Israel’s Judicial Reform: Where is the Analytical Context?

Roda Mushkat

Johns Hopkins University

This is a critical juncture in Israel’s political and judicial evolution. A long established, to a considerable extent internally rather than externally, judicial order is, depending on the outcome, likely to undergo either radical or near radical surgery. The new reality will feature, among other restrictive measures, potentially “less neutral” judicial selection procedures and curtailed powers of the judiciary in relation to government decisions and policies.

Let me first reveal my cards, so to speak, and state my general position on this issue. I hope that it won’t cause discomfort to former Chief Justice Aharon Barak, a life-long mentor, even if for the most part indirectly, who has done more than anyone else to shape my values and practices as a legal scholar and teacher. I believe that, if done in a normatively and operationally appropriate fashion, an external review of any judicial system is justified in principle. Moreover, it is also my opinion that a slight (nothing along the lines contemplated) shift away from the current status quo is warranted.

That said, my focus here lies elsewhere. I am surprised and uneasy about the analytical shallowness of the discourse revolving around such a fundamental and crucial policy issue. I have not seen a single reference to theories of legal and policy reform and how the current Israeli government proposals fare, substantively and structurally, in that light.  The most ardent and influential proponent has been Professor Eugene Kontorovich, a leading expert in international law and active in the field of law and economics, but perhaps lacking in-depth knowledge and experience in comparative constitutional law. Nor may his considerable interdisciplinary skills be discerned in any of his positive comments and reflections on the proposals. Importantly, some high-level independent or semi-independent bodies (equivalent to, eg., the United Kingdom’s Law Commission) are, practically as well as theoretically, expected to play a key role in configuring and reconfiguring the legal order in rule-of-law based well-functioning democracies, and this has not been the case in Israel.

Additionally, and somewhat dramatically, the “super-powers” supposedly exercised by the Israeli Supreme Court currently are portrayed by those advocating for the judicial reform as an undemocratic aberration, almost without any parallel. This is far from what the academic literature tells us and from reality. As Giandomenico Majone has firmly established in his several studies, non-majoritarian institutions are an integral and vital part of the democratic landscape. Both the Israeli Supreme Court and the country’s central bank, the Bank of Israel, fall into this category. The same is true of the US Supreme Court, for example, and the Federal Reserve System, the so-called “Fed.” As to “super-powers” and wide impact, I have no doubt whatsoever that the monetary authorities outperform by a comfortable margin their judicial counterparts. It is for some reason difficult to obtain comprehensive data on where Israel comparatively stands in terms of judicial independence and the rule of law, but it is telling that all top rankings are occupied by Scandinavian countries and there is no hard evidence that Israel is an outlier on the high side. 

The lofty idea that a representative or even a direct democracy is “untouchable” because it reflects the “will of the people” is questionable. As Nobel laureate Kenneth Arrow has demonstrated, it is mathematically impossible to precisely convert individual votes into an aggregate fully consistent with the pattern of the underlying distribution. The problem is compounded by opportunism, short-termism, logrolling, and executive-legislative information asymmetries on the supply-side of the democratic arena; and low participation, strategic voting, and dominance of special-interest groups on the demand side. These shortcomings account for the emergence of non-majoritarian institutions across the policy spectrum rather than merely in a narrowly circumscribed space. Their purpose is not to subvert the “will of the people” but, where necessary, depoliticize public policy making and align it in a principled and transparent manner more closely with the public interest.

Moreover, from an analytical perspective, the exclusive comparisons with the US by advocates for the reforms and solely drawing inspiration from that source is not without practical difficulties. In comparative political and socio-legal studies, there is a basic choice between a most-similar system design and the most-different variant. The US is Israel’s closest ally and a home to many Israeli scholars and students. It is still perceived as the “land of opportunity,” even though the modest per-capita income gap was steadily shrinking before the new Israeli government came to power and Switzerland’s direct democracy is 50 percent richer in terms of this criterion, and also more competitive economically, politically more stable, socially more cohesive, less weighed down by income and wealth inequalities, less corrupt, environmentally “cleaner,” and more innovative. The point is that Israel and the US are similar in many respects—indeed, Israel is even “better” in terms of some relevant criteria—and Israel should reach beyond the US in seeking to enhance the effectiveness of its governance regime, including the judicial component. To provide just one obvious example, the Scandinavian countries that are deemed to have superior judicial systems to that of the US have mechanisms for selecting judges which are hardly at all politically “contaminated.”

Last but not least, regime and system theorists place a heavy emphasis on “fit” or the need for elements of a complex economic, legal, political, and social entity, including those that constitute the external network, to be in as much harmony as possible. There is no compelling reason why the Israeli judiciary should be regarded as an exception. Again, however, I have not come across a single argument in support of the Israeli judicial reform proposals duly couched in “fit” terms, despite the fact that accomplished, experienced, and versatile legal scholars were apparently the de facto architects behind this grand scheme to recalibrate the country’s governance regime. Whether the proposals are in tune with Israeli diplomatic, economic, legal, political, and social realities, particularly the country’s (one of the various similarities with the US) less than stellar corruption record, thus remains uncomfortably shrouded in uncertainty. The corollary is that, whatever the selective substantive merits of the blueprint outlined, the analytical underpinnings are weak and, to make matters worse, the process leaves much to be desired.

Dr. Roda Mushkat is Professor of international Law at the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University and Honorary Professor of Law at the Faculty of Law, University of Hong Kong

Suggested citation: Roda Mushkat, ‘Israel’s judicial reform: Where is the analytical context?’ IACL-AID Blog (7 February 2023) https://blog-iacl-aidc.org/2023-posts/2023/2/7/israels-judicial-reform-where-is-the-analytical-context.