Very few members of Israel’s professional class, especially university professors, have had a good word to say about the new government’s proposal for judicial reform. Still, 120 Israeli academics have signed a letter — that received almost no coverage in the Western press – supporting the judicial overhaul. All the attention — approving attention — has been lavished on the other side, with no hint that those proposing the reform just may have a point. For those of us who are largely ignorant of what the latest alarums and excursions in the Jewish state are all about, it might be worth hearing from someone who thinks that, taken all in all, the proposed judicial reform has much to recommend itself. Prof. Yisrael Aumann, who was awarded the Nobel Prize in Economics in 2005 for his work on game theory, says that the intervention of the judiciary system in the everyday life of Israelis is “harmful,” and “unacceptable.” More on Aumann’s rare show of support for the proposed reform can be found here: “Israeli Nobel Prize winner voices rare support of judicial overhaul,” by Sivan Hilaie, Ynet News, March 5, 2023:
An Israeli Nobel Prize winner on Sunday came out with a rare show of support for the planned judicial reform, which has been driving thousands of Israelis to the streets in weekly anti-government rallies.
Prof. Yisrael Aumann was awarded the Nobel Prize in Economics in 2005 for his work in expanding the study of game theory [first sired by John von Neumann and Oskar Morgenstern, then raised to maturity by Lloyd Shapley].
“The opponents of the reform claim the judiciary supports democracy, but the opposite is true,” he said. “The courts and judicial system maintain an ongoing dictatorship, they can decide whatever they want and nothing can stop them.”
Israel has no constitution, so no law can be declared to be “unconstitutional.” But any law in Israel can now be struck down by a handful of Supreme Court judges if, in their opinion, it is “unreasonable.” This is a standard unknown to high courts elsewhere, and from this coign of vantage, far from Israel, it strikes me as bizarre.
What do you think of President Isaac Herzog’s plan for a dialogue?
“A compromise in the spirit of the president’s plan is a good possibility. There are certain things that can be compromised on. My position is not necessarily like that of Simcha Rothman and [Justice Minister] Yariv Levin’s. They aren’t willing to stop the legislation, but they’re willing to listen and talk as long as the legislation continues.”
Do you support the change in the composition of the judges’ selection committee?
“This is the most important section of the reform in my opinion. Today, judges have a very decisive power in the committee, and anyone who doesn’t follow the ideology and values of the judiciary fails.”
“Judges are elected by political bodies in many countries, and I think it wouldn’t be terrible if the coalition had a decisive voice in the committee. In any case, there are 15 judges and only four may be replaced in the coming years, so there is no need to fear that the court will suddenly become a dictatorship.”
I can think of another country where judges are not selected by other judges – as is currently the case in Israel – but are nominated by the executive and must then be confirmed by a parliamentary body. Can’t you?
What about the override clause and the barring of the judiciary from reviewing laws?
“Invalidating a law should be possible, but not as easily as it’s done now. Today, a panel of three judges can invalidate a law passed by the Knesset, when two judges are in favor and one is against, and this needs to be changed.
“It’s appropriate that the judicial system is able to strike down laws on the one hand, but on the other, it must be taken seriously, and with a decisive majority of judges. Today, there’s no authority that can override the judiciary and the attorney general, who should serve the government, not the judiciary.”
It’s not that decisions by Israel’s Supreme Court can’t be overridden that is the problem. The problem is that right now, in Israel, according to what Aumann says, even two judges (out of 15) can invalidate a law passed by the Knesset. Part of the reform is to require a majority of the 15 judges – Aumann calls for a “decisive majority” – to declare a law invalid.
What do you think is the main issue with the judiciary today?
“The fact that the judiciary takes positions that aren’t in line with the majority of the people in Israel, as was evident in the last elections, is something that needs to change. Democracy is not just about individual rights, it’s about the rule of the many, not the legal elite only.”
Aumann is not in favor of all parts of the proposed reform. He has come out against that part of the proposed reform that would allow the Knesset, after the High Court has invalidated a law passed by that parliamentary body, to override that High Court decision by a vote of only 61 out of a total of 120 MKs. Aumann argues that such a slim majority is insufficient; a much larger majority should be required.
What do you think about warnings that the reform will harm Israel’s economy?
“There’s nothing in the reform that can hurt the economy. On the contrary, it can strengthen the economy once the judiciary has no intervention in the business sector. What can do harm is if reputable economists continue to go against the reform, scaring sway investors. This is what is damaging the economy.”
That is, briefly, the other side of the argument about judicial reform in Israel, the side that is not being covered by the international media, presented by Prof. Yisrael Aumann. He deserves a hearing.
