The Foundation for Constitutional Democracy

Although Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he appears profoundly ignorant of its prerequisites.

The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet judge Barak contends that Israel’s Basic Laws should be easily changed. But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.

There is a more profound defect in judge Barak’s mentality: his judicial decisions are radically egalitarian. (more…)

I. Judge Barak’s Judicial Ignorance

ALTHOUGH Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he seems to be profoundly ignorant of its prerequisites.

The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet Judge Barak made the astonishing remark that Israel’s Basic Laws should be easily changed.  (The Jerusalem Post, December 20, 1995.)  But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.  Mutable laws, basic or not, cannot possibly inspire reverence for law.

Israel’s Basic Laws are in fact quite changeable.  (more…)

[Were it not for attorney Arnon Kemelman, who happened to give me two articles on Israel’s judicial system while I was vacationing in Safed, the present essay would not have been written. I am grateful to him for subsequently providing other source material. Needless to say, I assume full responsibility for the analysis and the conclusions of this essay.]

Introduction

Israel’s Supreme Court adjudicates thousands of cases a year affecting the political, social, economic, ethnic, and religious character of the State. It does so with only occasional reference to laws and moral principles drawn from the heritage of the Jewish people. No other court in the world ignores the legal history of its own people. The question arises: Can Israel endure as a Jewish state when its judicial system, which subtly influences every aspect of daily life, is deliberately and primarily based on non-Jewish law? Implicated in this question is the halachic status of Israel’s secular courts. Are they halachically Jewish or non-Jewish? (more…)

“The Constitution places the nation’s armed forces under the civil authority and jurisdiction, not of the judiciary, but of the Congress, and then the president, when properly acting as commander in chief,” the brief says. “U.S. courts consistently defer to the judgment of military leadership under the doctrine of ‘military necessity.’”

The U.S. Supreme Court ruled in 1955 that “judges are not given the task of running the Army,” and again in 1983, “centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns. …”

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. (more…)

Because of the anti-Jewish as well as anti-democratic tendencies of Israel’s Supreme Court, especially under the leadership of Chief Justice Aaron Barak, serious Jews have turned their attention to the Great Sanhedrin and the possibility of re-establishing this ancient institution. They know, of course, that no Sanhedrin can exist without the Temple, the Beit HaMikdash.

Moreover, and according to Maimonides, the building of the Temple presupposes the appointment of a king and the destruction of Amalek. But this means that the establishment of the Great Sanhedrin will require the advent of the Moshiach.

It’s commendable that some Jews are thinking in these terms, but no one should be under the illusion that establishing the Sanhedrin is comparable to establishing a rabbinical court. (more…)

by Ari Shavit
Ha’aretz Magazine 12 November 1999

Readers unfamiliar with the style of speech typical of the Israeli judicial system might think that the views expressed by Prof. Ruth Gavison in this interview do not deviate much from routine criticism. But her restrained tone, the understatement—so foreign to the usual Israeli dialogue—cannot conceal the fact that Gavison is assailing, with unprecedented ferocity, the attorney general, the State Attorney’s Office and the Supreme Court. The attack is all the more striking because it comes from one of the country’s senior jurists and leading experts in Israeli law. (more…)

Various people want to reestablish the Sanhedrin. With all due respect to the many fine rabbis in Israel, can we find 71 judges who meet the qualifications laid down by Maimonides in the Mishneh Torah?

As summarized in my book Beyond the Secular Mind, the judges must not only be expert in Torah, they must also be versed in many branches of science, such as astronomy, mathematics, logic, anatomy, and medicine. They must possess knowledge of many languages and 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, the judges must have 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. (more…)

by Prof. Paul Eidelberg

Those who criticize the Supreme Court for upholding the conviction of
Margalit Har-Shefi would do well if they would also emphasize that this is
the only court in the world that not only scorns the heritage of its own
people, but is also a self-perpetuating oligarchy. The critics should
advocate a democratic mode of appointing Supreme Court judges.

The Yamin Israel Party supports a proposal of the Foundation for Constitutional
Democracy, namely, that the President (with the advice of a nine-member
board consisting of three professors of law–who should be knowledgeable of
Jewish civil and criminal law–three rabbis, and three representatives of
the Israel Bar Association) nominate the judges, who should then be subject
to parliamentary confirmation.

Dec. 15. 1999 Arutz-7

The Knesset granted Supreme Court Chief Justice Aharon Barak a significant victory last night, when it endorsed the need for judicial review. MKs Dan Meridor (Centrist), Amnon Rubenstein (Meretz), and Ophir Pines-Paz (Labor) sponsored a resolution stipulating that the Knesset recognizes the democratic need for judicial review by the Supreme Court on laws passed by the Knesset, if they are in opposition to Basic Laws. The 36-27 vote was a reversal of a resolution accepted by the Knesset two weeks ago—by a 14-10 vote—calling on the Court not to interfere with the status quo in matters of politics, religion or values.

Former Justice Minister Meridor, one of the sponsors, said that it is “less a matter of judicial activism and more of parliamentary passivism,” and that the Knesset will now be forced to take up the slack and legislate a Constitution for the country. Deputy Education Minister Sha’ul Yahalom explained why the NRP supported the resolution: “Although the specifics of the proposal are problematic in terms of our principles, yet the issue has become a focal point of the clash between hareidim and Zionism, and we therefore wanted to express symbolically and declaratively our Zionistic outlook on the issue.”

VIII - Judicial Dictatorship
Professor Paul Eidelberg

“The Supreme Court rules… The Court [has] asserted its power over every branch and level of government …” Thus begins a two-page NEW YORK TIMES article of June 27, 1999, detailing how the US Supreme Court has altered the character of American society.

Although the Court does not make many decisions – roughly 170 of some 7,000 annual petitions for review – their decisions impact society’s pressure points, from police authority to questions of privacy, discrimination, citizenship, free speech, employment, federalism. Scholars refer to the Court’s expanding power as “judicial dictatorship.” This is the title of an essay by Professor William J. Quirk (Transaction, Jan.-Feb. 1994). (more…)

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. (more…)

Jerusalem Post, Dec 18, 1998, p. 16

In three successive weeks, the courts have handed down precedent-setting rulings that contain the seeds for fundamental change in the way the country looks and feels. The first was the November decision by the High Court of Justice to force the religious councils in Jerusalem and Kiryat Tivon to seat representatives of the Reform and Conservative movements, a small victory by these movements in their struggle to gain recognition and legitimacy in the eyes of the state. The second decision came two weeks ago, when the Jerusalem Labor Court ruled that kibbutz shopping centers could remain open to the public on Shabbat.

This ruling drastically changed a situation in which only selected places of “cultural activity” such as theaters and cinemas were permitted to operate on Shabbat. An appeal on this is inevitable. (more…)