There is nothing wrong with reasonableness. It is reasonable, after all, and what could be better? Unreasonableness? Perish the thought. Nor can there be any serious reservation about the use of this criterion for the Supreme Court of Israel. That country has no Constitution, or Bill of Rights that in other nations with such documents would bind their Supreme Courts. What other criterion may for the Supreme Court of Israel apply, if not that? Certainly not unreasonableness. That would be unreasonable and should be rejected on that ground alone.
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Among many other things, the Supreme Court of Israel insists upon its right to vet the personnel decisions of the Knesset in the names of reasonableness. In other words, it will substitute its tastes, desires, goals, and preferences for those of the duly elected representatives by the electorate of that nation.
To many, this appears to be the height of unreasonableness. After all, given at least some semblance of respect for the democratic processes, members of the Knesset were duly elected, while those of the high court were merely appointed.
But this does not yet even begin to get at the deviations of these sorts of rulings from the niceties of democracy. For who appointed the members of the Supreme Court of Israel? Why, other members, previously appointed ones! That is to say, the Israeli Supreme Court is a self-perpetuating organization, pretty much completely independent of the wishes of the voters of that nation.
Suppose that the constituency wishes a 180-degree change in policy, in what is considered "reasonable." Posit that this is a super majority of 99%. It is almost unanimous. At the very next election, the membership of the Knesset will alter so as to reflect this sea change in preferences. But membership of the court will not change by one iota. It will march blithely forward, totally unaffected. This system thus begins to resemble dictatorship, not anything associated with democracy.
Posit that the membership of the court was initially based upon appointment by the Knesset and thus at least indirectly by the voters. Then, this system resembles nothing so much as one vote, one time.
There are two possible remedies to this lamentable state of affairs. First, Israel moves from a unicameral system to a bicameral one. At present, the Knesset is the only legislative body. This way of dealing with the imbroglio is to consider the Supreme Court as a second, and equal partner in this vein. There would be not one but two "houses" each one voted upon, directly, by the entire citizenship. The result would be similar to that prevailing in the U.S., where there is both a Senate and a House of Representatives. Together, they comprise the Congress.
Another possible solution would be to borrow a different leaf from US practice. Maintain the court exactly as it now is. Let them, by all means, use "reasonableness" or whatever else they wish (dice, Ouija boards, tarot cards, coin flips) in their deliberations. But instead of allowing themselves to self-perpetuate, require that all new members be appointed by the Knesset. In that way, at least a vestige of (indirect) democracy will have been attained.
But the Israeli Left and their supporters in the U.S. and elsewhere maintain that the present system is democratic, and any radical change, such as depicted in either of these proposals, would be in effect fascist. The US legal system is fascist? Have all these people graduated from Harvard, MIT, or Penn where black is white, white is black, and never the twain shall meet?
This is not to say that the US system is perfect. But to reject it as democratic on these grounds beggars belief. And yet tens, hundreds of thousands of Israelis, marched in the streets in protest against any alteration in this direction.
Is it possible that the horrid events of October 7 were at least in part due to these massive demonstrations? After all, what better time to attack a country when it appears that it is greatly divided? We will not likely ever know for sure whether or to what degree this is true. But this cannot be only an idle speculation.
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