The fight over changing the judicial system in Israel

Israelis have been fighting each other lately regarding changes to the judicial system. See, for example, “Demonstrations forced Israel’s prime minister to delay a judicial overhaul” (NYT):

Much of life in Israel came to a halt yesterday: Hospitals stopped providing nonemergency care, planes were grounded at the country’s main airport, and malls and banks closed. The disruptions were part of an escalation in protests against the government’s proposed judicial overhaul, which has plunged Israel into one of its gravest political crises ever.

The fight has been described in the same generally hysterical tones that are used for Democrat-Republican disputes in the U.S., i.e., democracy vs. dictatorship/tyranny. (This always prompts me to ask whether Israelis will flee the impending tyranny and seek asylum in Syria or if instead they will choose Lebanon.)

For folks who want to understand what the fight is about, an Israeli friend recommended “‘Why do we need judicial reform?’ An architect behind the proposal explains” (JNS). First, one background item: Israel has no constitution. Its courts, therefore, can’t invalidate a law as being “unconstitutional.” Here are some highlights from the article:

There have been instances where the attorney general has refused to represent the government in a case, while refusing to allow the government the right to hire private counsel, leaving the government without legal representation to defend itself in court. The reform will allow the government to hire its own counsel in such an event, Koppel said.

One addresses the judicial pretext of “reasonability,” whereby judges overturn laws and administrative decisions based on whether they consider them “reasonable” or not. The pretext is vague enough that opponents of reform (at least in its current form) agree that it shouldn’t be allowed.

The fifth and final part of reform addresses the issue of how the Supreme Court can strike down laws. The reform would regulate the court’s ability to do so, requiring for example that all 15 Supreme Court justices sit on a case and that legislation be struck down by a special majority. Before, as few as three justices, selected by the court president, could strike down a law, Koppel said.

Essentially, then, the laws of Israel have been decided on by a triumvirate, in the best classical Mediterranean style! (Three judges pick whichever laws they consider “reasonable” to validate.)

Separately, for Israelis who disagree with any changes to the political system and who don’t want to escape to Syria, the option of Masada is open. My photo from 2016:

14 thoughts on “The fight over changing the judicial system in Israel

  1. Unfortunately, the siege ramp built by the romans still exists so the fortress wouldn’t last long. Most impressive that manual labor built a ramp across a distance which now requires a gondola.

  2. Hmm… I read that article but I don’t see where three judges can make laws. They can invalidate laws, which should always be easy to do (governments tend to over-produce laws). Anything that makes laws harder to invalidate should be considered a bad idea for anyone who is not in the business of making them…

  3. The US didn’t have judicial review either until Marbury v. Madison (1803), where the US Supreme Court effectively told the father of the Constitution they understood it better than he did. And unlike Israel the SC does regularly invent new rights (effectively laws) out of thin air like corporate personhood or qualified immunity.

    Israel inherited its non-constitution from the UK and the pernicious doctrine of parliamentary rather than popular sovereignty unfettered by a bill of rights. There is nothing preventing Westminster from passing a bill of attainder tomorrow declaring all people named Greenspun outlaws subject to being shot on sight.

    • Also worth mentioning an independent judiciary is not always a guarantee for freedom. Arguably Iran’s Supreme Leader is a judicial position, under Khomeini’s doctrine of vilayat-e-faqih or rule of the (Islamic law) jurisprudent, the only country AFAIK where the judicial power is foremost among the three branches.

    • Israel’s “declaration of independence” (it’s named like that in Hebrew) actually calls for setting up a constitution, unlike the UK. You can find the whole document translated at(, but the essential part is the paragraph below. As one might imagine, we never got around to actually agreeing on the promised constitution, giving rise to the current political turmoil.

      WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel”.

  4. I think this is also about how judges are appointed.
    It seems that in Israel judges are paid the multiples of what lawyers, engineers and doctors get paid and they got to appoint themselves. And sometimes and maybe even often, based on whom to believe, it is a family affair.
    The situation started in early 1990th, under pressure from Clinton administration, by a guy who is less observant and has lesser knowledge of Judaism that @philg, ruling country that is if not religious then over 50% traditional. I do not know the details but that seems what is happening there.

    • Virtually anything you wrote above is false actually. Judges do not appoint themselves; they don’t make more money than “lawyers, engineers and doctors”, etc.

    • Ziv: It isn’t true that the bureaucracy of existing Israeli judges selects judges who will be promoted to positions of significant authority? (unlike in the U.S. where the president and Senate decide which judges will work at which courts)

  5. The framing that seemed to make the most sense to me was that Netanyahu is revolting against the Israeli bureaucratic state which is a wholly owned subsidiary of the US State Department. If Netanyahu loses then Israeli will be governed from Washington. If he succeeds then Israeli will be governed but actual Israelis.

    I used to worry that Fukuyama was right about progressive values being universal and national identities being superficial but lately the end of history seems to be losing some ground to the great man theory.

  6. The Israeli legal system is quite astounding on many levels. The AG moishe koppel refers to reports to the judiciary not the executive branch as do all AGs inside each ministry. Not surprisingly the national labor union joined in the effort to bring Netanyahu down since one of his big goals is to make the Israeli economy more competitive. Visitors to Israel will quickly notice that everything is way more expensive than it should be due to crazy anticompetitive legislation including labor laws.

  7. The problem is not judicial reform. The problem is that a criminal conspiracy known as the Likud party is trying to take over the country under the pretext of “judicial reform”.

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