The Foundation for Constitutional Democracy

05-Jul-1999

10 Short Position Papers - VI

Filed under: Supreme Court/Judicial Papers — admin @ 1:43 pm

VI - A Model for Israel’s Supreme Court
Prof. Paul Eidelberg

Israel’s Supreme Court is a creature of the Knesset, and the Knesset is very much subservient to the Government, i.e. the Cabinet. In principle, and for the most part in practice, the Court lacks the power to adjudicate governmental acts of questionable legality. As a consequence, previous governments of Israel have at times ignored some of the basic and even criminal laws of state—or so it has been maintained by eminent Israeli and American law professors.

Needed in Israel is a Supreme Court comparable to the American Supreme Court whose power of “judicial review” vis-à-vis acts of government is very much indebted to the Torah, specifically, the (Great) Sanhedrin.

The Sanhedrin is the supreme organ of governance under the Torah. Consisting of 71 judges, the Sanhedrin combines judicial and legislative powers and may even bring the king to justice on a suit brought against him by a private citizen. The judges must not only be expert in the all-embracing laws of the Torah, but well-versed in many branches of science, including astronomy, mathematics, logic, biology, and medicine. They must possess knowledge of non-Torah doctrines and practices so as to be able to deal with cases requiring such knowledge.

If only to maximize public confidence in their decisions, they must be of good lineage: Kohanes, Levites, and Israelites having a reputation for wisdom and reverence. They must be of spotless character (even as youth, so as not to give cause for recrimination). They must be of mature age, imposing stature, good appearance, and free from all physical defects—again to command respect and authority. An extremely old man or a man who is childless cannot be a judge because he is apt to be wanting in tenderness. A member of the Sanhedrin must be kind and merciful.

Unlike other legal systems, the administration of Jewish law is not only highly decentralized, but the autonomy of local authority coexists with the sanction of universal principles of justice. The rulings of a local court are binding for the particular town or community and cannot be challenged by any other court however superior its rank or area of jurisdiction.

This “federalism” reflects the idea that the twelve tribes of Israel—think of them as states of the American Union—individually and collectively, constitute a complete and self-sufficient totality. Jewish law thus allows for a great deal of diversity, constrained and rendered harmonious by the judges’ profound knowledge of the Torah’s organizing principles.

Furthermore, when principles of Jewish law are applied to new problems, it is not done by mere fiat. Generally speaking, before a ruling is accepted as authentic and authoritative, i.e., consistent with the Torah, it must be endorsed by a majority of the leading scholars. This “legislative” process often occurs independently of any established judicial body!

Such is its dedication to truth and justice that a court may sometimes consult and be guided by an eminent scholar (who, incidentally, may be residing in a different country). Conversely, a particular court may enjoy unquestioned authority by virtue of the recognized superiority of one or more of its members.

This absence of institutional rigidity is a consequence of the fact that Jewish law is not the exclusive preserve of professional jurists or of any ecclesiastic elite, but of the people, including those of humble occupations. “You are standing this day, all of you before the L-rd your G-d: your leaders, your tribes, your elders, and your officers … from the hewer of your wood to the drawer of your water” (Deut. 29:9-10).

All the people of Israel are to be more or less learned in the laws which, after all, are to guide and elevate the conduct of their every day life. “This book of the law shall not depart out of your mount, but you shall mediate therein day and night, that you may do according to all that is written therein” (Joshua 1:8).

One of the reasons why Jewish law is and can be the property of the people is that, in contrast to Western law, it is phrased in concrete and familiar language, and not in abstract and impersonal ideas. Because Jewish law is rooted in ordinary experience, and because the Hebrew language is unequaled in its simplicity, brevity, and clarity, a Torah community does not require a professional class of lawyers. The people themselves are educated in the law, which is why the rule of law and hatred of tyranny have ever characterized the Jewish people throughout history.

Obviously Israel is not going to adopt, in the foreseeable future, a judicial system that renders lawyers obsolete. But there is no sound reason why Israel should not have a Supreme Court comparable to that of old, provided it respects the Jewish tradition. Hopefully, Binyamin Netanyahu’s distinctively Jewish electoral victory will have a salutary influence on the present Court and lead to constitutional reform, hence to his everlasting glory.