On October 7th, Hamas launched attacks that killed over 1,400 Israelis. Yet even prior to these attacks Israel has been consistently in the news for another reason. In July 2023, the Knesset (Israel’s legislature) passed reforms to the judiciary to get rid of the “reasonableness doctrine.” Many Israelis perceive these reforms as an assault on the independence of Israel’s courts and have protested in large numbers. The entire controversy over judicial reforms is a symptom of a larger issue: Israel lacks a written constitution. Without one, Israeli society cannot have an objective standard to resolve disputes between the branches of government. 

Americans may be surprised to learn that, unlike their own country, the State of Israel does not have a written constitution. Instead, the Knesset drafts “basic laws” which will be written into a formal constitution at a later date. One of the downsides of lacking a written constitution is that the courts of Israel have adopted something known as the “reasonableness standard” in deciding cases. Basically, this means the Supreme Court of Israel can block laws or other government actions if the judges believe they are unreasonable.

A good example is when the court invalidated the appointment of Aryeh Deri to be minister of the interior and minister of health because Deri had been convicted of corruption. The other side of this standard is who decides what is or isn’t reasonable. Human beings are flawed creatures and frequently make irrational decisions. What one deems reasonable is completely unreasonable to another. In other words, one man’s reason is another’s foolishness.

A more debatable instance of the reasonableness standard came in 2019 when Justice Minister Amir Ohana appointed Orly Ben-Ari to the temporary role of State Prosecutor. Attorney General Avichai Mandilbelt opposed the appointment despite the fact that Ohana acted legally by appointing Ben-Ari to the post. Nor was Ben-Ari legally barred from holding the post. Mandilbelt opposed the appointment simply on the basis of “reasonableness.” The saga ended with Ben-Ari, who was both eligible and qualified for the post, withdrawing her nomination.

On July 23rd, the Knesset passed a reform that forbids the court from using reasonableness as a standard to overturn a law. This reform would force the courts to rely on existing laws and basic laws. Therefore, court decisions would rely on what laws objectively say instead of what judges feel or reason to be true. While the law is a restriction on the courts, proponents argue it would force the court to be more objective.

Critics of the reform say it is an assault on democracy. However, the reverse is true because there is no democratic check on the power of the Israeli Supreme Court. In the US, justices are appointed by the president and confirmed by the Senate. In Israel, the checks do not exist as judges appoint their successors. Therefore, the judicial reform actually defends democracy in Israel.

There is another issue at play: what if the courts rule the reform to be unreasonable? In that case, Israel would be in a constitutional crisis where it would be impossible to reform the judiciary’s power because the courts could just rule against any limit to its power. Neither the Knesset nor the population as a whole would have a check on the courts’ power. If there is no legal pathway to rein in the court’s power, it can just overrule any law it wants for any reason at any time.

Israel’s constitutional issues could be solved with a written constitution. In the United States, the Constitution defines the checks and balances against each branch of government. In Israel, no such checks exist because there isn’t a written constitution defining them. If there was a written constitution in Israel, the courts would have an objective standard to decide cases rather than the subjective thinking of judges. It would add a greater level of stability that is lacking thanks to the unreasonableness standard.

A written constitution will not cure all the ills of Israeli society. All constitutions are imperfect documents written by imperfect people. What it will solve, however, is the problem of subjective reasoning in legal disputes. While American justices make judgments without reference to the Constitution, they are often rectified over time. Israel should afford itself the same constitutional luxury.

The protests in Israel over the summary are a symptom of a greater issue: lack of constitutional clarity. The Supreme Court can use whatever standard it wants to overturn laws, including those that limit the courts’ own power. While the “unreasonableness standard” needs to be done away with, it is only the first step. What Israel needs is a written constitution to provide an objective standard for the courts and the other branches of the Israeli government.