The HCJ Incapacity Ruling: Between Intent and Outcome (Column 616)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I discussed the HCJ “reasonableness” case, in which the Supreme Court struck down the Basic Law amendment limiting the reasonableness doctrine by a vote of 8–7. On the very day that column went up (Wednesday), the HCJ handed down its ruling on incapacity, and once again intervened in an amendment to a Basic Law, this time by a vote of 6–5. Here the law was not voided but its entry into force was postponed to the next term (in the judgment the justices also split over whether postponement is tantamount to invalidation).

In this column I wish mainly to touch on a specific point that arose in the justices’ reasoning regarding the definition of personalized legislation. I will then add two more general remarks. As a preface, I’ll note that I read only the official summary of the judgment, but that suffices since I intend to discuss the ideas themselves, not to parse the judgments or the intent of this or that justice. I’ll add that I am quite sure most of what I say here has already been discussed by legal scholars; nevertheless, I thought it worthwhile to address it to expand and honor the Torah—there is no beit midrash without a new insight.

The HCJ incapacity case

The matter began with a law intended to limit the grounds on which a prime minister can be declared incapacitated. Netanyahu is in the midst of criminal trials, and therefore, under a special arrangement, he undertook as prime minister to refrain from dealing with legal matters. Yet over the past year these became the center of the political arena (the questions of judicial reform), so even if he declares that he is not dealing with them, he is obviously doing so behind the scenes (and in front of them). Sometimes he is even expected to get into the thick of things in order to calm the boiling around the issue. Parenthetically, this expectation does not contradict the demand that he refrain, since the very need to avoid these issues should have prevented him from serving as prime minister at all. It is not reasonable for a prime minister to run the affairs of the state while avoiding engagement with the most important issue for his government (and, as noted, in practice he cannot avoid it). Once he is in the role, we expect him to fulfill it. In my view, the absurdity lies in the HCJ ruling that allowed Netanyahu to serve under an impossible and baseless conflict-of-interest arrangement, instead of barring him from running until the end of the trial. But that milk has already been spilled.

At some point there were public calls to declare him incapacitated, since—as expected—he is not complying with his conflict-of-interest arrangement, and a petition on this matter was filed with the court. The coalition feared that the Attorney General would decide to declare Prime Minister Netanyahu incapacitated due to his conflict of interest, and therefore passed a law limiting the grounds for incapacity to physical and mental inability only (this is Amendment 12 to Basic Law: The Government). Petitions were of course filed immediately against this law, arguing that it was blatantly personalized. As noted, the HCJ held that it is indeed personalized, but did not invalidate it; rather, it postponed its effective date to the next term (which somewhat removes the cloud of personalization from the law).

I was asked in the Q&A for my opinion on this judgment, and I replied that, in my eyes, it is actually reasonable and sensible, and even fairly minor. The law was not struck down—only its application was deferred. It is quite clear that this law has a personalized element, and this is a measured, balanced way to address it. Parenthetically, despite what I just wrote, I also wrote there that, in light of the split among the justices, it is galling to hear the HCJ justices and their supporters repeatedly speak about the neutrality of the judicial act—as if it deals with professional questions and is not dependent on the judge’s worldview and values. In both recent judgments the split between supporters and opponents was unambiguous: conservatives versus non-conservatives; there were no surprises, and each justice ruled as one could have predicted. In both cases the non-conservatives prevailed by a single vote because they (still) have a majority on the Supreme Court. Therefore, even if I agree with the incapacity ruling itself, there is no doubt that the division among the justices again demonstrates that demands for representativeness on the Supreme Court have an excellent basis. At least in these two cases, whoever set the panel thereby set the outcome. If everything depends on the composition of the court and the justices’ outlooks, is it any wonder the coalition wants to change the judicial-appointments process and the court’s composition? The politicization of appointments is an inevitable corollary of the Supreme Court’s areas of engagement and its activist approach, and it is entirely to be expected. Indeed, had there been one more conservative justice on the panel, these two outcomes would have been diametrically different.

There was another point that caught my eye when I read the summary of the incapacity ruling, and that is the main point I wish to address here.

Personalized legislation: the majority’s reasoning

As noted, the discussion revolved around whether this law is personalized. In column 375 I discussed personalized legislation and the difficulty of defining and identifying it. Here I wish to illustrate a problem that did not explicitly appear in that column.

In the summary I read, the majority’s position is described as follows:

The Court held, by a majority (per Acting President Vogelman, with the concurrence of President (emerita) Hayut and Justices Amit, Barak-Erez, Baron (emerita), and Grosskopf), that in enacting Amendment 12 to Basic Law: The Government, the Knesset abused its constituent authority, since the amendment’s immediate application is personalized rather than general. Most of the majority justices held that the amendment was enacted to serve a distinctly personalized purpose—advancing the personal interests of the Prime Minister and removing the legal constraints that applied to him, given the criminal proceedings pending against him.

It was held that this purpose can be inferred, inter alia, from explicit statements by Members of Knesset during the legislative process; from the fact that the amendment was placed on the Knesset’s table immediately after petitions were filed regarding the Prime Minister’s incapacity and that its enactment was completed shortly before the date for filing responses to those petitions; from the amendment’s immediate application; and from the Prime Minister’s explicit statements shortly after the amendment was approved. Justice Barak-Erez believed that Amendment 12 is personalized because it applies to a Prime Minister whose identity is already known, while criminal proceedings are pending against him and petitions to declare him incapacitated are sub judice. In such circumstances, in her view, the amendment must be seen as tailored to the Prime Minister’s measure, and that suffices. Therefore, the majority held that the appropriate remedy is to postpone the amendment’s entry into force, thereby addressing the principal personalized defect.

In the first paragraph it appears that the law’s immediate application is the personalized aspect. That is, the law’s being personalized follows from its content—namely, its immediate applicability. But in the second paragraph a different claim is made: the law’s immediate application shows that the very purpose of the legislation was personalized. In other words, the law’s personalization lies in the legislators’ intentions, not in the legislative product; the latter merely indicates it. This seems to be the thrust of what follows as well, where additional evidence is cited of personalized motivations in the legislative process: the connection to the filing of the incapacity petitions and the Prime Minister’s statements in the Knesset. Barak-Erez added a different claim: a law applied to a person whose identity is already known (not behind a veil of ignorance) is by definition personalized—that is, she again locates the personalization in the outcome of the legislation. On her approach it seems the arguments probing motivations and intentions are not the only ones and perhaps not even relevant (the summary is unclear). But the shared thrust of the majority’s view ties personalization to the legislators’ motivations and intentions, not to the product itself.

Of course, in light of this reasoning, the remedy the Court chose—postponing the law’s entry into force—does not truly solve the problem; it merely neutralizes it. The defect that troubled them lay in the legislators’ intent, not in the legislative outcome, yet one can address that defect by postponing the law’s effect so that it will not apply to the persona in question (Netanyahu). That is, they ensure the legislators’ personalized intent will not be realized, and then the law can be left in place. Note that under Barak-Erez’s logic the postponement cures the defect itself, since the problem of personalization lies in timing. If you defer the law’s effect, it will not apply to the current prime minister—whose identity is presently known—and thus it is not a personalized law.

The difficulty with the majority’s reasoning

Already upon reading, this troubled me. As a rule, legislators’ motivations should not concern us. Every law has various motivations behind it. If a person legislates a law to benefit people with disabilities because they have a child with a disability, will we say this is personalized legislation? Probably not, so long as the law’s content is sound and its application is general. The motivation that led to its enactment—even if one could deem it non-objective—is our business; what we must examine is the law’s content: is it appropriate and for the public good, or not? This is of course delicate, since the Court should not supplant the legislature in deciding what is in the public interest; yet in determining whether legislation is personalized, this seems to me precisely what the Court must do.

In other words, the problem with personalized legislation is not its personalization per se but that it does not serve the public interest. Calling it “personalized” does not itself express the defect in such a law; rather, it offers an explanation for why the legislature produced a problematic law that does not safeguard the public interest—the explanation being that the legislators likely sought to benefit (or to harm) a particular person. But that, in itself, does not mean the law is problematic. The defect in personalized legislation lies in its content, not in legislators’ motivations. This seems almost the reverse of the majority’s reasoning.

Look at it from another angle. Suppose the Knesset enacted a law that is good and proper on its face, but it is relevant to officeholders at present. Should we strike it down merely because the motivations were personalized? Raising the salary of MKs or the prime minister—by definition is that personalized? If the raise is reasonable (indexed to inflation), I find it hard to see it as personalized legislation simply because it applies to the current Knesset. If it is unreasonable, one can consider invalidation—and then explain that it is personalized (serving certain personas’ interests). Likewise, legislation on plenary procedures or modes of addressing ministers or the prime minister would not be personalized if the legislation is proper and sensible, even if it applies to the sitting Knesset.

I will now bring an example of this mode of thinking—and a similar error—from the Talmudic topic of an “aveirah lishmah.”

“Transgression for its own sake”

In columns 353 and 441 I addressed the relation between intent and act, and explained that it is illogical to define criminality in a given act by the result that happened to occur. Criminality should be defined based on intentions or expected outcomes (what the person sought to achieve by the act). Attempted murder is a crime just like murder, even though the outcomes differ. In column 47 I discussed the distortion in our sentencing regime, which focuses mainly on results and treats criminal intent as merely a necessary condition for punishment. The same problem exists in the peculiar—if not absurd—criterion that surfaces regarding prisoner-release deals, of having “blood on the hands” (recall that Sinwar supposedly had no Jewish blood on his hands). All this leads us to conclude that in defining criminality and setting punishment, intent is far more important than outcome.

Yet in column 295 I discussed the sugya of an “aveirah lishmah,” where the conclusion seems the opposite. The example the Gemara gives is Yael, wife of Hever the Kenite, who had relations with Sisera and then killed him. She was a married woman, hence those relations were adultery. There is no halachic license to commit a sexual transgression even for pikuach nefesh. Nevertheless, the Sages view her act as a “transgression for its own sake.” I cited there several later authorities (the Netziv, Rav Kook, and others) who hinge the license to transgress “for its own sake” on a person’s intent. On their view, had Yael intended her personal enjoyment, it would have been forbidden. Only if her intent was for the sake of Heaven (to save Israel) is it permitted and even praiseworthy (and only then does the Gemara say: “Greater is a transgression for its own sake than a commandment not for its own sake”).

There I argued that this is entirely implausible. I assume the license for Yael stems from the importance of killing Sisera and the salvation her act brought Israel (apparently greater than pikuach nefesh of an individual, and thus justifying even a sexual transgression). It makes no sense to think that if Yael had such relations with good intentions but without saving Israel, it would be permitted (cf. Ezra Sheinberg). That is, what permits the act is the outcome, not the intent. Hence, even if Yael had relations with Sisera out of desire, but ultimately used it to kill him and save Israel, it would still be an “aveirah lishmah,” in the sense that the license stands. Had she come to a halachic decisor and asked whether it was permitted though she desired Sisera, he would certainly have to answer yes. The salvation of Israel is the reason that renders the act a “transgression for its own sake.”

True, our moral appraisal of her—whether we view her as righteous—can of course depend on intent. That is because this is a question about the degree of criminality in the act, independent of the license to do it. Regarding the degree of criminality, I wrote above that intent is decisive. But the very license to commit a “transgression for its own sake” depends on the outcome, not on intent. The license derives from the salvation of Israel; it is unreasonable to sacrifice that salvation and forbid the act merely because Yael is not righteous enough to detach from her desires.

We can be a bit more precise. Suppose Yael intended her own pleasure, but her plan was to kill him afterward—and in the end she failed. It seems clear that even then there was, ab initio, a license to act, for at the decision point the data indicated this was the only way to kill Sisera and save Israel. As for our appraisal of Yael herself—this, as we saw, depends on her intent. The fact that in the end it did not succeed neither adds nor detracts. If her original plan was to kill him, the act is permitted; she was merely overpowered and failed. In other words, we must tweak the formulation: the license of “transgression for its own sake” does not depend on intent, but neither does it depend on the actual outcome. The license to act depends on the expected outcome—that is, on the person’s plan (what he can and aims to achieve)—but not on his motivation.

Back to personalized legislation

Thus, while some decisors make the license for a “transgression for its own sake” depend on the actor’s intent, that is a mistake. In truth, the license does not depend on intent but on the (planned) outcome. This is very similar to what I argued about personalized legislation. There too, the majority justices tied it to the legislators’ intentions, whereas the truth is that it depends on the outcome. If the outcome justifies the legislation, I am not meant to invalidate it because it was enacted from personalized motivations.

Indeed, continuing to read I saw that the minority justices raised precisely this claim. Here is the quote from the abstract:

Justices Solberg, Mintz, and Elron objected to the very use of the doctrine of abuse of the constituent authority and, on the merits, believed that Amendment 12 is not personalized. In this regard, they distinguished between the motive for legislating the amendment and its purpose—which, in their view, was to establish a general framework for declaring a prime minister incapacitated.

They argue that a law’s personalization is determined by the law’s purpose, not by legislators’ motives. Since what we have here is a legitimate regulation regarding the declaration of a prime minister’s incapacity—and on this there is certainly room to hold that the amendment is proper—the legislators’ motivations neither add nor detract. That, precisely, is my point.

Justice Willner, also in the minority, made a similar argument:

Justice Willner believed that the requirement of generality concerns the norm’s scope of application, not the personalized considerations before MKs when enacting it; accordingly, since the amendment’s application is general, it meets that requirement.

This is very similar, but not identical. Here she ties the matter to the law’s scope of application (to whom it applies). If a law does not expressly address a specific person and its application is general, it is not personalized. Either way, even on her view, personalization is determined by the law’s content, not by legislators’ motivations. This formulation is the most sensible, since as I noted above, the alternative is to equate “personalized law” with “unsound law” (and personalization then merely explains why an unsound law was enacted). I pointed out that a substantive review of a law’s outcome (whether it is sound) is problematic, since that is the legislature’s role, not the Court’s. If the legislature determined that the law is sound, that is its mandate—it was elected for that—and an unelected court cannot substitute its judgment. But Willner argues that everything is determined by the law’s application, regardless of its content and certainly irrespective of legislators’ motivations. A law that applies to a specific person is personalized even if it is sound; conversely, if it applies to many (to a class), it is not personalized even if unsound. Incidentally, a law that applies to a named list of individuals rather than a class would of course also be personalized. A law should refer to general characteristics and classes of people, not to specific individuals, one or more. But her approach, of course, almost empties the personalization ground of content. No one drafts a law by listing people’s names, even when the intent is thoroughly personalized (were the “Yigal Amir laws” personalized? Undoubtedly in intent, but not by name; they speak of assassins of a prime minister). Thus she is surely correct that this is an excellent, conceptually clean definition of personalization, but practically it is a hollow criterion. As our sages said: no free lunch. Theoretically perfect formulations rarely work in reality.

Combining the arguments: dual explanations

It is interesting in this context to bring a passage from Acting President Vogelman’s reasoning in the summary:

Acting President Vogelman noted in his opinion that one of the fundamental features of law in a democratic state is its general application, and that in the legislative process the legislator must keep the general public interest in view rather than design the law with the benefit of a specific person before his eyes. This principle applies a fortiori to Basic Laws. He added that a personalized defect can adhere to legislation even if, by its terms, the Basic Law does not aim at a specific person, where a personalized purpose underlay the enactment. In this context he distinguished between the motive for the legislation (the “trigger” for legislating) and its purpose (the goals and values the enactment sought to realize).

As for Amendment 12, Acting President Vogelman held that in the present case MKs did not set before their eyes the proper incapacity regime, but rather the regime that would free the hands of the sitting Prime Minister from the legal constraints that applied to him. The Prime Minister’s legal situation and the petitions pending regarding a declaration of his incapacity constituted not only the motive for the legislation but also its stated purpose: to benefit the sitting Prime Minister. This purpose can be learned from the legislative process in all its stages; from the fact that the amendment was placed on the Knesset’s table near the filing of the petitions against the Prime Minister; from the fact that it was approved shortly before the deadline for filing responses in those petitions; from the Prime Minister’s post-approval statements; and from its immediate application.

Beyond rejecting Willner’s approach (which hangs personalization on the group to which the law applies), there is here an engagement with the problem I raised—intent versus outcome. He proposes combining two types of reasoning: the legislators’ motives and the product—the law’s content. It is unclear to me what the difference is between motives and the purposes the law seeks to promote (is that the product—content—or the legislator’s intent?). In the passage here (again, this is the summary, not the full opinion) there is a mixing of the two.

On another reading, I think he means to argue that once we show that, as to their motives, the legislators did not intend the public good but rather the benefit of a particular person, there is a presumption that the product is also unsound. That way one can circumvent the difficulty I presented with approaches that examine a law’s content and purpose. The difficulty was that the Court lacks authority to decide what the proper arrangement is in terms of content, for the body charged with determining the public interest is the government and Knesset. The claim here is that if we examine legislators’ motives and find they were personalized, we may rely on that as an indication creating a presumption that the legislative product is not aligned with the public interest. We are spared having to prove this directly. If I wish to judge all the majority justices favorably (and again, one should read their words in full), perhaps they meant only to infer from legislators’ intent the character of the law itself, not to make personalization hinge on intent.

Note that in the “transgression for its own sake” sugya one cannot say this. Whether an act is sound in its outcomes is a factual question; thus we do not need indicators from the actor’s intent to the act’s utility. But in our case the soundness of the law itself is debatable, and therefore intent can serve as a relevant indicator (see also below that intent is an indicator, in legislators’ own view, on the merits).

Incidentally, a similar argument could have been raised regarding the reasonableness doctrine. When an administrative body takes a patently unreasonable action, that is an indicator that it had extraneous motives (otherwise, why did it act so?). From this one could argue that even if the reasonableness ground does not exist, decisions could still be voided for unreasonableness because there is a presumption that they rest on extraneous considerations. Such a discussion would not contradict the amendment’s instruction ostensibly barring any review of the reasonableness of a ministerial or governmental decision, since here we do not review reasonableness as such but use it as an indicator of lack of relevance—an existing ground for voiding administrative actions. This consideration further sharpens my claim from the previous column: the narrowing of the reasonableness doctrine is not significant and does not justify judicial intervention.

My own view on incapacity

Bottom line: I fully agree that it was correct to defer this law’s application to the next term. Despite the difficulty of defining personalization, this law gives off a strong whiff of it. True, it is hard to argue that the law itself (the product) is illegitimate, since the position that a prime minister cannot be declared incapacitated for non-medical reasons is one that can be held on substantive grounds (though personally I am not inclined to agree). But the evidence cited in the judgment for personalized motives among legislators at least points to problematic intent on their part. As we saw, if the intent is problematic, that raises doubts about the law’s legitimacy itself. One could even go further: even if the position is, in itself, a legally legitimate one, it is doubtful whether this is the legislators’ true position. If they acted for personalized reasons, there is room to think that even they do not truly believe such a law accords with the public interest as they best understand it. If so, that is a reason to invalidate it, since our claim that it seems unsound is not rebutted by their enactment. When there is a dispute between the Court and the Knesset, the Knesset is the one with the mandate to set the proper law and the public interest—but only if it truly expresses a substantive position. In a law enacted from personalized motives, there is no expression of a position on the merits, and the Court may then decide whether it is sound or not.

I am not sure that such a consideration suffices to void the law—at least if, on its face, it could be legitimate—but it certainly suffices, in my view, to defer its application and thus somewhat reduce its personalized aspect. Admittedly, if the reason is that the law is unsound (even in the legislators’ own view), one could ask why apply it at all in the next term. That would seem a reason to void it entirely. But perhaps it suffices that, if the law is unsound once the personalized dimension is neutralized, it will be repealed in the next term (and if the same government remains, further thought is needed). Perhaps there is room to require re-ratification in the next term rather than mere postponement. Of course, if the same coalition returns and again re-ratifies the law, it is questionable whether one could then void it or postpone it again on the basis of personalization.

So much for intent versus outcome in personalized legislation and in “transgression for its own sake.” I will conclude with two side remarks about the judgment.

A. Spurious correlations, again

In the previous column I discussed the correlation between two independent questions: whether the Court has authority to strike down a Basic Law, and whether narrowing the reasonableness doctrine is problematic enough to justify exercising that authority, if it exists. We saw there that in public discourse there is an almost perfect correlation between the questions, despite their independence: those who saw extreme problems in the law also believed the Court has authority to strike down a Basic Law; those who did not think the law problematic also believed the Court lacks such authority. We saw that there was no justice who thought there was justification for voiding the law but that the Court lacked authority to do so. I explained that this indicates that when a judge sees a need, he generally finds a way.

The Court’s ability to intervene in Basic-Law legislation is based on the doctrine of abuse of the constituent authority. Historically, the First Knesset was a constituent assembly established to create a constitution that would serve as the framework for the state’s political activity thereafter, and then dissolve and choose a new Knesset that would function as a legislature and fill that framework with ordinary laws. As is known, this did not happen because it was difficult to agree on a constitution. The First Knesset, instead of dissolving, appointed itself both legislature and constituent authority. Since then, when the Knesset enacts Basic Laws, it acts in its capacity as constituent authority rather than as legislature, and there is doubt as to how far this is within its authority.[1] This is the reason the Court permits itself to intervene in Basic-Law legislation, and then only when the Knesset abuses the constituent authority it appropriated to itself. When the justices speak of the doctrine of abuse of the constituent authority, they mean the doctrine that enables intervention in Basic-Law legislation. Striking down an ordinary statute is based on a contradiction to a Basic Law; striking down a Basic Law has no other basis save this controversial doctrine (which, as I noted in the previous column, commanded a 12–3 majority in the reasonableness case).

You can now see a similar phenomenon of spurious correlations in this case too. Although, as I noted, the law here was not voided—its effect was postponed—there is still judicial involvement in Basic-Law legislation. In the quotation above we see that at least three minority justices also reject the doctrine that enables interference in Basic-Law legislation (for them, postponement is akin to invalidation), and beyond that they also reject that, even if the Court had such authority, this case justifies using it—virtually the same as in the previous case. True, not quite the same, since here two of the minority did not address the power to strike down Basic Laws (apparently because we are dealing with postponement, not invalidation). But note the reverse direction: again, there was no justice who thought it appropriate to void or defer the amendment but that there is no power to interfere in Basic-Law legislation. Once more we see that if a judge deems it necessary to void a law or decision, he will always find a way.

As I explained in the previous column, this itself is an argument against voiding the reasonableness-limiting amendment (though not against deferring the incapacity amendment), since it shows that even without it the justices will not be left without tools for judicial review.

B. Abuse of the constituent authority

Justice Solberg presents a very interesting argument regarding abuse of the constituent authority. In the summary it is described as follows:

According to Justice Solberg, even if, as the majority holds, the amendment falls outside the scope of a Basic Law—even if it is “downgraded” by such-and-such doctrine—its status remains firm as an “ordinary” incapacity statute, with the force of primary legislation. A holding that if it is not a Basic Law then it is void altogether, and is not even an ordinary law, disperses the fog and points to the “essence” of the doctrine of “abuse of the constituent authority”: under the guise of a simple test of “identification,” substantive judicial review is being applied to Basic Laws.

His claim is that even if the doctrine of abuse of the constituent authority is correct, at most one can say there is no constituent authority here, only a legislature lacking authority to enact Basic Laws. The conclusion would be, at most, that this provision should have the force of an ordinary statute, not of a Basic Law—but there is no justification to void or defer it (his premise is that deferral equals invalidation; I am not inclined to agree, but that is another matter). On the face of it this is very logical. How can one, by virtue of that doctrine, void a Basic-Law provision altogether? The Knesset is certainly a legislature and has authority to legislate.

President (emerita) Hayut addresses this claim and rejects it on a practical ground (again, quoting the summary):

Contrary to Justice Solberg’s view, the President (emerita) believes that where the Knesset abused its “hat” as a constituent authority, one cannot retroactively “place on its head” the hat of ordinary legislator, thereby turning into an ordinary law what it had defectively labeled a Basic Law. In her view, such a move entrenches the weaknesses of Israel’s constitutional enterprise and even encourages their continued abuse.

This reasoning is purposive and practical: accepting the provision as an ordinary statute would encourage continued abuse of the constituent authority. This is very problematic, in my view, since such reasoning is beyond the Court’s authority. The Court absolutely cannot void a law out of fear of what the Knesset might do in the future. If the Court lacks a present ground to void a law, it must not do so. Should the Knesset do something improper in the future, that can be addressed then (I made the same point in the previous column).

However, another response (not in the summary, at least) could be made to Solberg, and it does strike me as significant. It is clear that even under the Knesset’s legislative authority, it may not abuse that authority (one may not abuse any authority). Accordingly, one could equally void the law as an ordinary statute on the basis of a similar doctrine—abuse of the legislative authority. Personalized legislation is such an abuse. We invoke this reasoning for Basic-Law provisions because striking down ordinary statutes generally does not require it—not because it is irrelevant to ordinary statutes (though, when striking down an ordinary statute not on the basis of contradiction to a Basic Law, in my view one would need it as well. There too a principled question arises as to whether the Court even has such authority).

One might perhaps argue that, for the majority justices, the abuse here is not the personalization of the legislation, but anchoring it as a Basic-Law provision (to shield it from judicial review), and therefore such reasoning cannot be used against the law’s validity as such. But that is unlikely to be the point, because if that were the argument, the conclusion would indeed be that the law has the status of an ordinary statute (as noted, fear for the future is beyond the Court’s authority). Moreover, the law’s subject matter itself dictates that it belongs in the Basic Laws (since it amends a section of Basic Law: The Government), so if one accepts the substance of the law, anchoring it as a Basic Law is certainly not, in itself, an abuse of the constituent authority. It was legislated as a Basic Law because that is the nature of a section in Basic Law: The Government. The conclusion is that the abuse lies in the law’s personalization, not in its being labeled a Basic Law—and if so, my claim against Solberg returns (the law should be voided altogether, because abuse of authority is forbidden also under legislative power).[2]

I think Solberg’s answer to this would be as follows. In various judgments, the reasoning of abuse of the constituent authority is always based on the historical account I sketched above—namely, that the First Knesset took upon itself both authorities, including the constituent one, without true authorization. It seems only on that basis does the argument arise that if the Knesset abuses that authority, it was never truly entrusted to it and its acts are void. But if that is the argument, it cannot be applied to legislative authority, for that authority was indeed entrusted to it from the outset. I assume that even there one could raise a claim of abuse of authority (legislative), since even an entrusted authority may not be abused—but there the standard would have to be much clearer and more proven. Perhaps Solberg relied on this when he held that even if the Basic-Law status is void, the provision should remain in force as an ordinary statute.

[1] One could ask who would have been empowered to amend and add to the existing constitution if there were no longer a constituent authority. Likely this would have been given to the Knesset, which would then have become both legislature and constituent authority. But that would have occurred by virtue of the constitution created by the original constituent authority. So long as there is no constitution that sets who may amend and add to it, the authority, essentially, does not exist.

[2] Additionally, one may wonder whether it is appropriate to insert into Basic Law: The Government a section that has the force of an ordinary statute. On the face of it, the section’s very content dictates it is a Basic-Law provision. Beyond that, if it is an ordinary statute, the prior version of the Basic Law would seemingly prevail and nullify it ipso facto (though this depends on various override mechanisms).