My followers are usually very interested in Israel and know there is quite a controversy about judicial reform in Israel. The divide is intense. To put this in a better perspective, it is worthwhile to review the system in the United States.
The United States is not technically a democracy but a democratic republic. This means that the popular vote is not the all-powerful final say on everything, but there are checks and balances. The Founders had great concern with the corruption of power. They recognized that a demagogic leader could gain the popular vote and lead the nation to tyranny. Therefore, they incorporated many checks to power; the executive power, the President, the power of the Congress, the power of the Court and the power of the electorate.
They established the Constitution, which is hard to amend. Thus, the democratic electorate, the Congress, the Executive, and the Courts must function within the boundaries of the Constitution and its famous Bill of Rights. Secondly, they established a bi-cameral legislature with the most democratic institution, the House of Representatives, and the more limited democratic Senate whose senators were elected by the state legislatures and then later by the people of the states. This protected the less populous states from being controlled by the more urban populous states. Democrats today speak against this since these senators from more rural states sometimes frustrate their agenda, but this was as the Founders desired. Thirdly, the President was limited in his function according to the Constitution to carry out the rule of laws and the legislation of the Congress. He could not make laws. He was given greater freedom with regard to foreign policy, but Congress alone could declare war. He was elected, not by the popular vote, but by electors chosen by the States. In so many ways, there were limits to power. The Courts and the Supreme Court were to apply the laws and could review laws as contrary to the Constitution, as well as noting regulations contrary to the Law. The huge issue today is the recent history of the Supreme Court, which has legislated through a broad view of interpretation contrary to the intent of the Constitution. The biggest example was Roe vs. Wade on abortion, but there are many more examples.
In Israel there is no constitution. The reasons were several. Some thought Israel would be like England with a common law tradition rooted in western democracies. Many Orthodox Jews did not want a constitution but only the Law of Moses. Instead of a Constitution, Israel passed Basic Laws that were not to be changed. Other laws could only be accepted, if they were in line with Basic Laws. These Basic Laws became a quasi-constitution. The Supreme Court of Israel was to judge laws on the basis of Basic Law, and if found to be not consistent to Basic Law, they could declare those laws unconstitutional. However, they also decided that they could judge laws by the standard of accepted general understandings of rights and laws in the consensus of Western societies. They also judged on the criteria of reasonability. The right-wing leaders in Israel really push back on this idea since what is and isn’t reasonable could be subjective. Unlike the United States, judges are not appointed by the Executive with confirmation of a Senate. In recent years we have seen the weakness of the U. S. system since Democrats and Republicans will not vote for qualified people due to their judicial philosophy. In Israel, new appointees are made by a selection committee and not politicians, but heavily dominated by other judges and lawyers. In this way, many on the right think that the Court has too much power.
However, if the Court is to be a check on power, and one of the keys to separation of power, then the present proposals of M. K. Levine go way too far. He will open Israel to democratic tyranny since he proposes a simple one vote majority of the Knesset to overturn any Supreme Court decision. Basic Law is as well in flux. Why? Because only a majority was needed to pass Basic Laws, and a majority can cancel it. It would be far different if Basic Law was passed by a 2/3 majority and could only be changed by a 2/3 majority. Alas, that is not the situation. The present proposals also give the Knesset the appointment power and the overturning power for Court decisions. This could lead to democratic tyranny. The pendulum is swinging too far. Would that we could resurrect Jefferson, Madison and Adams to give wisdom to our leaders here.
We need to pray for Israel that they will embrace good judicial reform. First, to embrace a new foundational law that only 2/3 can establish or reverse Basic Law. This would require a special legislative semi-constitutional body that could establish this one principle for stability. Secondly, that the Court would be restrained on the reasonable standard, and that the Court could be overruled by 2/3s. Maybe it could be 2/3 on its Basic Law foundation for rulings and 60% for overturning the reasonable clause. Then judges could be appointed by some expert judges and by the Knesset together where there would have to be agreement by two bodies for appointment. Reform is needed, but minority rights and stability require that we avoid the democratic tyranny of the Levine plan. Can you imagine that every new parliament could, by majority, just reverse all that was passed as Basic Law by the previous parliament and could also reverse the reversals of the pervious government?