A Look at Personal Legislation and at Law in General (Column 375)

Some time ago I came across a piece by Rabbi Sherlow about personal legislation, and I thought it appropriate to discuss the topic and give it some thought. In a certain sense, this subject connects to the previous column, which dealt with subjective dimensions in halakhah, since personal legislation essentially creates a subjective law—that is, a law that treats different people differently merely because of who they are and not because of objective circumstances. Admittedly, the similarity between the topics is only superficial, since personal legislation in this subjective sense does not exist in halakhah either. The subjective dimensions we saw there distinguish between the person who is the source of the information and other people, and in that sense we are dealing with a law, or rule, that is entirely egalitarian. Anyone who makes an admission of a litigant or has a dream will be subject to the same rules, except that they apply to that person and not to others. The differences between people stem from relevant differences and not from their name or identity. By contrast, personal legislation is legislation directed at a specific person, by name or identity, meaning that if another person were to find themselves in the same circumstances, that law would not apply to them.

Between Personal Legislation and Retroactive or Hasty Legislation

Rabbi Sherlow devotes his article to personal legislation, but in fact much of what he discusses is retroactive legislation and overly hasty legislation (enacted without sufficient prior deliberation). There is, indeed, a connection between those two and personal legislation, but it is important to understand that these are by no means the same problems (he himself hints at this, in the paragraph on the “veil of ignorance”).

Hasty legislation

Hasty legislation can occur even when the laws in question are not personal at all, and therefore it is a completely different problem. It is a problem of recklessness in legislation, unrelated to whether it is personal. Even if one were to legislate a Basic Law: The Government without sufficient thought, that would not be personal legislation—it would simply be overly hasty legislation. True, personal legislation is often enacted hastily, for two reasons: it is intended to neutralize a particular person and therefore there is urgency in legislating it; and there is no real need for prior deliberation, since such a law lacks deep foundations and complex aims that require careful consideration. It is merely a targeted killing. One can perhaps say that one of the problems with personal legislation is its speed, but that is a technical and marginal matter. One can enact personal legislation slowly and judiciously and it would still be problematic. Likewise, one can enact non-personal legislation too quickly; that is indeed problematic, but it certainly does not make it personal.

Retroactive legislation

The same goes for retroactive legislation. In legal thought it is generally accepted that a law should apply from the time it is legislated and not earlier (Rabbi Sherlow brings halakhic support for this from Yevamot 98a, Avodah Zarah 70a, and in the Shulchan Aruch, Yoreh De’ah), and there are good reasons for that. But, again, this problem is not unique to personal legislation. There can be retroactive legislation that is not personal, and personal legislation that is not retroactive. I can legislate in 2021 a law that stipulates that every citizen of Israel must pay double income tax on all of their income from 1994 onward. That is retroactive legislation that is not personal. Likewise, consider the following law: anyone whose name begins with the letters B and N (like Binyamin, for example) cannot be elected prime minister from 2025 onward. That is personal legislation that is not retroactive. It could, of course, also undergo a long and extensive public debate (in which everyone becomes convinced that Netanyahu cannot be prime minister), and it would still be personal legislation. And again, it is true that personal legislation usually contains elements of retroactivity, since its purpose is to harm someone who has already been targeted. Still, that only means, at most, that one of the problems with personal legislation is its retroactive character—but that, too, is mainly a technical and marginal point.

Neither problem is absolute

The problems of hasty legislation and of retroactive legislation are not categorical; that is, there are cases in which such types of legislation can be justified. For example, when there is an urgent situation and there is no choice but to legislate a law to solve the problem (as in dealing with COVID-19), there is room for hasty legislation despite the risks and difficulties involved. The same applies to retroactive legislation. The Nazis and Nazi Collaborators (Punishment) Law was enacted in the State of Israel, which came into being about three years after the Nazis were defeated in the war. This is retroactive legislation, and yet many would say it is justified. After all, it was impossible to legislate a law against the Nazis before they began to act—both because we did not imagine such a situation could occur and because we did not yet exist as a state.[1]

A problem in defining retroactivity

In light of what we have seen, I will note that there is a certain problem in defining retroactivity. One could say, for example, that the Nazis and Nazi Collaborators Law, enacted years after those acts were committed, is not truly retroactive. It instructs us to punish the perpetrators from now on, except that the acts in question were done before the law was enacted. This is prospective legislation rather than truly retroactive. The same with imposing taxes on Israeli citizens for income from 1994: the payment is collected now, not earlier, and in that sense it is prospective legislation and not entirely retroactive. But if we adopt that criterion, there is in fact no such thing as retroactive legislation: the implementation of any law always takes place after it is enacted. The retroactivity in question necessarily concerns the circumstances to which the law relates (such as the Nazis’ actions) and not the law’s implementation.

What is personal legislation?

In any case, we have seen that both hasty and retroactive legislation can be justified in certain cases. Can personal legislation also be justified in special situations? I will say at the outset that in my view it cannot. But to explain this, we must first examine the concept of personal legislation: what exactly it includes, and what problems are inherent in such legislation (that is, what issues exist beyond speed and retroactivity).

First, we must ask: what exactly is a personal law? Formally defined, it is a law for which one of the variables determining its application is a person’s name or identity, and not acts or circumstances defined objectively and generally. For example, a law that declares that Moshe Zokhmir cannot serve as prime minister is a personal law. By contrast, if we were to define that anyone who possesses properties X, Y, and Z (which happen to be precisely Zokhmir’s properties, and only his) cannot serve as prime minister—this would not be a personal law (see reservations below). The same holds for a law that addresses a group of several people, so long as the determining factor is their identity or names and not circumstances and acts. More broadly, one can say that if there is a law that applies to person A but not to person B, when there is no difference between A and B that is relevant to the law’s purposes, then that is personal law. As Rabbi Sherlow notes, drawing on John Rawls, a law should be legislated from behind the veil of ignorance. You are not supposed to know anything about a person’s name and identity in order to determine the law’s application to them. What matters are only their circumstances and actions.

But now you can see that even this definition is anything but simple. It makes everything depend on the law’s purposes. If the purpose of the law is to prevent Moshe Zokhmir from being prime minister, then his personal identification is highly relevant. At this point one wants to say that the purpose itself is unworthy because it is personal. If so, it is not the law that is personal but its purpose. But here we are already entering the evaluation of motivations and purposes of laws—no simple task at all.

In conclusion, to determine that a specific law is personal, we must examine three things: 1) What its purpose is. 2) Whether that purpose itself is personal. 3) In light of the purpose, whether it is applied in a way relevant to that purpose, and if not—then it is personal. You can already see how ill-defined the concept of “personal law” is, how open it is to debate, and how dependent it is on worldviews and political agendas.

The crux of the problem: individuation vs. description

One example I once encountered was a regulation of some government ministry (I think the Ministry of Education), which conditioned support for a nonprofit engaged in nature conservation on something like the following requirements (I am reconstructing a similar scheme from memory): the nonprofit will engage in preserving nature and will conduct guided tours, maintain nature reserves, employ at least two hundred workers, and have been in existence for at least 23 years. In other words, this support was intended for the Society for the Protection of Nature in Israel, and for no one else (no other nonprofit meets those criteria. Incidentally, the required age was synchronized precisely with the age of the SPNI at the time). It is reasonable to assume that the ministry defined it that way because it wanted to transfer funds to the SPNI, but feared personal legislation and therefore hid it behind the “veil of ignorance.” The funding is not intended specifically for SPNI but for any organization that meets that set of criteria, except that “by chance” there is only one such nonprofit. When a set of criteria singles out only one actor or a few actors who were pre-selected, we tend to think this is still personal law in disguise.

This matter is related to the distinction between individuation and description, discussed in the second gate of my book Two Wagons. I pointed out there that a description of an object is never equivalent to its individuation. When I say “Michael Abraham son of Nachman Mendel” (assuming there is only one person so named), I have singled out a particular person—in this case, myself. That is the individuation of an object (a person, in this case). But I can just as well speak about the person who has taught at the Beit Midrash at Bar-Ilan University for more than 14 years, lives in Ramat Elishiv in Lod, and whose wife’s name is Daphna. As far as I know, that description fits only one object and no other (me). Bertrand Russell, in his famous 1905 essay on denoting, and other analytic philosophers after him, pointed out that this is not individuation; it is a description, and as such it is in principle possible that several objects fit it. Theoretically there could be someone else who satisfies all those properties. Thus, a person’s or body’s name effects individuation, whereas a description does not (even if, as a matter of fact, it happens to fit only one object).[2] In this terminology, one can say that the ministry defined the nonprofits eligible for support by means of a description, thereby avoiding the individuation of a specific organization. The bottom-line result is the same, but there was no personal legislation in the abstract, pure sense of the term, because the law does not contain individuation.

How can we nevertheless detect a personal law?

So what is the problem? Why do we still relate to such a regulation as a personal law? It seems this is because the criteria defined for eligibility are not relevant. Why support specifically an organization that employs more than two hundred workers? And why specifically one that has existed for 23 years? In other words, the “personalness” here hides in the results of the legislation and not in its wording. The wording is general, but the outcome singles out only one person (or entity). Incidentally, that is usually the case. I do not think you will find a law that explicitly mentions the name of a specific person or entity (where that is irrelevant to the law’s purpose).[3] Personal legislation always hides behind such a unique description, thereby skirting the need to use a name in the text of the law. Therefore, the way to detect the personal nature of a law is not by searching for specific names in its text, but by identifying the group to which it is applied and examining the relevance of the criteria mentioned in the law.

Here is the problem

But here there is room for debate: perhaps, in fact, only veteran nonprofits deserve support? Who will determine the relevant age? And if there is an age threshold, why not 23 years? The size of the organization can also be a relevant parameter (one might prefer to support organizations that employ many people), so a threshold of two hundred employees is set. What is wrong with that? We see that every such definition, as long as it does not include explicit individuation, can be given some justification—and yet there are cases in which it is clear to all of us that this is personal legislation. Usually, at least in the interesting cases, this will immediately depend on our worldview.

Further examples

Take for example the proposed law against a prime minister serving while under indictment. On the one hand, many will say there is no law more fitting than this. Objections can be raised (“let the people decide”), but it is certainly not an outrageous law. On the other hand, the timing of the law is certainly not accidental—no one will deny that. It is clear to all of us that the law is being advanced to prevent Bibi from serving and to exert political pressure on him. In that sense, it plainly seems to be personal legislation. But when one examines the law itself, including its criteria, there is nothing personal about it. I am sure that all of Bibi’s supporters who cry out against the law would support it enthusiastically (even in Meretz) if it concerned a candidate from the other side of the map. So is it personal, or not?

Moreover, many people will justify the law by claiming that the goal of preventing Bibi’s tenure is worthy (because he truly should not serve as prime minister), and therefore the personal nature of the law does not frighten them. The law indeed fits its stated purposes, and in that sense it is not personal. Below I will discuss the legitimacy of personal legislation as a parliamentary maneuver for political ends. Others will say that this very issue should be decided in elections (whether or not Bibi should serve), and in that sense it is personal legislation and its purposes are political and unworthy (see, for example, the debate here).

And what about the Yigal Amir Law? It also concerns the murderer of a prime minister, but everyone understands that the law addresses a very specific person, Yigal Amir. Therefore, even if his name is not explicitly mentioned in the law, from all sides it is called the “Yigal Amir Law,” and in that everyone acknowledges that it is a quintessential personal law. There were intentions to pass additional laws affecting him, such as a law prohibiting him from marrying, requiring that he be held in isolation, prohibiting him from receiving visitors, and more. All of these are clearly personal laws, yet Yigal Amir’s name is not mentioned in them. Moreover, reading the text of the law, it appears entirely legitimate. It ostensibly imposes sanctions on anyone who murders a prime minister. That is, even if one could argue about it (why is a prime minister’s blood “redder”?), it is clear that the law’s purposes are not personal. Except that “by chance,” at present there is only one person who fits those criteria. This is individuation by description (not by name), and therefore it is quite similar to the SPNI case above. But here the law’s purposes are wholly relevant, and the fact that only one person fits the criteria is truly incidental and not contrived. It is reasonable to assume that if there were another murderer of a prime minister, no one would object to applying the law to him as well (unlike the SPNI case).

I have already mentioned the Nazis and Nazi Collaborators Law (not to mention the law I once proposed for bringing French philosophers and their collaborators to justice). This is retroactive legislation and personal par excellence (and in this case the explicit name—“Nazis”—even appears in the law). Personally, I truly think this is a flawed law. The Nazis should not have been mentioned by name; the legislator should have addressed perpetrators of systematic murder and particularly cruel treatment of certain populations—or a similar definition. One could, of course, have mentioned the Nazis as an example, but not as the subject of the law. I assume the intention in drafting the law was to sharpen the uniqueness of the Nazi phenomenon, but in my view that is an improper act at the legal level. As I understand it, under the current legal situation it would not be possible to apply that law to another racist and cruel group that behaves exactly like the Nazis, since the law deals specifically with Nazis and their collaborators. In that sense it is improper personal legislation.

Here we see the difference between retroactivity and personalness. Retroactivity (at least when we are speaking of prospectivity) can have justifications, but personalness cannot. The “veil of ignorance” must be preserved in any case. And this sharpens the problem inherent in personal legislation as such, irrespective of speed and retroactivity.

How is this different from any other political maneuver?

One may wonder how personal legislation—for example, legislation intended to carry out a targeted elimination of a specific figure or political actor—differs from any other political maneuver. After all, it is everyday practice that MKs deliberately absent themselves from the plenum, refuse to offset absences with MKs who hold opposing positions, employ parliamentary tricks and ambushes to produce an ad hoc majority in the Knesset, impose coalition discipline with no real justification, and other such mischief. All these essentially produce laws and legal arrangements that do not necessarily reflect public opinion, yet they are considered semi-legitimate political maneuvers on the political playing field.[4] So why is trying to achieve a political goal that prevents Bibi from being prime minister—via personal legislation—objectionable?

To be honest, I am not sure this maneuver is fundamentally different from any other political trick. The discomfort regarding personal legislation stems from the fact that such legislation pulls the rug out from under the rule of law as a whole. Once the law serves as a tool for maneuvers on the political field, the law itself is degraded and society’s functioning is endangered. You can still ask: what is the difference between various laws that are passed for political needs (for or against drafting the ultra-Orthodox, and the like)? I have no perfect answer. The intuition is that using the law as a gimmick is problematic, and personal legislation is not exceptional in that regard.

I will go further. The very fact that it is hard to articulate and substantiate what is problematic about personal legislation reflects a situation that is itself highly problematic. In Israel today there is no real administrative and public law, at least not with respect to the institutions of government. Public and administrative law are tools in the hands of politicians. There are quite a few laws, including Basic Laws, whose lifespan is less than one Knesset term. A law is enacted by an ad hoc majority as part of a particular political conjuncture, and when a different conjuncture arises it is repealed. When one wants a parity government with an alternate prime minister, a Basic Law (!) is legislated in seconds to make it possible. No problem: an agreement among a few parties within a week overturns the most fundamental structures of government in the country, simply because a party or two had a political need or interest. In this way, a government that wants to do something the law forbids can simply change the law. Thus the law is intended for citizens but not for politicians. They stand above the law and essentially use it to serve their needs. If something is forbidden to them, they change the law and it becomes permitted.

In a certain sense, de facto, the principle of legality has been inverted. The principle of legality holds that for citizens, everything is permitted unless the law forbids it.[5] For the organs of government, the situation is the opposite: everything is forbidden to them unless the law authorizes it. The logic behind this principle is very clear. Government bodies exercise power and authority over citizens, and therefore they may do so only where the law permits it. Citizens act in their personal sphere, and therefore to forbid them from doing something, a law is required. But our situation is different—almost the reverse: citizens are subject to the law, which constrains them, whereas public officials and government institutions are not. If something constrains them, they change it. De facto, the majority has unlimited power to use for its own benefit and interests, with no legal constraints upon it.

This is an intolerable situation that makes a mockery of the rule of law. In our current state, the law is not a stable framework that manages and oversees society’s functioning, but rather a tool in the hands of the government to accumulate power and take care of its interests. That is the price involved in playing political tricks on the legal field, as opposed to tricks in the parliamentary field. The boundary is thin, and when parliamentary tricks are applied to legislation, it really is hard to fault someone who wants to legislate a personal law. But, as I noted earlier, the very situation in which it is hard to explain what is wrong with a personal law itself reflects a deep crisis in our society. A society cannot function when laws change constantly according to interests. Beyond the fact that the law is used by the government for its own interests, public trust in the law deteriorates and obedience to the law plummets. Why should I obey a law when it is clear to me that its legislative process was a whim or a political stunt by a bunch of cynics in whom I have no trust?

A legal system cannot function when the public sees it as nothing but power; when the law is observed only to avoid being caught. In such a situation, whoever is not caught “wins,” and everyone will at least try to break the law. A society can function only where the public has basic trust in the law and in government institutions. The use of force and punishment are auxiliaries, but by themselves they cannot achieve what a value-based commitment to law achieves. The COVID-19 era demonstrates the price of the loss of trust in law and in governmental institutions. They earned it fairly and cooked this porridge with their own ten fingers. But in such an atmosphere it is truly hard to speak about the special problem of personal legislation.

In a healthy state of affairs, the law—any law (not only Basic Laws)—should be stable and hard to change. It certainly should not reflect a temporary political situation but the society’s deep values and beliefs. The long-term price of exploiting the law for a short-term interest is enormous. People support personal legislation or other self-interested legislative maneuvers because of short-term political gain, but they do not understand the tremendous price we will all pay in the long term. I always recall in this context the halcyon Obama era, when one of the cornerstones of his agenda—on which, and for which, he was elected—was his health-care reform (Obamacare). I remember that at some stage during his presidency there was a slim majority of 51 senators (out of 100) in favor of the law, and Obama insisted not to pass it by such a narrow majority. He waited until there was a sufficiently qualified majority (I believe 60 senators), because the accepted norm was that such a fundamental law is not passed by an ad hoc majority. He gave up what would have been his greatest political success because of a political norm. In my eyes this is an exemplary case of respecting the law and the importance of its stability. A law should express society’s deep currents, not a passing political conjuncture—and this is precisely how Obama (may he live long) handled it.

With us, of course, this could not happen. Interest and opportunity dictate the law. Sometimes the High Court intervenes—at times also without authority—and declares that in such a case a norm is binding, and thus decides to annul the law. It is important to understand that the High Court’s involvement mirrors the government’s conduct (see the remark by former Justice Yoram Danziger cited in note 4 above). If the legislator plays tricks with the legal system, we should not complain about the judiciary for doing counter-tricks to balance the picture.

Everyone understands that there are no saints and sinners here—only “us” and “our adversaries.” Complaints directed toward the political sphere (from the left) or toward the judicial sphere (from the right) reflect almost exclusively a political agenda and not substantive argument. The right complains about High Court activism—seemingly with justification—but supports the Knesset’s and the government’s tricks because that suits it. The left opposes those tricks because they do not suit it, but it is an enthusiastic supporter of judicial shenanigans when they do. Clearly, were the situation reversed, the picture would be reversed (the right would complain about the government and the left about the judiciary). In other words, we ourselves participate in a biased and non-substantive discourse that views the law and the institutions of government (and the courts) as tools for cynical maneuvers on the political playing field.

If we do not relate to the law in a respectful and proper way, we should not be surprised by the results we ourselves produce with our own hands. If politicians do tricks that the law does not allow, under various artificial pretexts, then the High Court may do the same—and vice versa. In Column 300 I described the limbo in which our society finds itself. Here I expand the canvas and show why this limbo is even broader and deeper than described there. It is not only the limbo of government institutions but of society as a whole. The governmental-political limbo reflects a social limbo.

I know all this may sound somewhat detached, as if I think someone can change this situation that seems to us a decree of fate. Besides, after all, we are right and only the others are doing us unfair and improper tricks. Therefore, I also assume that right after this column the expected responses will arrive, explaining that I have once again succumbed to left-wing (or right-wing) brainwashing and therefore I do not understand that the government behaves excellently and only the High Court is criminal (see my remarks in Column 258). Responses that will again explain why we are right and the others (Pharaoh and his people) are the wicked. People do not understand that with this biased and non-substantive discourse we ourselves create the very situation we protest against.

What does all this have to do with halakhah?

I mentioned that Rabbi Sherlow cited several halakhic sources as a basis for the problem with personal and retroactive legislation. One can also add sources regarding dina de-malkhuta (the law of the land), where there are also restrictions on unequal and discriminatory law (see here, under the section “dina de-gazlanuta,” that a king’s unequal law is not binding). I am sure that any religious article or book that deals with personal or retroactive legislation will overwhelm us with sources printed in Rashi script and bound in golden letters, all explaining that it is forbidden to do this and that such a law is not binding—because, of course, so it is explicit in the words of the questioner in Responsa Tzintzenet ha-Man, and in the responses of the Rashba and the Chatam Sofer, and others.

But as I understand it, the halakhic issue is neither important nor relevant here. I do not need a halakhic source to understand that there is a problem, since common sense tells us so. Moreover, the halakhic sources add nothing beyond the social-moral insight. They are not binding sources; rather, they mirror that same common-sense understanding. Furthermore, if you pay attention, you will see that even in the halakhic sources brought in this context (as with dina de-malkhuta), the poskim derive these rules from sevara (reasoning), since there is no verse from which we learn that a king’s unequal law is not binding. So just as the poskim said this by reasoning with respect to dina de-malkhuta in their context, we can say it by reasoning with respect to law in our context. There is no reason to resort to a halakhic discussion here. It is more sensible to go straight to reason and skip the halakhic sources. Anyone can grasp the common-sense problem on their own.

Bottom line: I find it hard to believe that there is a posek who would say that if the Knesset legislates a personal law it has violated halakhah. Such a law is not binding because, in terms of democratic-legal thought (common sense), it is not binding; consequently, the rule of dina de-malkhuta does not apply to it.

[1] Of course, one could have legislated a law against atrocities without mentioning the Nazis by name. Still, there would have been room to say that this is personal legislation in disguise. See below on this.

[2] See there and in the Midah Tovah essay for Parashat Va’era (2007), where I discussed the implications of this distinction for the laws concerning God’s names and their appellations.

[3] The Nazis and Nazi Collaborators Law is perhaps an exception in this regard (as it is also in its retroactivity).

[4] On this point it is interesting to hear a remark by former Supreme Court Justice Yoram Danziger, in a television series, about laws passed in the Knesset by a chance majority (the quote is taken from a critical article by Kalman Liebskind about that series):

“Laws are passed in the Knesset by a random majority, with sparse attendance,” explains Justice Yoram Danziger. “To come and say that every piece of legislation actually represents the public’s view in full, and therefore, for that reason alone—judges must not intervene? That does not impress me at all.”

He uses this statement to justify High Court involvement. Suffice it to say that, in my view, this statement is highly problematic.

[5] So too in halakhah: everything is permitted unless there is a halakhic prohibition. The burden of proof is always on the one who forbids. There are not a few people—including some poskim—who forget this.