Israeli High Court’s Pursuit of a Constitutional ‘Gospel’

Or Bassok and Menachem Mautner
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Chief Justice Esther Hayut sits in the High Court of Justice, Jerusalem, October 27, 2020.
Or Bassok and Menachem Mautner

During its early days, the Israeli Supreme Court acknowledged that in view of the lessons of the Weimar Republic, there are foundational principles that are above the law and that may override legislation, and even constitutional provisions. One lesson of the collapse of the first German democracy was that in extreme situations, it is vital that courts will be able to rely on foundational principles to override provisions of a state’s constitution.

But the first generation of Israeli justices did not seek to confront thorny constitutional issues. The justices denied the idea – raised in petitions submitted shortly after the state’s inception – that Israel’s Declaration of Independence is the constitution of the State of Israel, and that based on it the court may strike down Knesset legislation. The justices wanted to escape this constitutional “gospel.” Yet in recent decades, a shift has occurred in the court’s decision-making. This shift, unnoticed by most commentators, was demonstrated recently in the oral discussion in Israel’s High Court of Justice on the petitions challenging the Basic Law on Israel as the Nation-State of the Jewish People.

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Until recent decades, the court adjudicated cases according to a model akin to the Aristotelian decision-making model of practical wisdom. The gist of this model is that the court determines the law based on a concrete case, so that the facts of the case pave the way to the court’s normative conclusion. According to this model, the justices detect the relevant facts of the case; identify the relevant legal doctrine; weigh the various normative considerations; resolve conflicts between clashing normative considerations; and examine the overall consequences of their normative determination. This model of adjudication is one of the defining features of Anglo-American legal systems of which Israel’s legal system is part.

In recent decades, a shift occurred in the model of adjudication: The court adopted an abstract decision-making model. This model is identified with Plato, and its core is a theoretical normative discussion that is unrelated to the facts of any concrete case. Several constitutional courts in Europe apply this model when they are asked to conduct an abstract review of the constitutionality of legislation, with no connection to a particular controversy.

Following the enactment of the two 1992 Basic Laws that created a partial bill of rights, Israel’s Supreme Court adopted this abstract-thinking model. The court read these two Basic Laws as endowing it with the power of judicial review over Knesset legislation. Soon after this development, petitions asking for examination of the constitutionality of Knesset legislation began to reach the court. Many of these petitions lacked any concrete factual grounding or referred to facts that were marginal for establishing the legal arguments.

The petitions challenging the so-called nation-state law which were recently heard by the High Court represent the culmination of this process. The petitioners argue that this Basic Law infringes the right to equality and the right to dignity. However, as the response by the attorney general makes clear, “these claims are speculative in nature and lack factual grounding as they relate to future scenarios predicted by the petitioners.”

In the absence of factual grounding for concrete infringements of rights, during the oral discussion in the High Court the petitioners’ attorneys offered various scenarios of future potential infringements. But one thing was missing from the oral arguments: legal arguments. At various stages of the televised discussion, the justices urged the lawyers to focus on legal issues, and at one point the Supreme Court President Justice Esther Hayut told one of the lawyers: “Sir, you are in a court of law; you must offer a legal proposition.” On another occasion, she admonished a lawyer: “What does this argument has to do with legal matters? God!”

However, in searching for blame for oral arguments that have little to do with legal arguments, the justices should point their finger at themselves. This style of oral discussion, full of rhetoric and constitutional hype, is a direct result of the adoption of the abstract-thinking model in a legal system that was previously based on the practical wisdom model. We can listen these days to the oral discussions from the U.S. Supreme Court and watch the ones from its U.K. counterpart, and these are not at all similar to what transpired in the High Court’s oral discussion on the constitutionality of the nation-state law. The setting, ceremonial atmosphere and gestures were similar, but a legal discussion in the Anglo-American courts is focused on concrete, rather than theoretical, infringements of rights or interests.

In the absence of a concrete case with concrete facts to focus on, the justices made some inappropriate remarks. One said that contrary to what was said in the Knesset, the nation-state law was not “Israel’s I.D.” Another justice noted that it would be appropriate to limit the time available to the Knesset to complete the enactment of the Basic Laws that would eventually compose Israel’s constitution. Later the same justice added that had the nation-state law existed without the earlier Basic Laws that define Israel as a democratic state, the court would have struck it down.

We find it hard to think of another national high court in the world in which justices make similar remarks from the bench. It seems that such remarks are the negative outcome of an unfocused and theoretical oral hearing in which the justices are contemplating the constitutionality of an entire Basic Law. Such a form of discussion pushes the court to behave as if it is a Platonic philosopher-king tasked to determine the appropriate regime for a state, rather than a court of law examining a particular infringement of a right or the violation of a protected interest.

The Basic Law on Israel as the Nation-State of the Jewish People is a bad law, but the oral discussion at the High Court did not advance us a single step toward its amendment. More likely, it took us further away from that goal. The justices’ comments made it clear that they do not intend to strike down this law, and yet in their judgments they are planning to discuss their authority to strike down Basic Laws which are chapters in the Israeli constitution. The justices asked the attorney representing the Knesset, Avital Sompolinsky, to address the hypothetical case of a Basic Law that negates women’s right to vote. When the attorney refused to address this hypothetical example, the justices did not hide their annoyance that she refused to follow their abstract model of adjudication.

In recent decades, the justices have planted clues in their judgements that in future cases they may invoke the authority to strike down Basic Laws. These clues were raised as assertions that were not necessary for deciding these cases. Now it seems that the justices are going to officially announce that the court holds this unprecedented authority to strike down chapters of the Israeli constitution. While endowing themselves with this authority, they would, in all likelihood, deny the petitions challenging the nation-state law, thus endowing this Basic Law with their stamp of approval.

A few years ago, our friend Ruth Gavison – who recently passed away – wrote that we need to remember that Israel had legal giants among its first-generation Supreme Court justices. “We can remember them and learn from them,” Gavison wrote, “and we should not try to invent new wheels and then present them as having been with us right from the start.”

Rather than chase after foundational, abstract constitutional decisions, which attract media interest and incite strong opposition, the court should wait for concrete cases in order to develop Israel’s constitutional law. By discussing concrete facts of concrete cases, step by step, far-away from the drama of “momentous cases,” the court may further advance the liberal tradition it created over the years. This was the manner in which the justices of the first generation functioned. We believe this is the path the court should take with regard to the nation-state law.

Dr. Or Bassok teaches at the School of Law, Nottingham University. Prof. Menachem Mautner teaches at Tel Aviv University’s Faculty of Law.

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