Judicial reform debate: Is Israel’s reasonableness standard reasonable?

The reasonableness doctrine isn’t explored enough in the debate, but Israeli citizens would do well to review the arguments on both sides.

By MICHAEL STARR, JPOST 25.5.23

Israel’s judicial reform can be a daunting topic to understand, as it is not one proposal, but several provisions. Some are simpler and more straightforward, like the Judicial Selection Committee or the override clause. But some issues, like the reasonableness standard, are more complicated.

The reasonableness standard resurfaced in the national debate last Thursday, when Israeli media reported that the coalition and opposition had come to a consensus on the matter. According to the report, the legal standard would be restricted from application to the government as a full body, but would apply to administrative branches and ministers. This would include appointments to ministerial positions, which would be the administrative decision of the prime minister rather than the whole government.

The Thursday report made few waves beyond specialized NGOs and politicians, a testament to it being less understood. Without an understanding of the subject, one cannot know whether to be outraged or mollified by such news. This is why it is important to explore the content, history and importance of the subject with legal experts.

What is the reasonableness standard?

The reasonableness standard is shorthand for the “extreme unreasonableness doctrine,” said Israel Law and Liberty Forum executive director Yonatan Green.

The doctrine is a common law legal principle applied to government administrative decisions, according to Dr. Amir Fuch, a senior researcher at the Israel Democracy Institute, much in the same way that judicial review is applied to legislation.

Fuchs explained that the reasonableness standard is a legal tool in which “the court should ask itself would a reasonable government, or would a reasonable minister, or would a reasonable anything decide the way the government decided.”

Under this standard, the court can rule on administrative matters brought before the bench as extremely unreasonable, and order the government branch to bring its administrative action in line with reason.

Green said that the doctrine “meant that the court could review or decide against any government action regardless of its actual legality, regardless of whether it was authorized.”

“Any government decision of any kind – from the very top government decisions like who to appoint to the cabinet or whether to go to war, down to the most minute decision by a social security bureaucrat or some tax official – can be reviewed by the court,” Green said. “This is the most subjective standard one can possibly conceive of.”

“Any government decision of any kind – from the very top government decisions like who to appoint to the cabinet or whether to go to war, down to the most minute decision by a social security bureaucrat or some tax official – can be reviewed by the court. This is the most subjective standard one can possibly conceive of.”

Yonatan Green

While Fuchs said that in a way the standard can be perceived as subjective – and he understood why some would see it as such – but “the verdict cannot be, ‘I think this is a bad decision’ or ‘I don’t like this decision.’”

“It has to be very extreme unreasonableness, something that no one in their right mind would decide,” Fuchs said. “But of course, even if we define it like that, there will always be disagreements about what is extreme unreasonableness.”

Tomer Naor, the chief legal officer of the Movement for Quality Government in Israel, explained reasonableness as applying issues that may not be explicitly forbidden by the law, but are obviously “not done,” such as a murderer who wants to collect a family member’s life insurance.

According to Green, reasonableness is outside the ordinary grounds of legality, in which something is done in accordance with the law or not. 

Green described the doctrine as being more about the balancing of various interests and considerations. If the government implements a policy or action, the court can say that “the government did not weigh the various considerations correctly.”

“The court simply says, ‘We think your conclusion you reached is incorrect and therefore it’s unreasonable,’” Green said.

The standard isn’t written in any law, explained Avi Bell, a law professor at Bar-Ilan University and San Diego University. “It’s a judge-made doctrine.”

This is known as common law, which is created through the written opinions of judges and justices. Reasonableness’s entry into Israel’s common law has been hotly debated – whether the current iteration is a new invention of an activist court or a precedent inherited from the British.

What is the history of the reasonableness doctrine?

Many of the issues at the heart of the judicial reform debate lie in powers created or expanded by the judiciary in recent periods of judicial revolution.

Naor explained that “the reasonableness standard didn’t come to our legal system in 1980, but in the first days of the state,” when it was adopted from the British.

Green maintained that the names of the British doctrine and Israeli doctrine are similar, but differ fundamentally, so characterizing the doctrine as coming from Britain is historical revisionism.

In the UK, the doctrine comes from the 1947 Associated Provincial Picture Houses Ltd v Wednesbury Corp ruling, Green explained. “Many people call this Wednesbury unreasonableness.”

The Wednesbury doctrine pertained to situations in which a law or authorization was used in such an outrageous way and those creating it had “never conceived that it would be used in such an outrageous way and therefore never meant for the authorization to include that kind of action.”

Green gave the example of the prime minister appointing a horse to be a minister. Although Israeli prime ministers have the legal authority to appoint ministers, and the law doesn’t explicitly say that the minister has to be human, this would be considered an outrageous use of the law.

Bell said that Wednesbury doctrine was against arbitrary and capricious use of power, such as closing down every bank in a city for fiscal health, which wouldn’t seem plausible and isn’t a reasonable explanation for the action.

Israel adopted reasonableness, based on Wednesbury, in a 1950s case ruling, but principles on the clause’s implementation were introduced in subsequent rulings starting in the late 1970s.

“Traditionally in Israel, judges would review administrative action in order to see if it complied with the law,” Bell said. In the 1950s the court began to interpret laws as requiring compliance with basic human rights, and then came up with policy review.

The current version of reasonableness, according to Green, was developed by the High Court of Justice in the 1980s, but Naor said that “before the 1980s they used it in Israeli courts.

“It is possible to argue that in the 1980s it was expanded, but to argue that is when it was created is incorrect,” Naor said.

Bell said, however, that former Supreme Court president Aharon Barak and his fellow justices were “not shy about explaining that he was changing the rules” and that one can “consult any administrative law textbook from the 1980s and see that everyone acknowledged it.”

Naor argued that the standard has evolved naturally, and that “the court has changed along with the times. The court is not disconnected from the events in the country.”

How has reasonableness been used in Israeli law?

Israeli reasonableness differs from the Wednesbury doctrine, and therefore is employed differently. Critics argue that it is a subjective tool for judicial activism, and proponents say that it is a vital tool for addressing the needs of citizens.

Naor said that generally, the standard can be separated into use on appointments and government decisions.

If a decision is passed by the government, it needs to follow the proper process laid out by the government itself, he explained. If this doesn’t happen, citizens can bring this improper procedure before the court. This can apply to appointments, in which someone can be given a position because they’re the best person for the job, but then it is discovered that an insufficient background review was done.

The case of Shas chairman Arye Deri was a good example, Naor said. This case was decided at the beginning of the year, in which it was determined unreasonable that Deri, a convicted criminal, would assume ministerial positions.

Bell said that it should be for the government to interpret who is able to be a minister or not. Green pointed out that this use of the judiciary was different than anywhere else in the world. “I invite any reader to think whether, in their country, the court can strike down authorized appointments to cabinet or to the government itself,” Green said.

He pointed out that reasonableness was used far too often in Israeli rulings. Fuchs argued that only a small amount of cases are actually interfered with, but Bell contends that the court invited thousands of petitions per year, so it only seemed small in relation to the large amount of petitions.

Green said that “there are dozens, hundreds, if not thousands of examples of places where the court has intervened on these grounds.”

Fuchs said that it is important to understand that currently “it’s very rare that the court will intervene with a government decision,” but said that it is true that this type of legal power has been used relatively more than in other countries – but only because there are very few checks in the Israeli system against the government.

Bell argued that the citizen’s recourse against government decisions was in the ballot box, but Fuchs argued that sometimes one doesn’t have time to wait for an election.

Fuchs gave an example of how reasonableness can be used to protect citizens when time is of the essence, citing a case in the early 2000s on the reinforcement of southern schools against rocket fire. Parents petitioned for the entire school to be protected, but the government didn’t want to spend tens of millions of shekels on the upgrade. While the government controls the purse strings, it also legally binds parents to send children to schools. Therefore, the court determined that it was unreasonable for the government to demand that children attend schools, but not invest in protecting them.

Naor contended Israelis were protected by the standard. “Over the years, the court has turned the reasonableness standard into a key legal tool on government activities that directly impact citizens.”

Reasonableness was an essential tool for human rights protections, Naor said. Green, however, said that the chief principle used in the protection of human rights was that of proportionality. He said that if reasonableness were abolished, it wouldn’t have any impact on the adjudication of human rights. Fuchs said that without reasonableness, there would be fewer interventions, but it is difficult to know how common law can develop.

What’s a reasonable thing to do?

In January, Justice Minister Yariv Levin proposed several judicial reform provisions, including that of the reasonableness standard. He argued that it should be abolished completely, but in deliberations in the Constitution, Law and Justice Committee, it has been proposed to severely reduce the doctrine.

As the judicial reform negotiations continue at the President’s Residence, it can be difficult to predict if a compromise on reasonableness can be met within the context of other sensitive provisions.

“At the end of the day, the idea of dividing things up like a salami isn’t possible,” Naor said. “The so-called opposition doesn’t have a mandate to make these decisions.”

Naor sees it as a game in which the reform would slowly be introduced by its proponents through future coalitions working on past changes.

Fuchs said recent reports can be seen as a compromise, but that the bigger picture needed to be considered. The reasonableness standard only has any utility as a legal tool if other aspects of the judicial reform, such as the independence and autonomy of the judiciary and legal advisers, are assured. Fuchs said that unless both sides of the compromise on reasonableness are enshrined in entrenched Basic Laws, the coalition can always change it.

Bell said that reasonableness was one of the central issues of the reform, but that almost all the reform proposals reduced or eliminated the doctrine. Recent reports about compromise, and keeping policy review of non-full government decisions, would preserve the bulk of the use of reasonableness.

The reasonableness doctrine isn’t explored enough in the debate, but Israeli citizens would do well to review the arguments on both sides so that they can make their own decisions about whether it is reasonable or not to keep such a doctrine in Israeli law. •