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The Reasonableness Clause

The following is a transcript of Episode 78 of the For Heaven’s Sake Podcast. Note: This is a lightly edited transcript of a conversation, please excuse any errors.

Donniel: My name is Daniel Hartman, and I’m the president of the Shalham Hartman Institute, and this is For Heaven’s Sake, a podcast from Hartman Institute’s iEngage Project. Major support for For Heaven’s Sake comes from Diane and Guilford Glazer Foundation. Our theme for today is the reasonableness clause: is this the breaking point for Israeli democracy?

In each edition for For Heaven’s Sake, Yossi Klein Halevi, Senior Research Fellow at the Institute here in Jerusalem, Elana Stein Hain, Head of Beit Midrash, SHI North America and Senior Fellow, and myself, discuss a current issue central to Israel and the Jewish world. And then Elana explores how classical Jewish sources can enrich our understanding of the issue.

Our conversation is, is this reasonableness clause, is this the carrier right now of the demonstration? Is it the breaking point? Now, while this might be too much information, but let’s just frame and remind everybody that the reasonableness clause is one of the five components of what was known originally as the reform, the reform which Rothman and Levine put forth somewhere in January, February.

And the five principles, one was reasonableness. The second is changing the independence and power of the attorney generals over the government and over the ministries. The third is the judicial legislative committee, who picks, and how do we pick the justices? The fourth is how many justices are required to override Knesset legislation or decision. Now it could be a simple three. The argument is that maybe it needs to be 11 with a special majority. And the fifth principle was the ability of the Knesset to override a judicial override. Those five constituted the reform. 

Now, after months of hesitation, in the face of intense protests, the Netanyahu government has now begun the first stage of this legislative process to limit the authority of the Supreme Court. The bill has passed its first reading and seems almost certain to become law in the coming weeks. At issue is the ability of the Supreme Court to use what is known as the reasonableness clause to overturn any government decision that justices consider to be either inconsistent with the intent of the law or what they believe reasonableness requires.

For example, when the courts rejected the government’s right to appoint Aryeh Deri, convicted twice for tax fraud, as a senior government minister, on the grounds of unreasonableness in the extreme. Or the decision to build security rooms in only some of the houses in Sderot, instead of all the houses which are exposed to Hamas and Islamic Jihad rockets. In both cases, the reasonableness clause is what gave the Supreme Court the authority to change the government’s policy. 

Now, should the court have the right to restrict the decisions of a democratically elected government on the basis of their assessment of what is reasonable, how serious will the impact of the legislation be on Israeli democracy? Is the government protest being intransigent in rejecting all aspects of the government’s agenda? Or should we regard any judicial reform initiated by this government as illegitimate? Is this, right now, like we experienced Saturday night, the critical moment for Israel’s democracy? Yossi, what’s your take?

Yossi: It’s interesting, Donniel, listening to the list of the components of the government’s judicial plan, reasonableness is the most ambiguous. It’s the hardest really to explain in one line what this is about. And I think that that’s why the government began with reasonableness, because they thought this somehow, it seems the most reasonable of all of the elements that they intend to implement.

Where I think they miscalculated is in the impact of the word reasonableness on the liberal camp. This government is the embodiment of unreasonableness. And for the government to try to deprive the court of its ability to judge the actions of this of all governments as whether it’s reasonable or not, that hit us viscerally. It became a kind of metaphor for everything that’s wrong here. 

For me, a government in which Ben Gvir and Smotrich are at the heart of the security establishment is by its very nature unreasonable. So this of all governments is going to deprive the court of its ability to determine what is reasonable or not. So that’s the first level. And again, that’s a very kind of emotional or visceral level, but there’s more. 

The second level here is how it’s being done. We entered negotiations. And we entered negotiations with, and you and I went through this over the months, many, many people like myself had no trust whatsoever in the good faith of the government and didn’t believe it was possible to negotiate a compromise with this government.

The negotiations fell apart. Netanyahu, from my perspective, showed deep ill will, surprise. And so my takeaway is that this process cannot happen unilaterally, because there isn’t minimal trust. If it was a reasonable government, then of course there are reasonable ways in which the reasonableness clause can be amended.

Donniel: Could you say that sentence? I’m just teasing you. There is a reasonable way in which the reasonable clause can be reasonably amended. Got it.

Yossi: And yes, there is, now, Supreme Court Justice Sohlberg, who is a religious Zionist, is actually a settler, is in line on the basis of seniority to be the next Supreme Court Justice, wrote a very important article in the early 2000s about the need to restrain reasonableness.

And Netanyahu is now citing Sohlberg, but Sohlberg did not call for doing away with reasonableness. What he called for in that article was that the judges themselves should restrain the extent to which they apply reasonableness, that there was an abuse of reasonableness. Netanyahu is coming along, and surprise again, distorting Sohlberg, who, as a sitting Supreme Court justice, is constrained from challenging the Prime Minister publicly, but read the article, read what he said. And so there’s such lack of goodwill on the part of the government that no part of this process can happen unilaterally. I give no legitimacy to that. 

The final question here, and thank you for your indulgence on this, because my final problem is that, why do we need a strong court? Even agreeing that the critics have a point and the court needs to be somewhat restrained, I emphasize somewhat, why do we need a strong court? And you know, we, the arguments that we use is because we don’t have the checks and balances that most other democracies have. I think there’s a deeper reason here. 

There is no other democracy that is so deeply challenged by circumstances, as Israeli democracy. First of all, no other democracy, maybe with, all right, there is Ukraine. But aside from Ukraine, no other democracy faces the kinds of existential threats that we deal with routinely from almost every border.

The second is that no other democracy anywhere is caught in an open-ended occupation of another people. Now, we have no safe way of extricating ourselves from that occupation, which means we’re stuck with it for the foreseeable future. I need a strong court, for those reasons, to make sure that we don’t give into the temptation of using security arguments to erase democratic norms, which large parts of this government want to do. And I need a strong court to make sure that we’re not overcome by the norms of the occupation and that they don’t infiltrate into Israeli society. 

And the third reason is that I can’t think of another democracy anywhere that has a more intrusive religious establishment that controls key aspects of the lives of Israeli citizens as we do so. For all of those reasons, we desperately need a strong court. 

Donniel: The reason why we feel that we need to be protected—potential abuse to human rights, for so many reasons, is just around the corner. So that I share. There’s another side, and while I’m continuing to demonstrate at the same time, I’m also, and I listened to some of the speeches last night, I think that tactically, we’re making a mistake. I think something’s happening that we have to be aware of. 

Israeli politics have been a combination of ideology and identity. Who you vote for has been a result of certain ideological positions and also core tribal identities of which party your family voted for. For example, I can’t tell you how many voters Smotrich got, not because they agreed, but because he said, we vote for Tzioni Dati, and he had the name. Same in Likud. People who believe that these are parties who saw me, who respect me. Other parties I don’t vote for because those are the parties who, for generations, have done injustice to me. So Israel was a balance. I vote, you were on the right, you were on the left, both for ideological reasons and then for, as a result of a core sense of identity politics. 

And part of what’s been happening over the last number of years, and I think Netanyahu has been fostering this, is that our ideological differences have been dissipating most ideological differences. There’s the extremes who disagree, but for the vast majority of Israelis on most issues, whether it’s economic security, Palestinians, even state and religion, there is a clear majority of people. Who belong and who believe similarly in similar values.

But it doesn’t mean that we vote similarly because identity is becoming the critical feature that we’re calling upon or that’s influencing our political choices. And as the ideology is being diminished, you have to actually emphasize more the factor of the identity politics. The remarkable thing that’s been happening around the demonstrations against the reform is that we have created a counter-ideology, which is overcoming some of the identity politics.

Yossi: It’s a great insight.

Donniel: Even though most of the people who are demonstrating are still in the center-left. The fact is that when 15 to 30% of Israeli society says we’re changing the way we’re gonna vote, or only 15% say they are for continuing a unilateral judicial reform of a government with such a strong majority, that means something is transcending our identity politics right now.

And you know what it is? The story you just mentioned, a concern for the future of our country. A concern realizing that right-wing, left-wing, that’s true, I don’t think Abu Mazen wants peace and that’s fine, it just doesn’t matter, I do want a country in which human rights are protected. Now, when the demonstrations take the high ground, we are creating a counterbalance to identity policy and that’s been remarkably successful.

Part of what’s been going on around the reasonableness clause is that we are really demonstrating, or it depends how we articulate it, one of the ways in which it is being perceived or being interpreted by the government is that you don’t want to allow me to pass any legislation. And when they talk that way, guess what happens? They’re calling it back to, now, it’s identity. It’s not your ideology anymore. It’s not ideology. Because you really can fight us tremendously on the reasonableness clause. It’s like it’s a hard one. It’s too complicated. And what’s the difference between, because the government is still keeping some reasonableness, but all the reasonableness, and the principal counter position on reasonableness is that we should not be able to override government decisions, but we should be able to override individual ministerial appointments. It is so fine. I’m sensing that it’s power. We have the masses and anything you do is illegitimate. It’s actually, instead of the judicial reform being the focus of an ideological movement, part of it now feels that it’s being used as a language with which to attack.

Yossi: That’s, it’s very, very important.

Donniel: And I’m very concerned, Yossi, because I know the only way we could win, the only way we could win, is with an ideological high ground.

That helps people transcend identity politics. And right now, I think this is actually a breaking point, not for Israeli democracy, but a potentially breaking point in our ability to win as a large liberal camp which transcends left, center, and right. 

But I want to move away from the reasonableness clause itself to what I, I know you, this appeared in the New York Times and in the demonstrations, it’s what’s called as in Hebrew, sheetat hasalami ha’italki, this, uh, how is that translated into English?

Yossi: Uh, the system of gradually wearing the opposition down. 

Donniel: Gradually down, right. So the idea is, is that we are making, we are making the reasonableness clause the ultimate issue, not because of the reasonableness clause, but because of the slippery slope, that the government today is going to pass reasonableness, and then it’s going to go to the selection committee of judges, and then it’s going to go to the attorney general, and then we’re going to get the reform.

But instead of it being the reform, it’ll be stretched out over two years, and each time you’ll ask, is this the big deal or not? So, does the slippery slope argument work, Yossi? Is it strong enough? How do you look at it? Because we know of slippery slopes, and we know of the precariousness of the argument itself. 

Yossi: We had a visit here recently from a Polish expert on how democratic regimes become autocratic, Professor Sadurski, and he laid out four elements of how autocratic governments dismantle democracy. And all four of those elements, I can play them out for you, all four of those elements are what the Netanyahu government has already begun implementing.

So when you talk about a slippery slope, we’re already on the slippery slope. Things that we couldn’t have imagined eight months ago are now what we’re thinking, oh, okay, maybe we shouldn’t be focusing on that. Let’s focus on that. We’re being assaulted in so many ways, in so many fundamental ways that I feel, and again, this is an emotional description, I feel like I’m, I’m clinging to whatever I can on the slippery slope as I’m going down.

And if the government would have said, you know, okay, we’re doing this unilaterally, but we’re not going to do away with the controls over political appointees or whatever it was. Give us, the compromise that you were negotiating with, with the opposition at the president’s house. Give us something of them. They’re not doing that. 

And so you’re right, Donniel. We are going to lose, and this is not a small thing. We are likely to lose some of those who’ve been wavering. And in order for this to succeed, it’s crucial for us to have them. 

On the other hand, look at how the protest movement has been reinvigorated. You said it. Look at what happened last night. And this is true all over the country. And that’s precious when you’re fighting against a government, a ruthless government, in order to be able to continue mobilizing the intensity of opposition. There’s a trade-off here. And honestly, I don’t know, strategically, I don’t know what to say. 

Donniel: I don’t want to depress our audience, but I think it’s going too far. You know, the weakness of the slippery slope, the strength of the slippery slope is that we know, as you said, is when you’re on a slippery slope, even before you get to a cliff, you better stop. Anywhere where you could stop, you have to stop. At the same time, it’s not the cliff. You know, it’s like, you know, the old famous joke in Yeshiva that, you know, beware of the slippery slope because if you have sexual relations, it might lead to mixed dancing. That’s like the classic slippery slope. You know, what is it going to lead to? 

Now, most judicial systems are actually, and moral systems, we’re frightened of slippery slopes. We know they’re real. And we take stands at certain places. I believe, though. This government has a right to legislate. They do. This government has a right to legislate even laws that I disagree with. And I’m gonna have my chance at the next ballot. And in many ways, I’m even counting on them. But we have to win at the ballot. We have to demonstrate. And there’s a very big difference between demonstrating and taking a high ground for every single time a legislation is passed. I want us for the next three years to come out and to demonstrate each time that you are hurting the human rights and the decency and the democracy and the moral fiber of our country.

But I think all of us need to realize the consequences of, what does it mean to build a coalition with the people we disagree with? Which is in essence what we’re doing here, Yos. What we’re trying to do is to form a new coalition between center left and right in Israel around a larger vision of Israeli society. And I think we’re going to have to find a way to talk. The only problem is, I don’t know if the people who are running the demonstrations aren’t correct that this is what I need to do to bring the masses out. So, I’m wondering whether in a Catch-22. 

That to get the people out, we have to fabricate this existential crisis at any moment and, and getting the people out is going to be necessary in order to maintain this moral conversation about the future of Israel. But at the same time, when we get them out. Are we not losing a critical part of what our goal is? Finding a way to dance between them is, I think, going to be critical. Not right now. Right now, the reasonableness clause is, I believe, just the beginning. We’re going to have to find a way to balance this, over and over again throughout the next three years. 

Let’s take a short break. And when we return, Elana is going to try to give us some Torah perspective on reasonableness and the moment that we’re in.

Elana: So here’s the thing. I kind of agree with Yossi in the following sense. The way it’s being done is cause for alarm. I also agree with you, Donniel, that unless you’re able to distinguish between person or people as your opponent and actual laws as what you oppose, you’re in big trouble. And we have this in the United States right now.

But what I want to say is there’s one thing that we didn’t bring up, before I get to the Torah. Let’s go back to that Sahlberg article from the early 2000s. How come no one listened to him? Because he made an incremental suggestion? People hate incremental suggestions. Then, you stoke a crisis, and suddenly it’s an identity marker, and suddenly you have a crisis. I think there’s a little bit of reflectiveness that has to be had to say if people have been talking about this in an incremental way, how come nobody listened to them? Until someone’s doing something that’s a little bit more absolute. 

And by the way, that speaks specifically to your point, Donniel. If you’re going to go absolute to the other side, you’re going to create the exact same problem. We need to think about why incremental voices don’t get listened to. And they need to be listened to. That’s the first thing. Now let’s get to the Torah. 

Now look, this is a little bit what I like about being a Torah voice on this podcast is that the Torah is not here just to support the political perspectives. That’s not what it’s here for. We want an honest understanding of what does Torah have to say about an issue. So what I did is I looked into this point about judicial discretion from a Talmudic point of view. Judicial discretion, let’s repeat it, it is when there is no law, or the law is so ambiguous that you can go in different directions, and it is up to the judges to make a decision and essentially make new law.

That is called, in Hebrew today, shikul da’at, balancing the minds or the opinions, comes right from rabbinic parlance. Shikul da’at is a rabbinic concept. So I want to talk about what we see regarding judicial discretion. And this is not for the sake of saying, do this, don’t do that. It’s for the sake of actually understanding what is the argument about reasonableness, what is the argument about how much discretion you should be giving a judiciary? And so here’s how it goes. The rabbis distinguish between what they call applying law and shikul da’at, discretion, the same way we distinguish between those things. When is a justice applying law that exists and when is a justice using their discretion?

And in fact, in the Talmud, an average judge who makes a mistake on applying a law that’s clear black and white actually has to pay a litigant if they mess up. But, if there was an agreement among the litigants that they were going to use discretion, they were going to listen to the discretion of the judge. Then you don’t have to pay. The judge doesn’t have to pay, even if they made a mistake. 

And here’s how it goes. The Babylonian Talmud, Sanhedrin 5a, Mar Zutra, the son of Rav Nachman, he once adjudicated a certain case. And he made a mistake in the ruling. Upon recognizing this error, he came before Rav Yosef to ask, what he should do. Rav Yosef said to him, well, if the litigants accepted that you were going to decide based on your discretion, and they both agreed that they would accept your ruling, you’re not liable to pay any restitution, even if you made a mistake. But if they didn’t accept you and you were supposed to be just applying the law and you made a mistake, you have to pay.

Now, what does this tell us for our conversation today? It tells us, once we give you discretion, it’s very hard to make you responsible, even if we think you made a mistake. There is no external authority to which you are clearly responsible. That is actually the danger in judicial discretion. It is the danger of the reasonableness clause. Not getting rid of it. It’s the danger to begin with of saying, judges, you can decide what’s reasonable here without any law that’s actually holding you in check. You’re just kind of deciding. I think that’s significant. And I think that’s a reason to make an incremental change, right? 

Second, how do we even determine if you’re right? What exactly, I know we have courts of appeals today. But let’s say you have a court that says this is not reasonable. Who determines if they’re right or if they’re wrong? It’s so, so, so subjective. That’s also in the Talmudic conversation. 

Babylonian Talmud, Sanhedrin 33a. How do we even figure out what an error is? In judicial discretion, so Rav Papa says, for example, maybe there were two rabbis who disagreed with each other and the law wasn’t stated in accordance with one or the other. And a judge decided to act in accordance with one of them. And it turns out that most other judges would do something else. The question of how you actually hold people responsible, look, I’m very blessed to have many amazing nieces and nephews who are Israeli. It happens to be that one of my nephews right now is in Hebrew U Law School, and we’re having a great time. He’s talking to me in real-time, hearing his professors on these issues. 

And I think that the conversation about how much discretion the judiciary has, that’s a conversation that has to be had. But that’s what Rosberg was, he was trying to have that conversation. Nobody wanted to have that conversation. And now they’re going off the deep end. And saying, let’s do away with reasonableness to a great degree. Let’s do away with reasonableness. And now people don’t want to have that conversation either, cause all they want to do is be against the government. 

And I think we’re proposing a third way here, which is let’s actually talk about the issues. Yes, you’re going to have your protests. That’s not where you’re going to talk about the issues, to be honest. The places where you’re going to talk about the issues are the people who are trying to start constitutional conventions.

The Netta Barak Correns, the Tirza Kelmans, the Moshe Halbertals, who are literally trying to put this together and have a conversation. That’s not for a protest. So essentially what I’m saying here is I think you have two modes of discourse. You have one mode of discourse, which is the protest mode, and it’s important because it is a slippery slope and the way it’s being done is really problematic. But you need a different group of people or the same group of people, but in a different environment, to be working on, what does an incremental conversation look like about this that recognizes some of the real flaws? That this legislation is going overboard in correcting, but some of the real flaws. And it hasn’t been dealt with. 

Donniel: Yossi, final words?

Yossi: What I really want to say to both of you is how grateful I am for modeling exactly the kind of conversation that the liberal camp needs to have. We need to be self-reflective. We need to ask the hard questions. Are we doing the right thing or not? And the danger of being mobilized is exactly that, you become one-dimensional.

So, thank you. Now go refute that, Donniel.

Donniel: I couldn’t agree, Yossi, with you more. And here I’m, in fact, going to choose to give you the last word. Thank you. For Heaven’s Sake is a product of the Shalom Hartman Institute. It was produced by David Zvi Kalman with support from Aviva Kat-Manor. It was edited by Gareth Hobbs at Silversound NYC. Our production manager is M. Louis Gordon. Maital Friedman is our vice president of communications and creative, and our music was provided by Socalled. 

Major funding for For Heaven’s Sake is provided by the Diane and Guilford Glazer Foundation of Los Angeles, because of our shared commitment to strengthen the connection between Jews in North America and Israel.

Transcripts of our show are now available on our website, typically a week after an episode airs. To find them and to learn more about the Shalom Hartman Institute, visit us online at We wanna know what you think about the show. You can rate and review us. On iTunes, tell more people, discover the show. You can also write to us at [email protected]. Subscribe to our show everywhere else podcasts are available. 

Thank you both very, very much and see everybody else in two weeks. Thank you all for listening.

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