Criticizing the courts is allowed
It is very easy, as the present public debate in Israel proves, to confuse three issues: policy, law and professionalism.
It is very easy, as the present public debate in Israel proves, to confuse three issues: policy, law and professionalism. One minister's wish to change healthcare policy priorities is considered an infringement on doctors' professional judgment; another minister, who complained that the courts do not take the economic repercussions of their decisions into account, was described as not understanding democracy; and the courts make decisions that in fact set security policy, without any expertise in this field.
A classic case of a tragic decision is deciding who should receive dialysis treatment when there are more patients than there are machines. First come, first served? A lottery? By age - and what about elderly creative geniuses? By the chance of the treatment's success?
One thing is clear: This is not a professional medical decision. Doctors can predict who will benefit more from the treatment, but that is all. The decision is one of public values, and that is the purview of elected officials.
Politicians do not make such decisions happily. They prefer to pass them on to "professional bodies," so as to avoid responsibility. But that does not change the principle: Moral decisions on public issues belong in the domain of elected officials.
Thus, for instance, the decision to fund dental care for children over drugs that would extend the lives of cancer patients by a few months is not a medical question, but a moral one. And therefore, it falls under the politicians' auspices.
The courts' role is to apply legal norms to real cases that have come to trial, while taking other moral considerations into account. It is not their job to weigh numerous "utilitarian" considerations regarding the social outcomes of their decisions. Worrying about the future is generally the politicians' responsibility.
This division of labor is not clear-cut. The courts are authorized to make financial demands of the state if the law requires it, but they must minimize such cases. And it certainly does no harm done to democracy if a minister claims, in appropriate language, that the courts are interfering with the implementation of economic policy via decisions that place heavy financial burdens on the state.
As for professionalism, a modern government must be rich in knowledge. Senior officials need to have professional training of the highest caliber, and the politicians need to grant great weight to this professional expertise in setting policy. They must also avoid interfering in concrete professional decisions. Thus, for example, there is room for politicians to set policy, after carefully studying the relevant information, on the question of how to determine when death occurs. But a minister who intervenes in a medical decision on whether to declare a specific patient dead is overreaching his authority.
There is no profession that encompasses all knowledge, and there is always a need to bring various professionals together. The Finance Ministry's Budgets Division ought to include other professionals in addition to economists, in order to give proper weight to social considerations. The same applies to the courts. When the High Court of Justice hears a case with security implications - for example, the route of the separation fence - it must solicit opinions from independent professionals, among others. That, obviously, does not undermine the court's independence.
It is crucial to understand the correct division of labor that democratic principles dictate: Elected officials are responsible for setting policy, which involves making moral judgments; the courts are granted the authority to apply norms; and professionals need to provide information to both politicians and the courts. There will always be disagreements, but the public discourse will suffer from less ignorance and the situation will be less confused.
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