Q&A: Personal Law
Personal Law
Question
What is wrong with a personal law (for example, just a random example with no connection to current events, that Benjamin ben Benzion Netanyahu would not be able to serve as Prime Minister of the State of Israel)?
Theoretically, I can think of five problems: (a) a problem with the thing itself—it is invalid, period; (b) the personal nature is an indication of some other defect in that law; (c) harm to the general standing of laws in the eyes of the public (for some reason); (d) breaking the rules of the game that were implicitly agreed upon; (e) if personal laws are allowed, this will lead to other bad laws in the future.
In short: essence, indication, standing, agreement, slippery slope.
Could you please indicate which of these problems matter in your view, and to what extent (very important / important / nice to have), or perhaps whether there are additional problems?
You did write columns and explain it, but a more focused formulation would still help me.
Answer
As you mentioned, there was a column about this.
There are side problems, such as concern about unserious and hasty legislation, or retroactive legislation (which involves injustice, because people are supposed to know the law at the time they act). But I think the main problem is the discrimination in such a law. Either way: if there is a justified reason to forbid this to him, then the reason should be legislated, not a personal law (for example: legislate that anyone against whom an indictment has been filed cannot run for office). Personal legislation in such a case is discriminatory (because others against whom an indictment is filed could still run). And if there is no justified reason, then it is a discriminatory and unjust law toward that person (and his supporters).
One could argue that such legislation is just another form of struggle against a person, like any other political struggle that tries to pull various tricks to prevent his election. But this is a problematic use of law, which in my view ought to be outside the immediate political game (mainly because of the implications for the public’s attitude toward law in general).
Discussion on Answer
The demand to legislate a general law that will describe exactly who is forbidden is like expecting a broker who buys a stock to describe in a set of rules of thumb exactly the algorithm, so that it could be turned into software and make the broker unnecessary. After all, you yourself testified to us about casuistry and its branches. There is a rare cluster of events, and in this event they want to apply a new kind of law; that does not mean they are capable of formulating with legal precision the full set of considerations and their weights.
Who said they are decisive? It is one consideration like any other. I did not discuss its weight.
A casuistic law is not a personal law. The Mishnah is formulated casuistically—are names mentioned there? You can say that any person whose criminal background is similar to Netanyahu’s will not be able to run for prime minister. That is a casuistic formulation of a general law, because it deals with a group of people but does not define them in a positivist-deductive way. By contrast, a law that forbids this only to Netanyahu is a personal law.
Those are considerations, but why are they decisive? After all, every law has costs. Prohibiting crossing on red limits freedom of movement, and taxation harms property rights (I really do think it’s similar). So because of those considerations, is a personal law some kind of unconventional weapon? There are a few flaws in such a law, fine, so what’s the big uproar? You weigh the flaw in the law against its benefits.