointed prime minister. And he can legislate the law even if he is not prime minister. So he would have run and gotten 61, and then would have legislated an override clause against the High Court and received the appointment. What is the problem?

And regarding Aharon Barak, the whining is justified with respect to Basic Law: Human Dignity and Liberty—the Knesset can easily repeal that—but with respect to the Declaration of Independence? What sane nation would repeal its Declaration of Independence? And in that regard an override clause would not help. If the foundational principles of the Declaration stand even against Basic Laws, then certainly they stand also against an override clause.

I apologize. Indeed I was mistaken. Haste is from Satan. (Though one must still discuss whether such legislation is technically possible.)
As for the Declaration of Independence, I still think you are wrong. There is no need to repeal the Declaration; one can legislate anything (including an override clause). Here too, the whining stems from the Knesset’s powerlessness (or lack of agreement).

With God’s help, Hod shebeNetzach 5780

There is room to distinguish between a person’s or the public’s ‘general will’ and its will in a specific case, for there may be a clash between the two wills.

There is a general desire that the state be run according to law, and there is a general desire that its leaders, ministers, and advisers be decent and honest people. No one wants a corrupt person to manage the affairs of his state. If a person would not hire as a stockroom worker someone suspected of theft—then all the more so he would be horrified if that dubious person took upon himself the responsibility for matters of life and death involved in leading the state.

The fact that a majority of the public chose a person against whom there are grave suspicions does not express a willingness on the part of the public to abolish the general principle that it is improper for a dubious person to lead the state; rather, this is a specific decision in this particular case—whether because they are convinced that the man is truly not suspect and all the claims against him stem from political persecution, or because they think the alternatives are no less dubious than he is, whether in terms of integrity or in terms of professional competence.

So in principle it would not be absurd for the court to rule against the public’s specific wish regarding a particular person, and to nullify it in favor of the general principled will. This is what a rabbinical court does when it compels a man to give a divorce in a situation where halakhah requires it. The man’s will in this specific case is not to divorce, but his general principled will is to follow the Torah, and the court gives the general will precedence over the particular one.

Regards, S. Tz.

The judicial system has never treated the ‘Declaration of Independence’ as a document with legal force, certainly not as one with constitutional force. It is a festive declaration that had to be drafted within a few days, and none of its signatories thought it had the force of law, certainly not of a constitution.

The body that signed the Declaration of Independence was not even elected in democratic elections. When the Knesset was established, in which the signatories of the Declaration also sat, years of discussions were held on various constitutional proposals, and in the end “it was decided that time would do its work”: that the Knesset would legislate Basic Laws that would eventually join into a constitution. Thus the signatories of the Declaration made their clear view known—that it is not a ‘constitution.’

Regards, S. Tz.

At the end of the day there is a practical question here of how decisions are made. All the ideas of “binding infrastructures” and the like necessarily remove the decision from the public and place it in the hands of a committee with the authority to decide for the public what is good for it even against its opinion. Therefore the sovereign ceases to be the people through their representatives and becomes the collection of committee members. This can be called “rule by the consent of the governed” only in George Orwell’s books.

And yes, I also oppose any restriction on the right to be elected, including racism, opposition to the values of the Declaration of Independence, an offense involving moral turpitude, and all the rest of those maladies. If there is a segment of the public that, unfortunately, is capable of electing despicable people to serve as members of Knesset, we need to deal with that and not sweep it under the rug. If such people have a majority in the public, I do not believe there exists an administrative mechanism that will prevent them from coming to power.

The opposition is of course legitimate, but you wrote that this is not democracy (which I defined as rule of the people and not rule of the majority). Factually it turns out that this is not the accepted definition. In the factual dispute, in my opinion you are mistaken. In the normative dispute (whether it is proper to open the possibility of election to every riffraff) there is room for discussion.

Regarding Rabbi Michi Abraham’s response, one should mention the Talmud’s explanation of the dispute between Beit Shammai and Beit Hillel, because Beit Shammai “were sharper,” whereas Beit Hillel “were more numerous,” and the question is according to whom one decides—according to a majority of opinions or according to a majority of wisdom. Likewise, this problem can arise in courts as well: are the more numerous preferable, or the wiser? This is similar to the tannaitic dispute whether one follows the majority in number or the majority in weight/building—for example, what determines the majority: most of the limbs of a person, or the principal organs [brain, heart, liver]? Or the tannaitic dispute whether a whole object is preferable even if it is small, as opposed to a larger but cut one. It may be that the matter depends on people’s tastes: some prefer the whole, and some prefer abundance.
To be sure, with majority in number or majority in building, the dispute seems more objective and value-laden. But in any case, how can a handful of judges appointed by whoever appoints them—and in many cases this is an interest-driven power game—be given absolute control with no possibility of appeal or higher review of their deeds and decisions? And how can their main reliance be on “reasonableness” [?] and “proportionality” [?], which in other words mean only arbitrariness and intolerable arrogance.

This goes back to Isaiah Berlin’s distinction between negative liberty and positive liberty. Negative liberty is letting me do what I want; positive liberty is forcing on me what I do not want out of the belief that this is what I “really” want (because it is rational, or because it will bring me eternal life, or because it is good for society, from which I too will ultimately benefit).

In my view, “rule of the people” as defined here (or at least its practical implementation) is a form of positive liberty, and in my eyes this is merely a method of lording it over people, in a way that is not only oppressive but also humiliating, since the committee of those who know the mind of the Most High explains to you compassionately that you are simply not on the level to understand the substantive values on which society is based. As Kant said, “A paternalistic government, which treats its subjects as children incapable of making decisions, is the worst form of tyranny.”

Although there I already explained in several columns in the past that the majority is meant to achieve the correct decision, and therefore it makes sense to follow the majority of wisdom. By contrast, in democracy the majority comes to express the public’s will, so wisdom is not a significant factor there. I discussed this in column 66; compare also column 69.

I really do not agree. The “committee” does not know everything and is not lording it over the public. It is simply the body appointed to determine how to weight the opinions and arrive at what the public wants. That is a necessary role in a state that wants to serve the will of the public. You can perhaps argue that they are not carrying out their work faithfully, and therefore are lording it over the public, but the very fact that there is a committee making such determinations is a necessary and unobjectionable need; otherwise how shall we decide what the public really wants (assuming my weighted criterion is indeed correct).

Rabbi Michi
I thought further about your distinction between a weighted majority of will and a numerical majority, and your words contain a very nontrivial assumption. The assumption that our electoral system represents only a numerical majority and not a weighted majority of will is not at all simple. For example, suppose a certain party has a particular view on issues A, B, C. On issues A and B there are other parties with it, and they are a majority; on issue C they are a minority. But issue C is more important to them than issue A. Among the parties that are in the minority on issue A there is a party for whom issue A is very important, and issue C, on which it sides with the majority, is not very important to it. So the two parties make an agreement between them that on the issue less important to each one, it will overturn the bowl. Of course, agreements of this kind take into account not only how many voters there are but also how important the issue is to them. And since governing a state involves masses of issues and masses of opinions (and we also have many parties), it turns out that not only the number of voters matters but also how important things are to them.
Another remark. You wrote: “There are many natural concerns about implementation. For example, who will determine the intensity of the interests. Likewise, there is concern about manipulation, since people and groups will present their interest dishonestly as though it is larger and stronger than it really is. I think this could certainly be the role of the court. Of course it too can be biased, but there is no end to that.”
From your words I understand that even you agree that a court that does not seek to find the intensity of interests but rather “the general good” or “the values of democracy” or any other value is unfit to judge the matter. So you are essentially speaking about a theoretical court, not the one that exists in our state. Our court judges, who seek values of justice and democracy, etc.—then the problem is far more severe than bias: they are not doing at all what they are required to do.
That is in addition to the practical problem Nadav raised, which also seems very problematic to me, especially in light of your words that the judges’ role is to measure the intensity of interests, and if people presented their interest in its true intensity—this is not only a problem of a biased judge. Even an honest judge is required here to know the innermost thoughts of masses of people who are not before him and whom he does not know at all. It seems strange to me that a judge should decide such a matter, about as much as if a judge were required to decide whether light is a particle or a wave.

1. That is exactly what Nadav argued. And I claim that obviously there is not merely a pure numerical majority here, but the correction made through compromises between parties is also insufficient, and there is room for further corrections in order to hit the public’s will more accurately. For example, in the case I gave of setting a day of rest on Sunday or on Shabbat: for the secular majority, Sunday is desirable but not critical, while for the religious minority it is critical. If the coalition did not succeed in reaching common ground on the matter, then there is room for the court to make a weighted summary of the desires and decide that it should be on Shabbat and not on Sunday.
2. That is exactly what I wrote in the column, no? Though your formulation is extreme. There are deviations, but it is not true that the court does not do its job at all. But the discussion with Nadav is principled and not necessarily about the High Court, regarding which we actually agree.

The question of probing the innermost heart always exists. But one does not avoid the grocery store because of concerns. There are situations in which it is fairly easy to determine this. An honest judge who sees that it is genuinely difficult to determine can decide according to rules of doubt (that is, in cases of doubt to follow the numerical majority and not intervene in its decision).

“But it is not true that the court does not do its job at all”
Have you ever heard a High Court judge say that he acts in order to find the people’s weighted will according to the intensity of interest?!

Quite a few times. And even if they don’t say it in that language, when they speak about proportionality, etc., sometimes that is what they mean. Dworkin’s principles are often mentioned by jurists, and in essence they express principles that represent the norms in society.

Nadav, for your consideration: a few examples of imposing “fundamental principles” over the will of the majority:
https://www.globes.co.il/news/article.aspx?did=1001290452

I never claimed that Israel’s judges invented that form of judicial activism in which a closed group of self-appointed knowers decides on a set of fundamental principles that precede legislation, whether in the form of an arbitrary decision or in the form of interpretive abuse of existing legislation. It is the nature of some human beings to crave power and control, and when some sort of governing vacuum exists, judicial authorities naturally try to burst into it. That is true in Israel just as it is elsewhere in the world.

To the best of my noncomprehensive knowledge, the method was invented by Earl Warren, a justice of the U.S. Supreme Court in the 1950s and 1960s. Since then there has been plenty of time for various power-hungry schemers in other countries to copy the idea, and the result is apparently this list in Globes.

[Since we are already speaking about elections in California, before his appointment as a justice the man was governor of California, and by means of some trick was chosen simultaneously in the primaries as both the Democratic and the Republican candidate, and thus ran against himself and won.]

Nadav
The whole point is that the modern concept of democracy also includes the obligation to protect basic human rights and to provide equality in a certain sense to all citizens, and therefore when there is majority tyranny and basic rights are denied to a minority, one can argue that one democratic principle outweighs another (human/individual rights versus majority rule).
That is of course not the original meaning of democracy. But the principles of modern democracy do include those concepts as well.

Just as when people today say “liberal” or “liberal values,” they usually do not mean the philosophy of John Locke.

By the way, one more remark.

Even if I am wrong, and such a committee is needed to decide on a set of higher values to which law and lawmakers are subordinate, I do not think there are many sensible people who would propose in advance that it be composed solely of jurists. One can think of a model of an upper house (like the House of Lords in Britain) whose members are appointed somehow and represent “higher” strata of society or something similar, but certainly not a group of people whose profession (lawyering) essentially includes the element of suspending conscience in exchange for payment. That will be the supreme ethics committee of society? I wonder.

Therefore, in my view it is clear that there is no rational process here of anchoring fundamental values in some sort of higher legislation, but simply the eruption of a forceful factor into a governing vacuum (for which, by the way, the courts cannot be blamed), and if the same thing is happening all over the world one may assume it reflects a general phenomenon of that kind.

To Rational-ish:

“Democracy” is a word, and you can say that what happens today is a new definition of that word, or simply invent a new word—there is no tax on words.

That is precisely why I use the expression “rule by the consent of the governed.” It is a substantive concept, one that fits Locke’s regime and fits Barak’s tricks much less.

A strange concept. The minority says to the majority: okay, dear sir, if that is so then I am no longer interested in the whole package; let us separate and divide the resources and powers proportionally. What then? Will the majority tell the minority that the majority has decided to rule over the minority against its consent? Will the majority tell the minority that it is welcome to get lost, stripped of its assets? In such a definition there is no rule by the consent of the governed (the claim that it is proper to rule over people despite their anger because they made a mistake in the past and agreed to the deal when they thought the bride had no hooves seems to me very brutal). Consent to participate in democracy is renewed each and every day. In my opinion, since both minority and majority know that separation is worse than any alternative, they need to reach agreements. This is the basic argument, and it seems fully valid to me. It remains (only) to add more suspenders and bow ties to bring following the majority into the picture.

Nadav, I disagree with you completely. According to your definition of rule by the consent of the governed, first of all it could also describe a monarchy so long as the public agrees. So that really is not a definition of democracy. A definition closer to democracy is a regime that implements the will of the people. And that raises the question of what the will of the people is. By the way, even according to your definition one can ask what the consent of the governed is, as Cardigno rightly noted.
As for whether this committee ought to be a collection of jurists—you are of course right. But as long as the Knesset has not established another committee, there is a vacuum that the court enters into justifiably. Usually the blame is not on the court, and certainly not all of it. The Knesset is impotent and then whines that someone drank its milkshake. But as stated, that is another discussion, and there I largely agree with you.

Honorable Rabbi Michael Abraham. In your reply to the person who addressed you there, far up the thread, you answer as a priest. But he meant to address you as a prophet.

I did not manage to read all the arguments and counterarguments. All the legal and political arguments do not interest me. The only question, in my opinion, is whether we are prepared for someone suspected of having taken a bribe to be prime minister. It is that simple.
If the candidate were suspected of murder, or of pedophilia, would we be prepared for him to form a government? It seems to me all the people voicing opinions would agree that we would not. Where does the red line pass? Netanyahu offered a bribe deal to Mozes. Should we believe him when he says, “I lied, I didn’t mean it seriously” (which itself testifies to his honesty and clean hands), or that he “meant it”? Either way he is disqualified. There is something wrong with everyone who argues that there is no prohibition in law and that this justifies his appointment. There is something wrong with anyone who argues that one must accept the majority view (“democracy”!). Even if the whole world proclaims that “there is no God,” that will not change the believer’s mind (and vice versa). A moral, value-based position is not a question decided by a vote.

Each of us is supposed to be loyal to the truth whatever the cost. Each of us is supposed to be like Jeremiah, with the truth stored in his bones like a burning fire. For the question at the beginning of the thread is not at all a political question, nor is it a legal question.

I expect you, Rabbi Michael Abraham, to give up trying to examine the hidden intentions of the judges. All the precedents and the history of the court’s decisions—all of that is unimportant and irrelevant. We are at a “singular point.” I ask you, Rabbi Michael Abraham, to relate in that way to the question the questioner raised. You answer as a priest. But the questioner turned to you as a prophet. That is what you are!

They said in Tractate Shabbat 11a: “And Rava bar Machasya said in the name of Rav Hama bar Gurya in the name of Rav: If all the seas were ink, and all the marshes quills, and the heavens parchment, and all mankind scribes—they would not suffice to write the void of the government. What is the verse? Rav Mesharshia said: ‘The heavens for height, and the earth for depth, and the heart of kings is unsearchable’ (Proverbs 25:3).”
And Rashi explained: “The void of the government—i.e., the depth of their heart, for a ruler must have concern for many provinces, for the fixed tax, for many wars, and for many judgments, all in a single day.”

Chaim, see column 258

If you want an answer, you will have to formulate a question, preferably without all the poetry around it. And don’t send me to some vague question up above. I don’t know what you mean. Formulate a question briefly and clearly. I am not a prophet (and not a priest either). That’s all.

At the beginning of this blog post, number 300, there appears a question that someone sent you. A stormy discussion develops. A large part of the discussion concerns questions of law and justice, political forecasts, the status of a minority and the nature of democracy, how much weight the numerical “majority” has, a description of the constitutional situation, and so forth.

Reading your words, I was reminded of Ahad Ha’am’s essay “Priest and Prophet”: “…the priest ascends the stage only after prophecy has already succeeded in paving a path for its idea… and though he too, the priest, serves the idea and desires its fulfillment, he is not one of the giants, and lacking in his heart the audacity required for a world-war against necessity and reality, he tends rather to bow his head before necessity and make a covenant with reality. Instead of remaining within the prophet’s narrowness and demanding from life what it cannot give, he broadens his mind and outlook concerning the relation between life and his idea, and seeks not ‘what ought to be,’ but only ‘what can be’…”

The answer you gave is mostly the answer of a “priest.” And I am asking for the answer of the “prophet” in you.

Two remarks:
1. You can shout “I am not a prophet!” until tomorrow. You are a prophet. Not in the sense of “knowing what will be,” but in the sense of “not giving a damn what anyone thinks, and proclaiming his ideas without fear or favoritism.”
2. I tried, to the best of my ability, to be brief and clear.

In my view these are sorites-paradox arguments. True, there is no such thing as absolute social consensus; there will always be some criminal in Rishon East for whom robbery ought to be permitted, and if not then he does not consent to such a regime—fine.

If I speak about rule by the consent of the governed, I mean the general feeling among a sufficiently large portion of the populace that a fair game is being played, in the sense that we go to the ballot box and decide according to the majority, and if I am very dissatisfied I can console myself with the thought that perhaps one day the majority will be on my side, and then the other side will respect the result.

If most people do not have that feeling, then indeed rule by the consent of the governed is impossible, and there is no choice but to return to rule by tyranny. In that case one would indeed have to assess Aharon Barak and Esther Hayut in relation to other alternative tyrants; it is hard to know what the result would be.