AMU Intelligence Middle East Original

How the ‘Reasonableness’ Standard Affects Israel’s Politics

In the past month, the political crisis in Israel has deepened with the passing of a contentious new law. According to the American Jewish Committee, this legislation would limit the ability of Israel’s High Court to declare government decisions as void when they violate a standard of “reasonableness.”

Specifically, the law abolishes this standard in relation to decisions by ministers and others in the Israeli government. This legal debate has become a symbol for a much larger political struggle between the right and the left in Israel. To a large degree, it mimics to a large degree the political chasm between the left and right in the U.S. and other European countries.

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What Does the ‘Reasonableness’ Standard Mean?

The reasonableness standard is a term from administrative law. It exists in many legal systems, such as the U.S.  

In our legal system, for instance, a court reviews an administrative decision and evaluates if the decision was made within a range of acceptable or reasonable outcomes. The court is not supposed to change its opinion to that of an administrative agency. Even if a court could make a different decision, that by itself does not render the decision void.

For instance, consider the Supreme Court case of Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. For this case, the Supreme Court’s decision stated, “[A] reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute… The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency.”

This standard of “arbitrary and capricious” is a tool in the hands of courts when they evaluate actions and regulations made by the President and executive agencies. In the majority opinion of this case, the Supreme Court said, “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.

“Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise…We may not supply a reasoned basis for the agency’s action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”

The difference between this reasonableness standard, which also exists in other jurisdictions in Europe, is the expansion of it in Israel. The Israeli Supreme Court expanded this standard considerably in the 1990s by using it to disqualify a decision made by Israel Prime Minister Yitzhak Rabin.

In that case, the Prime Minister wanted to appoint Arie Deri, who had criminal convictions, as a Cabinet Minister, according to the Times of Israel. Israel’s Supreme Court decided that Rabin’s decision to appoint Deri was unreasonable, even if there was no law to the contrary.

But why is the issue of reasonableness causing so much political discord? Actually, it is part of a much bigger issue.

Related: Judicial Review: The Constitutional Conundrum in Israel

Israel Lacks a Written Constitution

Unlike the U.S., Israel has no written constitution. In 1948 David Ben-Gurion, the first prime minister of Israel, decided to wait before enacting a constitution.

He suggested that Israel’s constitution would be formalized over time by creating foundational laws, which would allow Israel’s complex society to reach a consensus. However, that didn’t happen.

In the 1990s, Chief Justice Aharon Barak began to legislate from the judicial bench. One of his major decisions expanded the use of the reasonableness standard.

Barak’s legacy is identified with the Israeli left, which is the reason it was chosen by the current government as the first part of a judicial reform. The plan of the current minister of Justice, Yariv Levin, is to introduce more laws that would limit the power of Israel’s Supreme Court judges to legislate from the High Court bench.

The reaction from the left was swift. It identified the Levin plan as a plan for a regime change that would limit democracy in Israel.

Levin wants to add other reforms later, including an “override clause.” This clause would allow the Knesset (Israel’s version of Congress) to reverse Supreme Court decisions and overturn legislation. However, the Knesset would need to have a majority vote (61 to 70 votes out of a possible 120) to make that possible.

According to the Jerusalem Post, Levin and Netanyahu have mentioned that the next strategy will be a change to the makeup of the committee that appoints judges in Israel. This committee has members of the government, Israeli parliament members, three Supreme Court judges and two members of the Israeli bar association.

Levin wants to allow the government more power in judicial nomination. He would like to have a system more similar to the American process that gives the political party controlling Congress with greater power.

However, will these changes be detrimental to the Israeli political system? Do they go to the core values of the system? It seems that these proposed changes are symbolizing the core values rather than the core of Israel’s democratic system.

Ilan Fuchs

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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