“Reasonableness” is a doctrine created by the Supreme Court Justice Aharon Barak as part of the “constitutional revolution”. It has no foundation in Israeli legislation.
In recent weeks, a public debate has been unfolding in Israel regarding the concept of “reasonableness” due to the government’s intention to limit it as part of the judicial reform. Unfortunately, many mistaken as well as intentionally false claims have been made. Therefore, it’s important to understand the history of the “reasonableness” concept and why it is critical to limit its scope.
The concept of “reasonableness” in the Israeli legal system has undergone several transformations, turning it into a political tool subject to the exclusive discretion of Israeli judges. It is a doctrine created by Supreme Court justice, Aharon Barak, as part of what is now referred to as the “constitutional revolution” and has no foundation in Israeli legislation or public discourse.
The origins of the reasonableness doctrine
The Israeli legal system inherited the concept of “reasonableness” from the British legal tradition. It allows the court to overturn a decision made by government authorities – from local councils to government decisions – if they are deemed extremely unreasonable to the point that no reasonable person would have made such a decision, “until it is improbable that any reasonable authority would have made the decision.”
This principle was established in the famous British case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation in 1947, which is considered a guiding principle for the concept of “reasonable probability.” In other words, it involves a government decision so extreme and irrational that it cannot be explained through logical reasoning, suggesting that the decision-makers are either irrational or driven by extreme and unprecedented motives.
Until the 1980s, the Israeli Supreme Court exercised restraint, refraining from intervening in the discretionary decisions of government authorities based solely on the concept of “reasonableness.” Instead, it viewed the idea of “reasonableness” as part of the doctrine which only allows it to intervene in cases of “extreme lack of reasonableness”, where the government acted contrary to the authority granted to it by the people. These “pre-constitutional revolution courts believed that they should not replace the elected officials’ judgment with its own and acted accordingly.
The court ruling which changed everything
The turning point came with a famous court ruling authored by Supreme Court Justice Aharon Barak under the innocent-sounding title “Golden Pages.” In this ruling, Barak introduced a new theory that transformed the concept of “reasonableness” into an independent and unique form of intervention.
Barak argued that even if a government decision was made within its authority and based on relevant considerations, the court could invalidate it due to “substantive unreasonableness,” if it believed that the decision-makers did not properly weigh the balance between various interests and factors. In other words, Justice Barak empowered the court to replace the government’s judgment with its own judgment.
Early critique of Barak’s “reasonableness” doctrine
This step was radical and unprecedented, and at the time, Chief Justice Moshe Landau opposed it. He wrote in his dissenting opinion: “The main danger that I see is that the term ‘reasonableness’ will frequently be used to define an objective measure.” According to Landau, Barak’s proposal would subject government decisions to a renewed review “as if the court were conducting a rehearing as to the correctness of the decision,” which would create a procedure where the court intervenes itself in the rationality and effectiveness of administrative decisions of the government.
Landau was concerned, and rightfully so, that the adoption of Barak’s theory regarding “reasonableness” will lead to the court overstepping its legitimate authority. This concern was also shared by Justice Solberg who said that the “reasonableness” doctrine “empowers the court to excessively intervene in administrative discretion, even regarding non-legal aspects of discretion… In other words, the court exceeds the natural role it is meant to fulfill and encroaches upon the domain of the executive branch.'”
This critique was echoed by former Supreme Court Justice Asher Gronis, who asserted that Barak’s use of the concept of “reasonableness” was merely a “cover for disagreement with the outcome” of governmental decisions and did not entail genuine legal concerns.
“Reasonableness” – a political weapon for the Supreme Court
When an activist supreme court creates new fundamental rights through its rulings, its authority becomes greater than ever before. Through a long list of cases where the Israeli Supreme Court used the “reasonableness” doctrine to annul governmental decisions, it becomes evident that the court is applying its own value-based political considerations as opposed to strict legal reasoning.
Here is a partial list of where the “reasonableness concept was used by the courts:
- Was used to prohibit the expulsion of terrorists to the Gaza Strip during the Second Intifada.
- Invoked to establish refugee status for African infiltrators arriving from countries where female genital mutilation is practiced.
- To compel the Minister of Education to award the ‘Israel Prize’ to a supporter of BDS.
- To overturn a decision by the Israel Film Council to ban the screening of the film “Jenin, Jenin” that spread libel against IDF soldiers.
- Overturing the decision of the Minister of Interior to prevent BDS activist Lara Alqasem form entering Israel.
- Overturned the decision by the Minister of Defense to deny entry of families of terrorists from Judea and Samaria to an alternative Memorial Day event.
- To compel the Minister of Science to appoint a prominent professor who supported conscientious objectors to senior government position.
- Forbid then Minister of Justice, Amir Ohana, from appointing attorney Orli Ben Ari to acting state prosecutor in the Attorney General’s Office.
- To obligate the government of Israel to invest in armor for communities surrounding the Gaza Strip, among others.
Those who read this partial list will easily understand that “reasonableness” has nothing to do with legal considerations; instead it is a way of whitewashing extreme judicial activism. There is nothing extreme about any of the decisions above that cannot be explained through regular logical tools. There is a reasonable logic to each, and even a majority of the public supports them.
Reforming the “reasonableness” doctrine is not enough
Under the pretext of “reasonableness,” the Israeli courts have overstepped their authority, interfered with government decisions on both right and left, and have seriously undermined the separation of powers. Restoring the balance between the branches of government is crucial and urgent, and reforming the concept of “reasonableness” is a necessary step.
This notwithstanding, it is important to clarify that despite the significance and urgency of reforming the concept of “reasonableness,” it alone will not solve any problems. For this first step in the judicial reform to achieve its goal, it is necessary to appoint judges who respect and implement the law according to the legislator’s intent, rather than interpreting it according to their personal views. Therefore, it is crucial to reform the committee that appoints judges which will enable judges to be chosen who reflect the values of the general public and respect the law. This is vital and at the core of the effort towards making Israel more democratic.
Yiska Bina is the head of the research department at The Movement for Governability and Democracy.