Disentangling the toxic from merit-based judicial elitism
By Lawrence Nowosenetz
Bitter divisions are wracking Israeli society over the recently passed reasonableness legislation. This legislation is part of what was a planned package of judicial reforms by the coalition government. The reforms are touted as being necessary to restore democracy and return the will of the voters to the elected representatives of the voters of Israel. The judges of the Supreme Court of Israel have been accused of overstepping the mark, entering politics, and making policy decisions based on their notions of reasonableness of government action and even legislation.
There is more than an undercurrent of criticism of the judges. Various commentators and politicians have stated that the judiciary is undemocratic as it is unelected, and the judges are an elite and unrepresentative of a large part of Israeli society. The criticism of the selection of judges at present, is that the judges control this process and appoint their own peers. Thus a small self-appointed elite is making the important decisions and is out of touch with the wishes and needs of the electorate. The reforms sought are said to aim at remedying this injustice and place the appointment of the judges in the hands of politicians and importantly the majority of whom are coalition government politicians. What can be wrong with this? Government by the people, for the people.
Sounds great except that it is not so simple. There are some gross distortions of social justice and violations of robust established principles of justice and good governance. Misunderstandings about the role of the judiciary and gross disrespect for the rule of law also inform this most abused idea of elitism being at the root of all the evil within the judiciary.
We are living in a populist era where the idea of a select few having a privileged position in society is looked upon with disfavour. We have become so obsessed with the notion of equality and our aversion of discrimination that we have lost sight of the moral basis of elitism, which is merit. We are all equal in worth and all men and women were created in the image of G-d. This is a noble immutable and just social principle except that it overlooks one thing: We are not equal in ability. The more able are entitled to the fruits of their talents and contributions towards the welfare of society. This entitlement is based on merit and not on patronage, popularity, political favour or background. Elitism is toxic when it is undeserved. George Orwell satirised this in his famous novel Animal Farm where the corrupt political doctrine “some are more equal than others” made a huge impact on our thought. We need to disentangle toxic from merit-based elitism.
Judges are not public representatives and never were meant to be elected. Indeed popularity, particularly temporal political approval, is no criterion at all for fitness for judicial office. As eminent US law professor Allan Dershowitz has remarked, the judiciary is actually anti-majoritarian. He has supported the existing Israeli system of judicial selection as better than the US system where the US Supreme Court is perceived as being politicised. To state the other side of the coin, judges are and should be an elite. Peer recommendation plays a legitimate role. Senior jurists are in the best position to evaluate the competence and fitness of their colleagues. Successful societies need top jurists who have earned their place by skill, character, experience, maturity, independence, and service to society. Their loyalty is to the State and the protection of the rights of all that are affected by the laws. The State is not the same as the government. Political ideologies and governments come and go but the State binds every citizen to respect the founding values and rule of law. Judges are only answerable to the rule of law.
We have elites in all walks of life and professions. Not only judges. We have engineers and scientists who design weapons and technology to protect us from attack by our enemies. There are skilled surgeons who save lives and improve the quality of our lives by their expert medical knowledge and dedication. There are hi-tech entrepreneurs who have gifted the world with innovations and computer solutions which have brought huge investments, profits and tax revenues flowing to Israel. They are the elites of the Start-Up Nation. None of these people were placed in their positions because they were popular or demographically representative. They succeeded on merit, and it made no difference what background they came from.
Judges are in a similar expert category although they differ in that they are public officials. They constitute the third layer of government but unlike the two layers of the legislature and the executive, the judiciary is independent of them. That is the essence of the separation-of-powers doctrine. Each has separate spheres of power and competency. Judicial independence is not limited to independent decision making, but also to independence in their appointment from political influence. This is an international standard protected by various declarations of the UN the EU and other international legal bodies.
Judges are trained professionals and not ideologues or politicians. They are trained in concepts of rights, procedures, and legal theory. They gain experience in real situations and have to distinguish conflicting claims of fact and law. They are required to uphold the rule of law. They are required to make decisions which may conflict with their personal political convictions and have to distance themselves from predisposed personal political or social views. The best of them have an independent outlook which does not change according to the governing politics of the day. Strong moral character and a commitment to basic justice defines them.
Judicial review is a topic which has engaged lawyers since the landmark U.S. Supreme Court case of Marbury v Madison in the early 1800’s that established the principle of judicial review in the US, meaning that American courts enjoy the power to strike down laws and statutes that they find to violate the Constitution.
Law is work in progress. There is no definitive state of the art about the powers of courts to intervene in legislative and executive action. This is a balancing act within a county’s constitutional framework. Law develops slowly and sometimes painfully as do social values. We cannot however turn back the clock. The role of the judiciary not only in Israel but in other democratic jurisdictions is constantly evolving. The days of parliamentary supremacy are waning. We have seen the slippery slope to political absolutism. It has led to the violations of basic rights, dictatorship and worse, as seen in Nazi Germany and Apartheid South Africa. Judges have to ensure the law meets the standards of successful, free, and prosperous democratic societies. Paul Kruger, the President of the old Boer Republic of the Transvaal (ZAR) in South Africa at the turn of the twentieth century, called ‘judicial review’ the work of the devil. Neither he nor his republic lasted long.
In countries with an English common law tradition, the courts have always had what is known as an inherent jurisdiction. This includes the power to fill lacunae or vacuums in the law. This includes an interpretive function based on principles of justice. Indeed Jewish values are based on justice rather than legal rules. The Torah speaks of tzedek tzedek tirdof (justice justice shall you pursue) rather than mishpat mishpat tirdof (law, law shall you pursue).
The South African Constitution, internationally held in high regard, states in Section 173 :
“The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process and to develop the common law taking into account the interests of justice.”
The judges of the Supreme Court have few modern common law sources at its disposal as a result of the youth of the State of Israel and the repeal of English common law precedent in 1980. It therefore has to reach far wider and deeper in developing a system of law based on justice. Its inherent jurisdiction was recognised in the Israel Foundations of Law statute of 1980:
“Where a court facing a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel’s heritage”.
The best lawyers are required for this daunting task. It requires wisdom, insight, a solid grasp of established legal norms and values, as well as the roots of Israel’s heritage. Surgeons are not second-guessed for their professional decisions unlike judges who are subjected to degrading and disparaging criticism. People are often displeased with the outcome of a case and the immediate reaction is that the court is predisposed to favour or not favour a certain person or group. Few bother to examine the reasoning behind the decision.
It is up to the judiciary to interpret laws and apply the rule of law. Their role is to fill legal gaps (lacunae). Israel is replete with such gaps as it has no formal constitution, a Bill of Rights, nor a developed common law. Judges thus have declaratory powers and in this respect they have the last say as to what the law is. This does not mean they are exercising judicial supremacy. They are rather custodians of the higher legal values which constitute the foundational legal basis of the country. They do not generate legislation; they only exercise quality control and only decide on cases which are brought to them. The fact that they interpret laws and have declaratory powers about the cases before them does not make them dictators nor legislators. Anyone who reads the judicial decisions and legal literature will soon realise that judges follow a policy of caution and a reluctance when entering the arena of government policy and interfering with existing laws. Indeed in the past 30 years of judicial activism, there has been approximately one decision on average per year which has overturned a law. Judges make law as a last resort. Not a first resort.
The work of the Israel Supreme Court has been oversimplified and distorted in the public discourse raging in Israel. The loud voices proclaim that the court, an unelected elite, imposes its own agenda on government: It obstructs the will of the people. These are at best misleading allegations and at worst shocking and discrediting misrepresentations about the conduct of the judiciary. Many of the loud supporters of judicial reform possess no expert knowledge and experience in legal theory and practice. Seldom is there any meaningful discussion of the offending judgments and there is no attempt to examine and analyse the reasoning of these activist decisions. Some writers have made the absurd claim that ‘reasonableness’ depends on the whim or subjective preference of the judge. This is grossly false. The very legal notion of ‘reasonableness’ is an objective test and stringently applied. Established jurisprudential criteria are carefully weighed up.
Judges are highly disciplined professionals governed by strict ethical rules. They are restricted from public comment and cannot defend these accusations. It subverts the social order for the trust and confidence of the judiciary to be maligned. Criticism needs to be based on sound legal principles based on international best practice and not ad hominem attacks on the background and ethnicity of judges. This leads to tearing down the legitimacy of the courts and undermines respect for the justice system.
It is time to value and respect the elites in the judiciary who are the guardians of our freedom and also the custodians of righteous Jewish values according to the heritage of Israel.
About the writer
Born in Pretoria, Lawrence Nowosenetz obtained his BA at University of the Witwatersrand and LL.B at the University of South Africa. Admitted as an attorney and advocate in South Africa, he practiced at the Pretoria and Johannesburg Bar and worked as a human rights and labour lawyer at the Legal Resources Centre, a public interest law firm. Awarded a Fulbright Scholarship, Lawrence completed an internship in the USA and is presently a part-time Senior Commissioner at the Commission for Conciliation Mediation and Arbitration (CCMA) as well as a panelist at Tokiso Dispute Settlement – the largest private dispute resolution provider in South Africa. He has also served as an Acting Judge of the Hight Court, South Africa.
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I am not a legal or political fundi and I readily concede what follows is more from logic than informed opinion. I agree with everything the author has written. It is what he has not said that gives pause for thought.
There seems to be a glaring omission in examining the whole principle of Reasonableness which is causing all the heat and turmoil. Is there a legal definition? Everything stated in the article how judges exercise their professional minds and jurisprudence and come to their rulings seem to me could equally apply if the notion of Reasonableness is stricken from the record. What is its purpose? Exempting a formal Constitution, Israel Foundations of Law Statute of 1980 provides guidance to judges which are objective principles. Reasonableness can be construed as subjective. It is ironic that the Torah observant sector of Jewish Israelis by and large support the government which is attempting to reform an Israeli system of jurisprudence based on the whole idea of Torah injunction “tzedek tzedek tirdof”.
Another sentence I find confusing is “Judges……. do not generate legislation. They only decide……. on cases brought before them” If this is so what is the problem the proponents of judicial reform have with the current system? How is that different from other countries ? My understanding is that in USA and South Africa it is political Opposition parties and civil society as a whole which brings legislation before the courts whereas in Israel it is the Supreme Court itself which can initiate legal inquiry and judgement against executive policy. And thereby the argument of separation of powers can be used also on both sides. Equally it could be argued that judges might be experts in law but how are they supposed to have knowledge of back channels and national intelligence which informs government political policy. At the same time ideology also informs politics so it is vital to have a functioning independent judiciary which is completely separate. It would be instructive to be provided with an example of one of the 30 cases the author refers to, and indeed a source reference to all 30.
Of course I understand that putting judges and politicians on the same moral and ethical pedestal could be problematic, but in essence what is driving the uproar is the mistrust of both from each side..