Q&A: Can the High Court of Justice strike down a Basic Law?
Can the High Court of Justice strike down a Basic Law?
Question
Hello Rabbi,
Can the High Court of Justice, in your opinion, review Basic Laws? And if so, who authorized it to do so?
Best regards,
Answer
Indeed, this is more problematic than striking down an ordinary law, and still a Basic Law can also be struck down. For example, if it was enacted without authority or through an improper procedure. On more innovative grounds, one can also ask whether it is reasonable in relation to the values of society. Although that is a vague and dangerous criterion, we would not want the High Court of Justice not to strike down, say, a Nazi Basic Law, or a Basic Law that abolishes democracy or gives the prime minister eternal rule. Once we determine that the institution that reviews legislation is the High Court of Justice, it must carry out that review on our behalf. And that is so even if it was not explicitly authorized to do so. Just as they strike down administrative decisions and perhaps also laws on grounds such as proportionality and reasonableness, there is no principled obstacle to doing so with respect to unreasonable and disproportionate Basic Laws.
Something like this is the Sages’ determination regarding their own powers. Who authorized them to do that? The logic that says there is no one else who will do it.
Clearly such a step requires great caution, but one should not rule out such action in a categorical way.
By the way, by the same token I have said in the past that the demand that Bibi say he will obey every decision of the High Court of Justice is demagogic and biased. If, in his view, the Court is exceeding its authority, he is not supposed to obey it. The High Court of Justice also has no license to run wild and do whatever it wants. That is a dangerous conception, and the slippery slopes are obvious, and still this is the truth and there is no escaping it.
In general, there should be independence between the branches of government, and one aspect of that is that each of them does not always automatically accept the authority of the other—not at any price and not without limit. The court and the executive branch also have an independent standing, and they cannot be absolutely subordinate to another branch. Likewise, the High Court of Justice cannot be absolutely subordinate to the Knesset either, so that it gets to decide whatever it wants and also what the Court is allowed to do. That is not separation and independence of powers. So who will decide? The court itself (compare the authority of the Sages).
The idea that it is possible to determine the conduct of society and its institutions by means of a set of rigid rules is naive. No one really accepts that without limit, and statements on the matter are usually a product of one’s position. There is common sense, and there are reasonable balances, even if they are not explicitly anchored in rules. On this matter, see columns 48–49.
Discussion on Answer
Obviously that is the institution. https://he.wikipedia.org/wiki/%D7%91%D7%99%D7%A7%D7%95%D7%A8%D7%AA_%D7%A9%D7%99%D7%A4%D7%95%D7%98%D7%99%D7%AA
The Sages do have a competing institution: the Torah / the Holy One, blessed be He. That is the legislator. The court too is chosen by the public, though not through elections but through the political system. That in itself already gives the political system an advantage, and that is certainly no reason to give them yet another advantage.
My question was whether, in your view, the court is not supposed to strike down a Nazi law or a law that abolishes democracy or grants someone eternal rule.
I think that in these two cases there is no strong ground for intervention. The legislative process was indeed problematic, but I am not impressed that this justifies such a blatant intervention by the court. Deferring the law’s effective date is, however, a proportionate and reasonable intervention, and I assume that in practice nothing beyond that will be done regarding incapacity. Regarding the reasonableness doctrine, in my assessment nothing will happen, and as stated, nothing should happen either.
As I understand it, the Sages come only to interpret the Torah / the Holy One, blessed be He, and not to disagree with Him—unlike the court, which from what I understand you to be saying is supposed in certain cases to come out against the Knesset, as with a Nazi law. If the Holy One, blessed be He, had commanded a Nazi commandment, I assume the Sages would not have opposed it—for example, the obliteration of Amalek including women and children. On first thought, I would have expected the court to relate to the legislation of the public as to a commandment of the Holy One, blessed be He. That is, even in a case where there is a Nazi law, it is not the court’s role to strike down that law, but only to interpret it as best it can. It doesn’t seem to me that fighting a Nazi law should fall in the court’s sphere, but rather in the public/political/civic sphere.
A naive description. The Sages changed and nullified quite a few Torah laws (such as the stubborn and rebellious son). Regarding the role of the court, I disagree—at least in extreme cases.
Is it legitimate to nullify laws that the Holy One, blessed be He, commanded!?
Are you doing the will of God or the will of man?
Also in light of Israel’s governmental structure—of how Basic Laws are enacted—it is even clearer why the High Court of Justice has authority to intervene (otherwise you give unlimited power to the government, which in any case already has insane power in our governmental structure). Beyond that, there are also Basic Laws that are pure corruption, like the Basic Law passed to let Deri be a minister. If there were no solution on the administrative level, would you expect the High Court of Justice to keep quiet because it’s a Basic Law?!
Anonymous,
The nullification in Jewish law and also in law is done under the heading of interpretation (in an expanded sense). The Rabbis say that it cannot be that the Holy One, blessed be He, seriously intended for us to stone a stubborn and rebellious son, and therefore they determine that this passage is not operative Jewish law. De facto, that is nullification. So too the court says that it cannot be that the public authorized the government to take steps against its values and interests, and therefore they strike down the law.
Okay, so if I understand you correctly, you agree that the role of the court is to interpret; it’s just that you distinguish between interpreting the will of the Knesset, who are the representatives of the public, and the will of the public itself (where there may be a difference between them). So if there were a referendum on a Nazi law and the public voted in favor of it, would you agree that the court should respect such a law? In addition, if you claim that it cannot be that the public authorized its representatives to take steps against its values or interests, why not simply conduct a poll, as is done in elections, regarding the incapacity law or some other law facing possible invalidation, and determine the will of the public itself and not only of its representatives? Why is the discussion conducted at all through the lens of legal reasoning and not through the empirical lens of what the public wants?
There are situations, such as the adoption of Nazi legislation, in which the rules of the game have been broken. Alternatively, the value of preserving the rules of the game is overridden by larger and more important values. In such a situation, everyone is supposed to act against the regime, and the court is no exception.
Referendums have major drawbacks, and not for nothing are they used sparingly. But in principle that is correct. The question is also what kind of majority is required in order to create a new constitutional reality. Just any majority is not enough.
You don’t have to hold a referendum; you can conduct a poll. But it seems that nobody even considers trying to clarify the public’s will before striking down a law—not by a poll and not by a referendum. I assume that’s because both sides understand that the public’s will is not different from the will of its representatives in the Knesset, so there is no point in trying to clarify what the public wants. It seems that the left thinks that even though the will of most of the public is X, that still doesn’t give them the authority to do as they please. This is probably about the tyranny of the majority. But from what I saw on Wikipedia, the idea of the tyranny of the majority is meant to protect against harm to basic human rights or minority rights. What does that have to do with the incapacity law or appointing Deri as a minister?
The legislators also did not hold a referendum. Factually, most of the public opposes Basic Laws passed without broad agreement. The whole claim is that Basic Laws require broad agreement. Beyond that, a referendum is not a complete solution, because an ordinary majority is not enough, and there is no clear measure of what would be enough.
I explained the issue of the tyranny of the majority in a long column. There I explained that it is not concerned only with harm to a minority but also with agreements about the rules of the game. Appointing a corrupt person as a minister is a violation of the rules of the game.
Regarding what you wrote—“Once we determine that the institution that reviews legislation is the High Court of Justice”—have we in fact determined such a thing? Where? And what are the limits of that review?
As for the comparison to the authority of the Sages, in the case of the Sages they have no competing institution; they operate in a complete vacuum, unlike the court. Intuitively, I would have expected the Knesset to be the supreme authority over all the others, since it is the only one elected by the people, and it should determine the powers of the other branches.
And specifically regarding the Basic Law on incapacity and the reduction of the reasonableness doctrine—do you think the High Court of Justice should intervene in them?