You were absolutely right that my intention was to ask you in order to understand what you meant, not just to make a remark to you. My wording was definitely lacking.
I’ll admit without embarrassment that I didn’t fully grasp what you meant by the definition of the rules of the game.
On the one hand, you argue that excessive childishness leads one to think the rules of the game are rigid and not flexible/changeable,
and on the other hand, you argue that in this case the government is changing the rules of the game with excessive aggressiveness.

What follows from the above is that the rules of the game are elastic. You can stretch them, but not too much.
And again I’m falling into childish misunderstanding: are there rules for elasticity? How does the objective observer determine the permitted degree of elasticity?

It doesn’t seem logical to me that the rules of the game work by the “see if it works” method. If the other side stayed quiet, does that mean it’s within the elastic range?
When Aharon Barak determined that a Basic Law is a constitution (or has force like that of a constitution), and on that basis he can invalidate laws—that is still within the elastic range despite the enormous novelty, whereas the government’s determination that since a Basic Law is a constitution, the court cannot discuss its legality at all—that is breaking the rules of the game.

In addition, I’d be glad if you could explain the limits of the court in light of your approach described above:
1. From where does the court draw its authority to adjudicate?
2. Is there any limitation at all on the court, and who has the authority to define that limitation?

And an extremely important question: isn’t the work of law supposed to be completely objective, and subjective questions simply not legal questions and therefore not justiciable?

And again, sorry if excessive childishness slipped into me; it really isn’t intentional.

“I’ve written more than once that it is far more important to limit the government than the court.” Actually, the Rabbi has written more than once that it’s preferable to limit the court, which was not elected by the people and does not stand for reelection…

By the way, a nice anecdote is that Germany is one of the countries where the constitution explicitly authorizes the court to intervene against anti-democratic constitutional amendments. That actually connects pretty well to the legal approach Rabbi Michi mentioned. In any case, all the talk about an unconstitutional constitutional amendment is a much more meta-legal discourse than a formal legal one (like: from where does the Knesset get the authority to legislate laws?), and so too today’s public debate. So I’m a little amused by the discourse of the Kohelet Forum and friends, who cling devoutly to a kind of legal formalism (“Israel has no eternity clause”), as if in order to limit a corrupt government you really need formal legal authority. Beyond that, there’s this unclear line of talk claiming that unconstitutional constitutional amendments without any constitutional authority for that (an eternity clause) exist only in second-tier countries like India, Colombia, etc., and not in Finland and Canada, those proper countries we’d want to resemble. But as Rabbi Michi always says—and I think quite rightly—democracy is first and foremost a governing culture. With a governing culture like Finland’s and Canada’s, you really don’t need intervention in the constitution. But in countries with a more backward and corrupt governing culture, when they establish a constitution that enables Deri to be a minister, then even without judicial authority that horror should be struck down. Obviously in Canada there won’t be unconstitutional constitutional amendments with a democratic and advanced governing culture. What kind of bizarre argument is that? In order to resemble Canada, we first need to adopt its values and governing culture, and then the constitutional mechanisms will naturally be similar. But not to say, “In Canada there is no intervention in the constitution,” while adopting governing norms of Bangladesh.

“To limit a corrupt government,” “when they establish a constitution that enables Deri to be a minister, then even without judicial authority that horror should be struck down”
Who says the government is corrupt? That Deri is a horror?
Your own value system, which in your view is absolute and binding on everyone.
It seems that what you really want is a monarchy, not a democracy.
In your view there are higher values (which the people did not determine and agree to), and there is someone who can impose them on the people even though the people gave him no authority to do so—is that your intention?
Do you in fact agree with the legitimacy of religious coercion in running a state?

Hello,
You wrote: “On the one hand, you argue that excessive childishness leads one to think the rules of the game are rigid and not flexible/changeable, and on the other hand, you argue that in this case the government is changing the rules of the game with excessive aggressiveness.” Why is that “on the one hand” and “on the other hand”?
When you ask whether there are rules for elasticity, you are falling into the same childish error. For you, rules are a rigid matter, and therefore by definition there are no ‘rules’ for that elasticity. There is intuition and common sense.
And by the way, signals from the other side are an excellent indication. When you see that there is a substantial group in the public expressing severe protest, you understand that this is an extreme move. What’s wrong with that indication?
Aharon Barak did not determine what you wrote in his name, for two main reasons: 1. That is the simple meaning of a law enacted as a Basic Law, and of course there, unlike today, it had very broad agreement in the Knesset and among the public (and don’t bring me the actual majority in the Knesset, as the devotees of word games do). 2. The Knesset itself said so, and in the discussions there the possibility of invalidating laws was explicitly raised (the Haredim and the religious wanted not to support it because of that). As far as I recall, a few years later it was even updated in legislation. But I won’t enter that demagogic argument again here. As you recall, we don’t like falling into word games.
1. The court is a governing institution that draws its power from the public. In our system there are no elections for the court, but in other systems there are. That doesn’t really matter, because as a governing institution it draws its power from the public, even if appointments to it are made according to other rules. Those rules represent the opinion and agreement of the public.
2. It is within the authority of the Knesset, up to the point of common sense (such as retroactive legislation and the like). And don’t drag us back into childish loops. It is exactly like the question of who determined the authority of the sages in Jewish law (hint: the sages). At the top of every pyramid there is an institution that determines its own authority. And when there are three apexes (branches of government), then there are three such institutions. If one of them is completely subordinate to the other two, then there are not three branches here. And that does not mean the court does not operate according to the laws, but it has its own rules beyond the laws.
It seems to me we’ve exhausted the discussion.

In practice, what I managed to absorb is that there are no binding rules, and basically might makes right.
Wonderful.
I’ve learned that it is childish to think there are laws and boundaries (or in your phrasing, that law and boundary are rigid),
and childish to think that a branch cannot take authority it was not given (or in your words, that each branch determines its own powers).

And that in fact the whole cluster of laws in the state is just a collection of children’s games.

And the way a group of individuals is governed is basically “each man does what is right in his own eyes.”

As the Attorney General said, sometimes you can block roads (or something like that).
My friend, arbitrariness (what you call common sense and intuition)—you are advancing a line of thought of anarchy. And I can’t understand the rationale behind it.
You are basically saying that if your common sense and intuition tell you that the couch in my living room should be on the east side, then you are entitled to move it there without any permission from me.

To sharpen your position in the test of reality, I’d be glad if you would express your view:
A party that won 80% of the voters’ votes on the basis of a platform that elections would be changed to once every 5 years,
and it enacted a law changing the frequency of elections to every 5 years.
And the Supreme Court invalidated the law because this is a substantial harm to democracy.

Should the government comply with the invalidation or ignore it?

Sabbath שלום.

What nonsense the Rabbi is writing. It’s unbelievable what a position can do and how far it can drag a person into lying—even someone like Rabbi Michi, who is supposed to have basic intellectual integrity. The Rabbi is unbelievably brazen.

In fact, from the very first moment that the Supreme Court took powers for itself unlawfully, many people objected to those changes in the rules of the game. Because its interpretation of the law was of course a lie and it invented things that are not written in the law (according to the intent of the legislator).

But because they respected the system, they waited for the moment when it would be possible to regulate fully and explicitly the meaning of the law (not that it would help against progressive postmodern judges, for whom no text has objective meaning anyway…). And it took time until all the factors on the right finally understood this. In fact, the Rabbi is saying that because the people were robbed little by little, they are not allowed to take back their theft all at once—and in addition only with the thief’s consent…….

Unbelievable.

Sorry for my ignorance, what “position” does he have? It’s hard for me to believe he prefers Lapid/Gantz/Liberman/Hayut/Fogelman—or perhaps I really am childish and naive.

From what’s written here, Michi could really be a lawyer. Someone who talks in circles in order to distort simple truths. Of course before every system of rules there is common sense. But here common sense, even before the laws, is on the side of the reform’s supporters.
In truth there is no need for any reform at all. The court made decisions without authority the people gave it. No one in the world thought invalidating laws would in practice become a tool for imposing an agenda and worldview. And a tool for legislating laws (invalidating a law is legislation, and creating doctrines and purposive interpretation is legislation) and for governance. The government can simply ignore it and issue instructions.

The courts in Israel are corrupt at levels no government has ever been corrupt like them. It disgusts me that a person can support people who invented the concept of “purposive interpretation” through so many twists and turns (childish arguments, etc.)—courts that are allowed to give themselves powers by virtue of their very existence even though they were not elected (they actually were elected, and the government was not really elected….). Revolting. I wish you’d leave. Get out of the country. A liar like you has no place among the Jewish people. You disgust me. “The remnant of Israel shall do no wrong, and no deceit shall be found in their mouths.”

To Shalom,
Of course he prefers them. He hates all the Haredim and also Bibi. And also the Hardalim. He even prefers the Arabs (and even Balad!) over them—search here on the site. He has no loyalty to the Jewish people at all.

You’ve gone way too far!!!
First of all, one needs loyalty to the truth!! If the Jewish people are committing wrongs, then truly there is no need to support them.
An idolatrous city must be destroyed even if they are Jews!
It seems clear that he is mistaken, but whether intentionally or because of hatred of the Haredim and their path / Hardalim at a subconscious level, I do not know.
But his answers really are strange relative to the sharpness and talent he shows in other subjects.
It seems to me that what he himself claims about great scientists is really happening with him—how they raise philosophical theories with such amateurishness.
So too his views in political science and their application to the world of law are rather amateurish.
But all the same, the give-and-take with his talent can lead to good clarity on the matter.

To Shalom,
Are you Haredi?
In any case, in this field Michi’s talent is in the service of falsehood. This is not an amateurish view. It’s just pure madness. “A court that draws its power from the people, which did not elect it (to make the kind of decision it made), and which has a veto on the appointment of judges, and which as a branch of government can grant itself authority…..” In inventing such nonsense, its only competitors are the Israeli courts and the Supreme Court. It’s literally Baron Munchausen trying to lift himself up by pulling his own hair. Like the claim (made in complete seriousness) by the feeble-minded Meridor, who argued that the Supreme Court has authority to invalidate Basic Laws because it (the Supreme Court) already said so in the past…..

Go learn what the Overton window is. How you can slowly sell people insane things as truths.

To H,
Aharon Barak himself said more than once (for example in his interview with Mishpacha magazine, and I believe also with Roni Kuban) that everything the court under him allowed itself in invalidating laws was solely because the legislator authorized it (in Basic Law: Human Dignity and Liberty). And he added that the legislator is welcome to revoke that authority.

A few remarks on the Rabbi’s words:
“The court is a governing institution that draws its power from the public. In our system there are no elections for the court, but in other systems there are. That doesn’t really matter, because as a governing institution it draws its power from the public, even if appointments to it are made according to other rules. Those rules represent the opinion and agreement of the public.”
Such a description can also be applied—and has been applied—to hereditary monarchy. The king represents the public as a whole. In general, the entire institution of repeated elections is unnecessary when the institution of monarchy draws its power from the public. And I say, if already a king, then let’s go with the original king from the House of Jesse. It’s true that for 700 years we have had no official descendant of his, and if there are descendants with a paternal family tradition they are probably Iraqis or Syrians, who for today’s Ashkenazi racists are unacceptable—but if so, then let’s go all the way.

“The government makes masses of decisions every day that directly affect every area of our lives; the court does not make decisions but at most invalidates (except for a very few cases indeed), and in very small numbers.”
After the court invalidates something, its representatives in the executive branch—the legal advisers whom the courts crowned over the officials and the people’s representatives—will already prevent any other view on the grounds that it is unreasonable. In this system, the court doesn’t need to make many decisions; it only needs to focus on a few leverage points, after which the entire governmental system will align itself with its ruling.

“It is within the authority of the Knesset, up to the point of common sense (such as retroactive legislation and the like). And don’t drag us back into childish loops. It is exactly like the question of who determined the authority of the sages in Jewish law (hint: the sages). At the top of every pyramid there is an institution that determines its own authority. And when there are three apexes (branches of government), then there are three such institutions. If one of them is completely subordinate to the other two, then there are not three branches here. And that does not mean the court does not operate according to the laws, but it has its own rules beyond the laws.”
I am only quoting the Rabbi, who argues that the authority of the Talmud derives from acceptance by the people. The sages can decide whatever they want, but in the end the people have to accept it. And here the innocent question is asked: is there a way for the public, through its representatives, to say to the judges, “you have violated your oath to uphold the laws of the State of Israel and therefore you are no longer judges,” or will anything the judges do as the third branch be accepted—invalidating laws, neutering them through interpretation, deciding what is reasonable and what is not, and so on and so forth?

Yad,
1. Are you sure you thought for a minute before writing this absurd analogy? Ours is a democratic state whose institutions are chosen by the public. The court too is chosen by the public, just not directly but through the rules and mechanisms that the public (or its representatives) established. What does that have to do with a king and monarchy?
2. Same here. Think a bit about the degree of influence on our lives that the two branches have, and spare me the need to answer.
3. The Talmud has authority by force of the public, but the Sanhedrin does not. And the shaping of the Talmud’s authority is entrusted to the Talmud and the sages, not to the public.
It can, through its elected representatives. But not without broad agreement.

It seems a bit strange to say there are rules but they are flexible, and even the flexibility is flexible!
And it becomes really bizarre when the flexibility is always only on one side.

And in general the idea that there are 3 completely independent branches that determine their own authority sounds detached from reality.
I don’t know of a reality in which there are 3 drivers in one car. There has to be one.
And bottom line, you are basically denying the very trivial concept of a state governed by law.
According to your view, there is a branch here that is above the law. And it is so sad that a talented person like you is actually
laying foundations for anarchy supposedly resting on rationale.

To H,
You’re the one who makes me laugh. Someone who thinks the government is truly corrupt should take a weapon and get up and shoot the members of the government, and that’s that. There’s no point talking about limiting a corrupt government. After all, the great dispute among the people is precisely about whether the government itself is corrupt (or relatively corrupt compared to the corruption of the other side). There is no room to talk about limiting government by someone the people did not elect for that purpose, but rather to settle disputes and be entrusted with enforcement of the law. A court that wants powers to decide what justice is and what democracy is must receive directly, and for a limited time, the people’s trust (direct elections for all Supreme Court justices every four years), and peace unto Israel. There is nothing formalistic here from the Kohelet Forum. This was the unwritten agreement of the citizens of the state and the Jewish people among themselves when the state was founded, because that was the state of affairs that seemed good to everyone (except for a few lawyers whom nobody asked) until 1995. The elections that took place now were exactly about that: which corrupt person will run the state. The whole discussion here is about common sense and nothing else, without a drop of formalism. And Kohelet’s discussion too. The ones occupied with empty formalities are דווקא the jurists and your Supreme Court friends, who are trying to force what they think about the current government into some supposedly objective frame with meaningless mutterings. In fact, the government doesn’t need the reform at all; it should simply act as if everything Aharon Barak decided was never said, and the officials should each do what is right in his own eyes.

In addition, nobody cares what there is in Germany. What matters is what is happening here and whether it accords with common sense and truth. And the left here is simply either hypocritical and lying or extremely stupid. Really devoid of independent thought. I’m already tired of the word-juggling of people who think we are stupid and can be smeared with this garbage (maybe you’re busy convincing yourself).

If we’re talking about common law, all currents in Israel accept the approach that a governmental authority is forbidden to do anything for which it was not explicitly authorized. Therefore, in order to assume the authority to invalidate laws, the court needs explicit authorization. So even if we interpret the phrase “shall not be enacted…” as constituting a Basic Law, we still do not have an authority explicitly empowered to decide when a law contradicts a Basic Law. By necessity we must interpret this as an instruction to the Knesset. Even if we agree to the court’s authority to alter laws, we would still have to say that somehow the Basic Laws count as a constitution. If so, then one can no longer argue that they are not strong enough to withstand judicial review. If they are not strong enough, laws cannot be invalidated by virtue of them; and if they are strong enough, they cannot be invalidated.

And that is before we even talked about explicit authorization of the Knesset as a constituent authority (authorization that of course must come from the people). So “common law” is not some magic phrase into which you can put whatever you want. Otherwise you end up with anarchy, since everyone wants to insert different things under the cloak of common law.

These things are so clear and simple
that it just drives one crazy how a talented person can fall into these word games with no real content.
And even if we assume he is doing it deliberately, everyone can see it—so how can he think these word games will really persuade the other side? He who so champions independent thinking and detachment from any dependence on someone “smarter” than me, high self-criticism, tries to sell such nonsense that is utterly unable to define and distinguish between what is permitted and forbidden to one with authority or one without authority.
Could this be part of the spirit of progressivism that is penetrating even the rational camp and breaking all conventions, even those of rationality?

A. That is how monarchy was described in the Middle Ages. We are not talking about an Eastern despotic ruler but about a king who represents the public even without being directly elected. In his distinction between the law of the kingdom abroad, where Jews are exiles and not part of the public, and the law of the kingdom in the Land of Israel, where Israel dwells on its land, Ran describes this precisely. The difference between modern democracy and monarchy is not that one represents the public and the other does not, but that in modern democracy all officeholders are repeatedly elected anew.
B. And still, the moment every governmental decision duly given according to law needs the approval of a legal adviser that it is reasonable, in order to prevent a petition to the Supreme Court, the court effectively rules.
C. If you check right now, there is no way to remove judges, especially Supreme Court justices. They can make any decision and the public seemingly has no way to declare that they have betrayed their office.

A. I don’t live in the Middle Ages, and if you ask my opinion, I stated it.
B. Not true. Go and see what actually happens in practice, and on how many decisions the court affects and how much.
C. There certainly is a way. And even if there isn’t—that is what the public decided. That too is a decision of the public.

Shalom,
I identified from the beginning the fact that your mind is being driven crazy by this. It’s just a shame that you’re venting all of it here. I am not deleting your nonsense and that of your colleagues here only because of my allergy to censorship, which runs against my values, but my request is that you find yourself another stage for your craziness. You said what you wanted, and now spare us your catatonic repetition.

I apologize for causing pain; I really didn’t mean to.

Well then, now the public wants to “remove” judges. To change the method of selecting them. So that selection by the public will really reflect the values of the public in all its shades (like in parliamentary elections), since the courts decided to function also as politicians and policy promoters, and not merely have their selection be called “selection by the public.”

So what is there to oppose about that?