Amid protests and counterprotests, hysterical statements from politicians, and hyperbolic newspaper articles, the debate over judicial reform in Israel also elicited some careful and serious argument—some of which could be found in Mosaic. Yechiel Oren-Harush carefully lays out the case for restraining the Jewish’s state’s supreme court, defends the proposed constitutional changes, and responds to the arguments of these reforms’ opponents:
As a result of [the] judicial revolutions in Israeli government, the basic rules underlying the Israeli governmental structure are constantly shifting. The judiciary now has seemingly exclusive authority to keep changing them as it sees fit—and it does so frequently. Admittedly, common-law systems are intended to evolve, and administrative law under such systems is built up precedent by precedent over the course of centuries. But common law also needs to develop within a fixed and immutable set of rules, established either in a ratified constitution or based on a broad societal consensus. . . . Often, the argument has been raised regarding the problem of the Basic Laws being kneaded “like playdough” by the Knesset to force the Israeli constitution to meet the needs of various governments. And yet, the very same thing can be said of the Court, which time and again changes the very bedrock principles and rules of the relations among the branches on an ongoing basis in order to deal with difficulties arising in this or that case.
Foremost among the concerns of supporters of the status quo is the role the high court has appointed itself as the guardian of human rights, and the fear that, with the court’s power circumscribed, an unrestrained Knesset might trample on individual liberties. To this, Oren-Harush responds:
[Q]uestions regarding the scope of human rights, as well as the proper balance between them and other interests and rights in cases of concrete clashes between them, are usually questions touching on values, not law. Furthermore, it is almost always reasonable to assume that opinions will differ on these matters and that such differences would not be reducible to a question of expertise. There is, in other words, no reason to demand the nation defer to the value judgments of a small group of unelected officials on the basis of their legal training. Instead, the proper place for deciding such moral questions is the Knesset.
Read more on Hashiloach: https://hashiloach.org.il/the-case-for-the-judicial-reform-en/