Abolishing Israel’s Reasonableness Standard: An Explainer

The Knesset just passed the first step in the controversial judicial overhaul plan. What does it mean and what happens next?

Elisheva Goldberg
August 1, 2023

Protestors block the road leading to the Knesset as a police water cannon fires during an anti-judicial overhaul demonstration in Jerusalem on July 24th, 2023.

Eyal Warshavsky/Sipa USA via AP

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On Monday, July 24th, Israeli Justice Minister Yariv Levin ascended the Knesset podium to give a speech in advance of a vote that would codify a piece of his program to overhaul Israel’s judiciary. “This law,” he said, “will return Israel to the ranks of democratic nations.” As Levin began his speech, all 56 members of the Israeli opposition walked, or were escorted by Knesset security, out of the room. The 64 members of the Knesset who remained in the room, all of whom were members of Prime Minister Benjamin Netanyahu’s ruling coalition, passed the amendment unanimously.

The law amends a crucial paragraph in Israel’s Basic Laws (the name given to draft chapters of the country’s future constitution), stripping Israeli courts of one of their key oversight tools—the “reasonableness standard.” Since the 1980s, the standard has enabled courts to overturn arbitrary, or “unreasonable,” administrative decisions made by government officials. By removing the standard, the new law opens the door to capricious—or corrupt—decisions by elected leaders. Opposition leader Yair Lapid called the law’s passage “a complete breakdown of the rules of the game,” stating that the government is entitled to choose the state’s direction, but not alter its fundamental character.

The new law is destabilizing a country already in the throes of chaos. In the five days leading up to the bill’s passage, hundreds of thousands of Israelis walked from Tel Aviv to Jerusalem in protest. On the day of vote, aerial footage showed huge crowds packing the streets around the Knesset compound. Meanwhile, about 10,000 army reservists declared that they will not serve with this legislation on the books. In the immediate wake of the law’s passage on Monday, protesters ramped up their actions with acts of civil disobedience on a central highway in Jerusalem, Tel Aviv’s Kaplan Street, and other transportation arteries around the country. In a number of cases, the police responded with violence, leading close observers of Israeli society to worry about civil war. To untangle what the reasonableness standard means, the effects of the legislation undoing it, and what the new law means for the future of the Israeli protest movement, we’ve put together this explainer.

What is the function of the reasonableness standard?

Unlike in the United States, Israel’s ruling government functions as both the legislature and the executive. This means that the judiciary—and specifically the Supreme Court—is the only real check on the power of the government. The reasonableness standard, which comes from British common law, is one tool courts can use to fulfill this role.

The standard was first introduced when Israel was founded, expanded in scope in 1980, and has since been used to stop Israeli officials from making capricious or perfunctory executive decisions. For instance, in 2007, the Defense Ministry decided to fortify certain middle and high school classrooms to make them “rocket-proof,” with the understanding that if a rocket siren sounded, students in unprotected classrooms would run to these “protected zones.” But the courts ruled it “unreasonable” to protect only some classrooms, and ordered the government to invest more money in the program so all classrooms could be fortified. The reasonableness standard came into play again in 2022, when former Finance Minister Avigdor Lieberman decided to end childcare subsidies for approximately 18,000 families whose fathers studied in yeshivas full-time in an attempt to encourage more Haredi men to enter the workforce. But the courts said that such a move, which was set to take immediate effect, was unreasonable, and instructed the government to wait to end it until the end of the school year. According to Yaniv Roznai, co-director of the Rubinstein Center for Constitutional Challenges at Reichman University, the power of the standard resided in its function as a deterrent. “Every minister and every bureaucrat knows that they must do very good work during the decision-making process,” Roznai said. “Otherwise their action might be regarded as unreasonable.”

In addition to affecting lower stakes bureaucratic decisions, the reasonableness standard also allowed courts to keep a check on corrupt behavior. If a minister fired a civil servant who did not align with their political agenda, only to immediately hire someone else more amenable, the court could consider this unreasonable and reverse the decision. This standard even applied at the highest level of government, giving courts the power to prevent Netanyahu from—for instance—firing an attorney general and replacing her with someone more “loyal.” But the removal of this democratic check, Roznai said, “basically allows the government and the ministers to get rid of independent gatekeepers and replace them with ‘yes men.’”

Why does the Israeli right want to abolish the reasonableness standard?

The argument of the judicial coup’s proponents, especially Yariv Levin, has always been that the system currently gives too much power to unelected judges, and those judges need to be brought to heel before elected lawmakers. But many observers believe that there are ulterior motives at play. Shir Nosatzki, a protest organizer who runs the political engagement NGO Have You Seen the Horizon Lately, told Jewish Currents that the annulment of the reasonableness clause, and the judicial overhaul more broadly, was motivated by self-interest.

Back in January, Netanyahu appointed Shas Party leader Aryeh Deri as the Minister of the Interior and the Minister of Health despite Deri’s criminal history (Deri was convicted of various criminal offenses, including tax evasion, corruption, bribery, and fraud). However, the Supreme Court disqualified Deri, calling his appointment “unreasonable in the extreme.” Once he was denied ministerial portfolios, Deri became a political headache for Netanyahu, challenging the stability of his coalition. So just as the Supreme Court was preparing to use the reasonableness standard to reverse Deri’s appointment, Levin introduced the Netanyahu government’s plan to hamstring the judiciary.

Netanyahu’s own situation is perhaps even more salient. The prime minister is on trial for corruption, bribery, and breach of trust. “He has a personal interest in weakening the judiciary, and somehow making his case disappear,” Nosatzki said. Netanyahu’s Communications Minister Shlomo Karhi has said on the record that the only thing standing between Netanyahu and firing the attorney general, the legal authority overseeing his trial, is the reasonableness clause, which was annulled last week. Since then, another bill limiting the power of Israel’s gatekeepers was published on the Knesset website. This bill, co-sponsored by 11 members of the ruling Likud Party, would strip the attorney general of the power to oversee the prosecution of government ministers—including the prime minister. The bill generated such outrage that its initial sponsor promised to withdraw it. Still, such a move is certainly on the table and, like the removal of the reasonableness standard, it is aimed at helping halt Netanyahu’s trial.

Besides an effort to personally evade the courts’ supervision, the removal of the reasonableness standard is also Netanyahu’s bid to appeal to different members of his ruling coalition. By appointing cronies and removing gatekeepers, the settler flank can use the new law to advance its goals of annexing parts of the West Bank and encouraging Arab residents—on both sides of the Green Line—to go elsewhere. Similarly, the law dovetails with the goals of the Haredi parties, who make up another key flank of the ruling coalition and who have long attacked the courts from a populist angle, most notably in 1999, when a quarter of a million ultra-Orthodox men descended upon the Supreme Court to protest a spate of rulings that eroded the power of religious authorities in Israeli public life. According to Noam Vidan, co-founder of IDEA—an NGO that works to build up Israel’s democratic infrastructure—“we’re seeing a government that combines right-wing populists and the radical nationalist settler movement, together with the Hareidim.” If we look at the bigger picture, she added, the judicial overhaul is clearly designed to serve this partnership of interests.

What was the protest movement’s response to the new law?

In the lead-up to the amendment’s passage, the protest movement dialed up the pressure with strikes, protests at the homes of government ministers, and widely-publicized “days of disruption” that brought mass civil disobedience to highways, train stations, and even Ben-Gurion Airport. “It was clear that we need to step up a level,” said Nosatzki. The goal, she said, was “to strike fear in the hearts of the politicians and also show the public that this [law’s passage] was a major moment.”

According to Nosatzki, the government was surprised by the protesters’ response to the passage of this bill. “They thought it would be a lot harder for the protest movement to explain why this was bad,” she said. However, the public has correctly understood the removal of the reasonableness standard as only the first in a multi-part package that guts the powers of the Supreme Court to give more power to politicians, with other bills on the table trying to transfer the power of Supreme Court appointments to the hands of politicians, and make it more difficult for the court to exercise its power of judicial review. With this explosive package of legislation, Netanyahu’s strategy has been to proceed gradually so as not to arouse opposition, something commentators often have referred to as the “salami method.” But according to Nosatzki, “the public managed to figure out that this [amendment] is a salami slice” and “that you can’t let any part of this legislative package pass.”

Mickey Gitzin, the director in Israel of the progressive New Israel Fund (disclosure: I work there), told Jewish Currents that the protest movement has resulted in “a very fast, totally unexpected, process of politicization of the least political parts of Israel.” Gitzin says this level of participation is usual for settlers and parts of the left, “but from this dormant center, it was not expected.” Nosatzki said that these protesters have been remarkably consistent in coming out week after week. Omer Dank is one example. A reservist air force navigator who spent 25 years in the army, Dank told Jewish Currents that he has now pledged not to serve and spends much of his time protesting the judicial coup. “I’ll keep protesting to fight for my kids,” he said, adding that the only alternative would be to leave Israel.

Nosatzki said that the removal of the reasonableness standard might even help the protests pick up steam. “The passage of this law in its most extreme, fullest version is basically the Knesset saying, ‘we don’t care about you at all,’” she said. “And that builds power for the protests and delegitimizes the government.”

How do the protests against the judicial reforms connect to broader anti-occupation struggles?

Since the beginning, these protests have included an “anti-occupation bloc”—an amalgam of activists, civil society organizations, and others who argue that there can be no true democracy in Israel while the country’s occupation of millions of people persists. But while the anti-occupation bloc has gotten larger, Vidan said that the protest movement has refused to deal explicitly with the question of occupation, which many see as divisive and distracting. “The people who are out protesting are not leftists,” Vidan told me. “They don’t all understand that the occupation is the motivation and the engine [behind Israel’s current political crisis].” Even once the reasonableness standard was removed and police began responding to protesters with tactics that they have previously reserved, for the most part, for Palestinians—including beating protesters and using skunk water (a vile smelling spray with a lingering smell) and water cannons—Vidan said most people are still not observing that “they’re copying occupation practices on the streets of Tel Aviv. People are completely asleep when it comes to the Palestinians.”

Even in the absence of these connections, Vidan said that as the protests continue, the more mainstream elements are more comfortable with the anti-occupation bloc, even occasionally chanting “Where were you in Huwara?”—a reference to February’s settler pogrom, where the army stood down, enabling horrific violence against Palestinains and their property.

Is Israel headed towards a constitutional crisis?

On Monday, July 31st, the first day of the Knesset recess, the Supreme Court announced that it would, for the first time ever, convene a 15-judge panel—the full roster of justices—to hear eight petitions that civil society organizations and opposition figures had filed against the amendment. Roznai says that the justices are deeply aware of the tenuousness of the situation. “The court understands that we are in a deep process of democratic erosion and that it has to be, in a way, the guardian of democracy,” he said.

Israel’s top court has never declared a Basic Law unconstitutional; if it were to do so, it would be an unprecedented act. But even if the court decides not to strike down the new law directly, it could also punt the law back to the Knesset for further debate—especially since, Roznai said, “the law entered into the sausage factory [of committee meetings and floor debates] and came out exactly the same,” which suggests that there was no substantive input from lawmakers who opposed it. Alternatively, the justices could tell the petitioners that they cannot yet tell what the implications of the law truly are, and decide to keep it in place until a petitioner can show that they were harmed by it, thus leaving open their ability to strike it down at a later date.

However, even if the court were to strike down the law after the September 12th hearing, it is unclear if the government would comply. In a July interview with Wolf Blitzer on CNN, Netanyahu was asked if he would abide by a Supreme Court ruling striking down this law: The prime minister responded saying: “We’ll go into uncharted territory. I really would like to believe that they won’t do that.” Still, Roznai does not believe that Netanyahu’s government will ultimately reject a court decision and trigger a constitutional crisis over the issue. “For [the ruling coalition], it’s a win-win,” said Roznai. “They can say to their base, ‘we did what we promised and this court undermined the political will, and this is precisely why we need the reform.’”

Elisheva Goldberg is the media and policy director for the New Israel Fund and a contributing writer for Jewish Currents. She was an aide to former Israeli Foreign Minister Tzipi Livni and has written for The Daily Beast, The Forward, The New Republic, and The Atlantic.