One of the great talmudic scholars of his day, Nissim of Girona (1320–1376) was also one of very few medieval rabbis who wrote extensively on what, in modern terms, would be termed political philosophy. In the opinion of Warren Zev Harvey, Rabbi Nissim “thought in constitutional terms strikingly similar to those of Tocqueville.” Harvey thus finds this sage’s thought germane to the current political debate in Israel over the extent of judges’ authority, and in particular over whether there should be some check on the supreme court’s ability to overturn duly enacted laws simply because it finds them to be “unreasonable.”
Rabbi Nissim argues in his “Homily on Justice” (Drashot, chapter 11) that the vocation of the judges is to judge in accordance with “righteous judgment” (Deuteronomy 16:18), while that of the kings is to preserve national security. He then pushes this distinction in a radical way that was unprecedented in the history of legal philosophy. The judges, he insists, possess the authority to judge only with righteous judgment; that is, they have no authority whatsoever to judge according to utilitarian or consequentialist considerations. They must judge according to the good in itself and the just in itself. Their considerations, in the language of the philosophers, must always be deontological. The kings, however, who are charged with the preservation of national security, do possess the authority to act according to utilitarian or consequentialist considerations.
Rabbi Nissim writes that when there is a grave threat to national security, the king has the authority to overturn or to “override” the ruling of the judges. He gives as an example a dangerous murderer whom the judges cannot convict owing to procedural concerns (for example, there were not two witnesses). Rabbi Nissim explains that the judges rightly cannot execute him since “righteous judgment” requires strict observance of evidence law. However, the king has the authority to “override” their decision, and to sentence the murderer to death in order to preserve national security (cf. Maimonides, Laws of Kings 3:10). In times of dire emergency, the king invokes the “override clause.”
Read more on Tablet: https://www.tabletmag.com/sections/israel-middle-east/articles/is-bibis-override-clause-jewish