What is the guiding light of Israel’s judicial reform efforts? While many oppose the way it’s being done by the Netanyahu government, most level-headed Israelis, like President Isaac Herzog, agree that judicial reform is needed. But to what end?
Two Israeli researchers, experts in Jewish legal heritage stretching back millennia, stress that judicial reform must adhere to Jewish principles as much as it does to modern democratic values.
Judicial reform in its current form is being carried out by the most religious government in the history of the State of Israel. So you’d expect more emphasis on Jewish religious legal principles. But not so, claim the researchers. They say that so far the architects of judicial reform in the Jewish state seem more driven by Republican Party politics than by Judaism.
Prof. Benny Porat is director of the Israel Matz Institute for Jewish Law at the Hebrew University in Jerusalem. Dr. Hagai Schlesinger is a postdoctoral fellow at the Safra Center for Ethics at Tel Aviv University.
Their article was published last Friday in the popular synagogue bulletin Shabtun.
In it they argue that the two men primarily behind the reform push, Justice Minister Yariv Levin (Likud) and MK Simcha Rothman (Religious Zionism), do not lean on Halacha (Jewish religious law), but rather a neoconservative worldview most commonly associated with the Republican Party in the United States.
“The aspiration to grant unlimited and unbridled power to a majority coalition deviates from basic principles that have developed in the world of Jewish legal heritage, especially regarding balances and restrictions on the authority of the community to enact its laws. As a Jewish state, and not only as a democratic state, this initiative is not in line with the fundamental rationality of the traditions of the Jewish community itself,” wrote Porat and Shlesinger.
In particular they are unhappy with efforts to strip the Supreme Court of the right to exercise “judicial review” of any law passed by the Knesset. Reform proponents argue that the unelected court is effectively determining Israeli law by striking down any legislation with which it disagrees, which it has done on numerous occasions. And that simply isn’t democratic.
But Porat and Schlesinger say that the sages recognized the importance of effective judicial review of the decisions of Jewish community leaders, in order to ensure they didn’t abuse the power entrusted to them. Of course, one of the ways this style of judicial review was carried out in ages past was to obtain the approval of leading rabbis, which we all know would today be immediately rejected by the secular masses.
The researchers insisted that judicial review of this sort was necessary in ancient Israel, in Diaspora communities, and in modern Israel to prevent the majority from exploiting minorities. This is in keeping with Biblical law stipulating that Israel must deal fairly and justly even with foreigners living in or visiting her land.
In short, the current judicial reform effort is, according to Porat and Shlesinger, in opposition to “the principles outlined by the sages of Hebrew law in that it allows the government to act as it wishes, while eliminating internal control mechanisms – something the arbiters of Halacha for generations feared and worked to prevent.”
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