By: HaRav Menashe Sasson
מאת: הרב מנשה ששון
“It has been said that democracy is the worst form of government[,] except [for] all the others that have been tried.” Winston Churchill.
What Mr. Churchill appears to have meant is that although imperfect, “democracy” is the best form of government that man has so far been able to devise. This understanding, however, leads naturally to the question: What is “democracy”?
One source defines “democracy” as “literally, rule by the people. The term is derived from the Greek dēmokratia, which was coined from dēmos (‘people’) and kratos (‘rule’) in the middle of the 5th century BCE to denote the political systems then existing in some Greek city-states, notably Athens.” Britannica.com [https://www.britannica.com/topic/democracy]
Thus, from its definition, we see that the concept of “democracy,” as understood in Western culture, is not a Jewish concept.
In a nutshell, “democracy” means majority rule.
But why should the majority rule? After all, there are many historical examples of times when majorities have chosen unwisely or have trampled the human and civil rights of minorities.
James Madison, a Founding Father and fourth President of the United States recognized, because of his role in drafting the U.S. Constitution, the dangers inherent in democracy. Prior to America’s ratification of its Constitution, Madison warned about the dangers inherent in the concept of democracy: “instability, injustice, and confusion . . . have in truth been the mortal disease under which popular [democratic] governments everywhere [have] perished. . . .” James Madison, Federalist No.10.
As a way to minimize the inherent dangers posed by democracy, while still retaining its virtue of governing in accordance with the will of a majority of its people, Madison proposed a republican form of government, stating that, “we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour.” Federalist No. 39.
In other words, a “republic” is a form of diffused or indirect democracy.
The Founders of America, from the Pilgrims to the signers of the Declaration of Independence, to those who ratified the U.S. Constitution, and a majority of its citizens, at least through the first century or so of that country’s existence, were, as a group, keenly aware of the existence of a Creator. The Pilgrims regarded themselves as the Hebrews of that era, considered their voyage across the Atlantic to be analogous to the Jews’ journey through the Wilderness, and considered America to be their Promised Land.
In drafting and ratifying the U.S. Constitution, America’s Founders endeavored to establish a government and laws that were modeled on the framework, as they understood it, which is set forth in Tanakh. Thus, in keeping with the pasuk “the Lord is our judge, the Lord is our lawgiver, [and] the Lord is our king,” Yesha’yahu 33:22, it’s not surprising that the U.S. Constitution divides the powers of government into three branches, legislative, executive, and judicial, much like Tanakh describes.
In order to guard against the dangers of majority rule, that is, the dangers of democracy, the U.S. Constitution is a document which is quite anti-democratic in many respects: It seeks to limit the powers of government by, among other things, dividing those powers into three co-equal branches; enumerating, and thereby limiting, legislative powers; and articulating certain actions which government may not take (Bill of Rights). However, notwithstanding these constitutional restraints, the second President of the United States famously said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams.
Medinat Yisra’el (the State of Israel) is currently considering certain reforms to its judicial system. Broadly speaking, the proposed reforms fall into three categories: Judicial Review, Appointment of Judges, and the Scope of the Attorney General’s Authority. Not surprisingly, some of the proposed reforms are being vigorously and vocally opposed by certain persons, both inside and outside of the Israel government.
The United States, a non-Jewish country, was founded on Jewish principles and ideals. Prior to largely abandoning most of those principles and ideals, the United States was, arguably, the most successful democracy in history. Medinat Yisra’el is a self-proclaimed democracy and Jewish state, albeit one that was neither founded, nor currently based, on Torah principles. Notwithstanding the vastly different backgrounds of these two countries, perhaps Medinat Yisra’el could benefit from some of the wisdom which was originally used to draft the American constitution and laws, while discarding that which has caused the United States to depart from Torah principles and ideals.
From this point of departure, we now turn to a discourse on the judicial reforms which have been proposed for Medinat Yisra’el.
The power of a court to invalidate a law by declaring the law to be in conflict with some provision of a constitution or other superior law, known generally as the power of Judicial Review, is not a judicial power which is essential to the performance of judicial duties. Courts which lack the power of judicial review still possess the ability to adjudicate cases; they simply lack the ability to declare a law invalid.
The U.S. Constitution, for example, contains no written grant of authority for American courts to exercise the power of judicial review. Indeed, prior to the U.S. Supreme Court, in the year 1803, conferring upon itself the power of judicial review when deciding the case of Marbury v. Madison, the power of judicial review did not exist in American jurisprudence. Similarly, Israel’s quasi-constitutional Basic Laws do not grant the Israel Supreme Court the power of judicial review. Nevertheless, in a manner similar to that of the U.S. Supreme Court in Marbury v. Madison, the Israel Supreme Court, in a 1995 decision in a case involving Mizrahi Bank, claimed for itself the power of judicial review.
In addition to conferring upon itself a general power to declare legislation invalid, the Israel Supreme Court has gone infinitely further by also conferring on itself the power to declare an act of government invalid simply because a majority of the court’s judges deem the act to be “unreasonable.” As with the power to invalidate legislation through the use of judicial review, neither Israel’s founding, nor governing, documents grant the Israel Supreme Court the power to invalidate the actions of the Israel government, let alone to do so simply because the Israel Supreme Court considers those acts to have been “unreasonable.”
The folly of the Israel Supreme Court’s reasonableness doctrine is illustrated by that court’s January 18, 2023, ruling, which held that Aryeh Deri is ineligible to serve as a member of the Knesset (parliament) and that the Prime Minister therefore must dismiss Deri from the Knesset, despite Deri having been duly appointed to the Knesset by the political party of which he is a member. In support of its ruling, the Israel Supreme Court explained that Deri’s appointment to the Knesset was invalid because such appointment would be “unreasonable” in light of Deri’s past criminal convictions, which include both a 1999 conviction for bribery and a 2022 conviction for tax fraud, in which Deri reportedly represented to the criminal court, as part of a plea agreement, that Deri would retire from politics.
The Israel Supreme Court might very well be correct that it is “unreasonable,” in light of Deri’s criminal convictions, to allow Deri to serve as a member of the Knesset. The problem, however, is that “reasonableness” is not the legal standard, as set forth in Israeli law, by which the eligibility or fitness of a Member of the Knesset is to be determined. As the U.S. Supreme Court said when it seized for itself the power of judicial review, “It is emphatically the duty of the Judicial Department to say what the law is.” Marbury v. Madison, 5 U.S.137, 177 (1 Cranch) (1803). Implicit in this statement, of course, is the idea that it is emphatically not the duty (or right) of the Judicial Department to create law or to say what the law should be. Likewise, it is emphatically not the province of courts to rule based on what judges personally consider to be reasonable or unreasonable.
The important differences between the U.S. Supreme Court taking for itself the power of judicial review and the Israel Supreme Court taking for itself the power of judicial review, including the extraordinary power to invalidate government acts which the court deems to have been “unreasonable,” are that:
(1) The United States, unlike Israel, has a constitution which can be amended through the democratic process. Thus, if the U.S. Supreme Court declares a law to be unconstitutional, there are processes, set forth in the U.S. Constitution itself, to amend the Constitution through use of the democratic process. Israel, on the other hand, currently lacks both a constitution and a process whereby the elected members of government can, in effect, overrule a decision of the unelected judges who sit on the Israel Supreme Court. Another of the judicial reforms which is now being considered by the Knesset is legislation known as an “Override Clause,” which, if passed into law, would provide the elected members of the Israel government with a procedure to overrule a decision of the Israel Supreme Court.
(2) Unlike the Israel Supreme Court, the U.S. Supreme Court has never claimed for itself the general, and extra-constitutional, power to invalidate government acts on the ground of “reasonableness.” (The U.S. constitutional ban on “unreasonable searches and seizures,” which is found in the Fourth Amendment to the U.S. Constitution, is not comparable to the “reasonableness doctrine” established by the Israel Supreme Court. Most importantly, the Fourth Amendment to the U.S. Constitution, unlike Israel’s general “reasonableness doctrine” was adopted through the democratic process. Also, the Fourth Amendment’s ban on “unreasonable searches and seizures” is, by its own terms, both narrow in scope and applicable only to government’s conduct vis-à-vis non-governmental persons and entities. Israel’s “reasonableness doctrine,” by contrast, is a judicially-created doctrine which claims for the Israel Supreme Court an unconstrained power to invalidate any and all acts of government which the Israel Supreme Court deems “unreasonable.”)
Thus, unlike the Fourth Amendment to the U.S. Constitution, Israel’s “reasonableness doctrine” is nothing more than an undemocratic judicial creation which was wholly constructed and implemented by the Israel Supreme Court, and which has absolutely no basis in law or the democratic process.
In conclusion, courts are fully able to perform their role of deciding cases without possessing the power of judicial review, that is, the power to invalidate laws. Thus, there is no imperative to grant a court, or allow a court to seize for itself, the power of Judicial Review. However, in legal systems which are based on a constitution (which cannot be changed by the judiciary), the power of judicial review does not present a threat to democracy or liberty, as long as the people, through their elected representatives, have the right and the power to amend their constitution.
Appointment of Judges
It should, but apparently does not, go without saying that, in a democracy, (unelected) judges should not have any role whatsoever in the appointment of other (unelected) judges.
Israel’s proposed judicial reforms, which address the appointment of judges to the Israel Supreme Court, would, if passed, still allow sitting judges to have some input on the appointment of proposed judges. Thus, the proposed reforms, as applied to the appointment of judges, do not go far enough to reform Israel’s system of judicial appointments.
Authority of Attorney General Legal Opinions
On February 2, 2023, the Israel Attorney General sent a letter to the Prime Minister which purported to order the Prime Minister to not involve himself in the legislative process relating to pending proposals for judicial reforms.
As with the appointment of judges, it should, but apparently does not, go without saying that, in a democracy, unelected attorneys general should not presume to dictate the legislative actions or inactions of the elected members of a government.
An elected government official may request a legal opinion from an attorney general, or even receive from that attorney general an unsolicited legal opinion; however, as with any attorney-client relationship, the client must be free to wholly disregard the advice of counsel, regardless of how foolish disregarding that advice might be.
More than a decade and a half ago, an esteemed Jewish-American jurist and professor of law wrote, “Israel is an immature democracy, poorly governed; its political class is mediocre and corrupt; it floats precariously in a lethally hostile Muslim sea; and it really could use a constitution.” Richard A. Posner, “Enlightened Despot (reviewing Aharon Barak, The Judge in a Democracy (2006)),” New Republic, April 2007, at p.53.
Unfortunately, not much has changed since 2007. Although the judicial reforms which are currently under consideration will, if enacted, undoubtedly benefit Medinat Yisra’el, what Medinat Yisra’el could really use is a constitutional convention, which would fully and completely replace Medinat Yisra’el’s current “Basic Laws” with the Jewish Constitution, that is, with the Torah. Only then will “Israel” truly be a “Jewish State.”
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