The Case for Cancelling the Reasonableness Clause

Last Tuesday, Israel’s Supreme Court heard the opening arguments concerning an amendment to the Basic Law governing the court’s own function, passed by the Knesset on July 24. The Basic Laws function in the lieu of a constitution, as the Jewish state does not have one. According to the amendment, the court may no longer countermand the government’s decisions on the grounds that they lack reasonableness; the petitioners hold that this amendment is itself unconstitutional, and the High Court should strike it down. Herewith, an excerpt from the government’s brief stating its case before the court. (Translation by Mida.)

The Government of Israel contends that, the state of Israel being a democracy, the source and authority of all government agencies is the sovereign—meaning the people, the citizens of Israel. Israeli citizens are represented in the Knesset, in a manner established in Basic and regular laws, thus authority and its source are derived from the rules established by the Knesset—the Basic Laws—and none supersedes them.

The Government of Israel contends that as Israel abides by the rule of law, no person or body stands above the law. And should the law be subject to Basic Laws, as per the doctrine developed by this esteemed court, then no man or body stands above the Basic Laws. . . .

The petitioners ask the esteemed court to deviate from preeminent foundational precepts, premises widely accepted up until recently. It has always been obvious that in a system of law, judges are subject to the law as established by someone other than the judges, to whom they must defer. Judges are not masters of themselves, nor are they masters of the law; their actions are circumscribed by the law and the Basic Law; just as are the other government bodies. At times, if the letter of the law is clear they cannot give succor. Their politics or values cannot supersede a clear law or find their way into its language.

The creator of laws is the legislature. It is it that must aspire to just laws. However, modern democracies are not content to trust the legislature. Many of them create mechanisms that check and balance the governing power, including the legislative authority, in order to prevent a slide into harmful and unjustified government use of power. The courts review the actions of the legislative and executive branches of government. However, in their turn, the courts do so within the bounds of the authority invested in them, the source of which is also of the sovereign’s direction through its representatives.

Read more at Mida

More about: Israeli democracy, Israeli Judicial Reform, Supreme Court of Israel

In the Next Phase of the War, Israel’s Biggest Obstacles May Be Political Rather Than Military

To defeat Hamas, Israel will have to attack the city of Rafah, which lies on the border between Egypt and Gaza, and which now contains the bulk of the terrorist group’s fighting forces as well as, most likely, the Israeli hostages. Edward Luttwak examines how this stage of the war will be different from those that preceded it:

To start with, Rafah has very few of the high-rise apartment houses, condo towers, and mansions of Gaza City and Khan Yunis. This makes street-fighting much simpler because there are no multilevel basements from which many fighters can erupt at once, nor looming heights with firing positions for snipers. Above all, if a building must be entered and cleared room-by-room, perhaps because a high-value target is thought to be hiding there, it does not take hundreds of soldiers to search the place quickly.

Luttwak also argues that the IDF will be able to evacuate a portion of the civilian population without allowing large numbers of Hamas guerrillas to escape. In his view, the biggest challenge facing Israel, therefore, is a political one:

Israel will have to contend with one final hurdle: the fact that its forces cannot proceed without close coordination with Egypt’s rulers. President Sisi’s government detests Hamas—the Gaza offshoot of the Muslim Brotherhood they overthrew—and shed no tears at the prospect of its further destruction in Rafah. However, they also greatly fear the arrival of a flood of Palestinians fleeing from the Israeli offensive.

As for the Israeli war cabinet, it is equally determined to win this war in Rafah and to preserve strategic cooperation with Egypt, which has served both sides very well. That takes some doing, and accounts for the IDF’s failure to move quickly into Rafah. But victory is Israel’s aim—and it’s not going to give up on that.

Read more at UnHerd

More about: Egypt, Gaza War 2023, Israeli Security