Prof. Sam Lehman-Wilzig: Judicial Reform (Again): The Flexibility of Halakhic Oral Law
Here we go again – exactly three years after the Israeli Government’s attempts to legislate its “Judicial Reform” all started. This internal “war” between the Government and the Judiciary might seem to look like a pure power play: who gets to run the country? In fact, however, both sides base their position on Judaism’s ancient “Oral Law” ethos. This would seem remarkable – even paradoxical – as both camps are fundamentally secular in orientation. Yet there’s a reason it’s called the “Jewish State”!
Judaism has two pillars: the Written Law (the Bible, especially what’s generally called the Five Books of Moses), and the Oral Law (all the post-biblical commentaries, starting with, and especially, the post-Temple Mishnah and Talmud). The former is read in synagogue every Sabbath (Mondays and Thursdays too), but it’s the latter that really counts in the day-to-day religious practice of observant Jews. Indeed, although the Torah stories are taught in early Jewish childhood education, it is the Talmud and accompanying commentaries that constitute the core of Jewish learning. If you step into any haredi yeshiva, all you’ll hear is Talmudic disputation between two students (khevruta), with the occasional rabbi’s discourse to the entire school.
Put simply, Judaism leans heavily (in some respects, almost exclusively) on the Oral Law. Its core approach is that Jewish Law is flexible, moving with the times. Indeed, that’s why it’s called “Halakha”: the same word root as walking, moving, advancing (la’lekhet). And how does it “move”? Through argumentation and disputation i.e., analyzing differences of opinion. That doesn’t mean that one side is correct and the other is wrong. The Talmud states emphatically: eilu v’eilu divrei Elohim khayim – this opinion and that opinion are both the words of God! Of course, at some point a decision has to be made as to which “opinion” rules, but the point of both being “correct” is that when social, political, or economic circumstances change, the formerly “lesser” opinion could take hold. In any case, Jewish Law is not set in stone (like the Ten Commandments; but even the Torah’s two versions are slightly different!); it’s supremely malleable and adaptable.
And that brings us back to the present situation. Israel has a “Constitution” of sorts: Basic Laws that make up around 90% of what would be a complete Constitution. This provides its “interpreters” with even more leeway than normal, especially considering that there’s no official, different process for amending a Basic Law or adding a new one (if 61 MKS approve, that’s enough). As a result, the Supreme Court views these Basic Laws as interpretable (that’s not unusual in democratic regimes). However, given that both these branches of government in Israel are also steeped in the Jewish mindset of Oral Law flexibility, they tend(ed) to be less wary of significant change or wide-ranging interpretation.
However, the present Right-wing government doesn’t like what it views as “over-reach” by the Court, especially when it hampers what it wants to do, Israeli traditional flexibility notwithstanding. The judges, for their part, use “reasonableness” as a factor in their decisions, admittedly a somewhat slippery term. The result, an inevitable clash between Israel’s three branches of government (actually two as the Executive and Legislative work mostly as one, especially with a powerful prime minister who can get his way in the Knesset for most legislation and policymaking).
From there, it was a small – but for Israel, revolutionary – extra step to the Judicial Reform program that the Government intended to promulgate three years ago. Its main elements:
1) Change the composition of the Judicial Selection Committee to grant the ruling government coalition an automatic majority (7 out of 11 members), giving politicians control over the appointment of all judges, including those for the Supreme Court.
2) Eliminate the judiciary’s ability to review government and ministerial administrative decisions (including appointments); no more such decisions based on the legal standard of “reasonableness.”
3) Prevent the Supreme Court from exercising any judicial review over Israel’s quasi-constitutional “Basic Laws.”
4) Reclassify ministry legal advisers; instead of being independent civil servants overseen by the Attorney General, they would now become political appointees selected by each minister, with their legal opinions turning into mere non-binding recommendations.
5) Pass an “override clause,” enabling the Knesset to pass laws – with a simple majority of just 61 out of the Knesset’s 120 members – that the Supreme Court had previously ruled to be unconstitutional.
Later on, the government also tried to split the State Attorney-General’s job among three functionaries: Attorney General (legislative advisor to the government), Prosecutor General (head of general criminal proceedings), and State Attorney (for legal proceedings against ministers and MKs). This is an ongoing effort that would significantly weaken the present unified post standing in the way of advancing important legislation (according to the present government).
A large majority of the Israeli public would have none of it; massive protest demonstrations ensued – until Oct. 7, 2023. But with the war over, the government’s Reform/Revolution push has restarted in full force.
This is where “eilu v’eilu divrei Elohim khayim” enters the picture in a contemporary political guise: the Opposition has already declared that if and when it wins this year’s election, it will not only roll back all (or most) of any such successful legislation, but it will also push to finalize a full Constitution. That’s certainly necessary. But whether it will reduce the legislative and judicial flexibility ethos of Jewish antiquity is an entirely different matter.
