The Controversy over the History of the Development of the Reasonableness Doctrine and Judicial Strategy

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Introduction

A landmark event transpired in Israel on January 1, 2024, when, for the first time in the nation’s history, the Supreme Court declared that an amendment to a Basic Law (Hok Yesod) was so flagrantly and profoundly inconsistent with Israel’s constitutional identity as a Jewish and democratic state that it warranted nullification. Until that point, the Court had consistently maintained that it was unclear whether it possessed the authority to annul Basic Laws based on their content. The Court viewed such authority as problematic, particularly in the unique Israeli context, where the constitution remains in the process of formation and lacks an explicit entrenchment clause specifying that certain constitutional provisions are immutable.

This ruling marks a watershed moment both domestically and comparatively. The Court’s decision to nullify the amendment to the Basic Law was passed by a narrow margin of 8 to 7. However, a broader consensus emerged among 12 of the 15 judges, who asserted that the Knesset’s constituent authority is limited. Specifically, the Knesset lacks the authority to negate Israel’s constitutional identity as a Jewish and democratic state. Furthermore, those 12 judges determined that the Court possesses the authority to nullify Basic Laws on substantive grounds if they conflict with this constitutional identity.

This essay focuses on the judicial debate concerning the historical development of the reasonableness doctrine. This debate spans dozens of pages of judicial reasoning and is crucial to understanding the formation of the broad majority in the judgment. I aim to examine whether, in this instance, 'history made law' or whether the historical dispute serves merely as a facade for a deeper disagreement concerning the judiciary’s approach to the constitutional counter-revolution advanced by the 37th government.

I. The Dispute Over History

Amendment No. 3 to Basic Law: The Judiciary (Hok Yesod: HaShfita), which was struck down by the Supreme Court, provided that the Court shall not review the reasonableness of decisions made by the government or its ministers. The explanatory notes to Amendment No. 3, drafted by Dr. Gur Bligh, legal advisor to the Knesset’s Constitution, Law, and Justice Committee (Va'adat HaHuka, Hok uMishpat), clarified that the amendment aimed to counter the 'Golden Pages' (Dapei Zahav) ruling, a landmark decision by Chief Justice Aharon Barak issued in 1980, shortly after his appointment to the Supreme Court in 1978.

In the 'Golden Pages' case, Barak established that the reasonableness doctrine constitutes an independent ground for judicial review of administrative discretion. He defined the doctrine as requiring an administrative authority to consider all relevant factors and to accord appropriate weight to each. Should the authority fail to do so, the decision could be overturned. This concept of reasonableness—'balanced reasonableness' (Sivirut Eizunit)—differs from the more traditional English 'Wednesbury reasonableness' standard, which mandates only that decisions not be so absurd that no reasonable authority would have made them.

In deliberating over the nullification of Amendment No. 3, the justices were sharply divided over the historical significance of the 'Golden Pages' decision. The majority contended that the ruling reflected an evolutionary legal development. They argued that even as early as the 1950s, in the landmark 'Kol Ha’am' (Voice of the People) case, Chief Justice Agranat intervened in an administrative decision by the Minister of the Interior to shut down a newspaper, finding that the minister had failed to properly balance considerations of free expression against public safety. While the term 'reasonableness' was not explicitly employed, the underlying logic of balanced reasonableness was, in the majority’s view, already present.

According to the majority, the 'Golden Pages' ruling was not revolutionary but rather a rhetorical articulation of principles that had long been embedded in Israeli jurisprudence. From their perspective, the attempt to counter Amendment No. 3 through a narrow interpretation—suggesting that the amendment only abrogated judicial oversight over balanced reasonableness while preserving the 'absence of absurdity' (He'ader Muprakut) standard—is untenable. They argue that the historical continuum of Israeli law has always encompassed balanced reasonableness; to separate the concepts would be artificial and legally indefensible.

By contrast, the dissenting justices viewed 'Golden Pages' as a revolutionary decision that fundamentally altered the contours of judicial review. They maintained that Israeli law could, and should, return to a pre-'Golden Pages' world where reasonableness required only the absence of absurdity. For them, the attempt to narrowly interpret Amendment No. 3 is not only possible but essential to uphold parliamentary sovereignty and democratic principles.

The dispute over the historical development of the reasonableness doctrine is therefore critical. While some of the majority justices imply they would have joined the dissenters if a narrow interpretation were feasible, they insist it is not. Conversely, some of the dissenters hint they would have sided with the majority if narrow interpretation were impossible.

II. Questions About the Historical Debate

The disagreement over the historical evolution of the reasonableness doctrine is perplexing. Since when has history played such a decisive role in Israeli jurisprudence? Israeli judges typically do not adhere to originalist interpretive methods as seen in the United States. Instead, purposive interpretation (Parshanut Takhleitit) reigns supreme in Israel’s legal system. The extensive historical discourse within the judgment is therefore anomalous, reminiscent of the extensive historical analysis found in the 1995 Bank Mizrahi ruling concerning the enactment of Basic Laws.

Moreover, given that the reasonableness doctrine developed as part of Israel’s common law tradition, largely through judicial rulings rather than statutory interpretation, the justices possess inherent authority to reshape its scope without dependence on historical precedent.

This section will further explore why the historical dispute over 'Golden Pages' has emerged as a focal point of contention and what implications this has for the future development of Israeli constitutional law.

III. Competing Narratives

The historical debate is not merely a legal argument but also a clash of broader narratives. The government’s narrative asserts that a judicial revolution began in the 1980s under Chief Justice Barak, radically shifting the balance of powers between branches of government. By this account, the judiciary arrogated to itself powers that exceeded its traditional role, encroaching upon the domain of the executive and legislative branches.

Conversely, the majority of justices maintain that judicial activism in Israel dates back to the very establishment of the state. From this perspective, the 'Golden Pages' ruling was not revolutionary but a natural evolution of principles established as early as the 1950s. By denying the government’s assertion of judicial overreach, the Court implicitly absolves itself of responsibility for the current constitutional crisis.

IV. Judicial Strategy

The judicial strategy debate is fundamentally about how the Court should respond to the constitutional counter-revolution. Should the Court assert its authority decisively, or adopt a more cautious, collaborative approach?

V. Conclusion

This essay has examined the dispute over the reasonableness doctrine through historical, narrative, and strategic lenses. It highlights how these layers interact to shape the ongoing constitutional struggle in Israel.

Suggested citation:

The Controversy over the History of the Development of the Reasonableness Doctrine and Judicial Strategy, 48 Tel-Aviv University Law Review Forum- Tguviot, May 30, 2024.