Mission to Israel Part III: What I Learned About The Israeli Separation of Powers

Ambition does not check ambition. Erudition checks opposition.

[This is the third post in my series on my mission to Israel. You can read Parts I and II.]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don't even pretend I've figured out own own laws. I barely have enough time to read all of the Supreme Court's decision. (I still need to finish Jarkesy, Corner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

With that caveat in mind, I will describe my admittedly crude crash course into the Israeli separation of powers.

Israel has no written Constitution. Yet, it has a robust separation of powers: elite lawyers separate the power from the people. Ambition does not check ambition. Erudition checks opposition.

Let me provide a brief sketch.

Israel has a parliamentary government. A coalition that obtains a majority of the seats in the parliament can select a prime minister. The prime minister, in turn, can appoint various cabinet ministers. (I think technically the cabinet makes the appointment, but that doesn't make a difference for present purposes.) One of those ministers is the Attorney General. The Attorney General serves a fixed, six-year term. The Attorney General is entirely independent--there is no removal power. Indeed, the Attorney General can take positions that are adverse to the prime minister. And those positions are binding on the government. The prime minister has to go to court to reject the Attorney General's argument. And Israel has no standing rules, so the Attorney General, as well as outside groups, can challenge virtually any policy in court. Everything goes to the courts.

Due to the fluctuations in Israeli politics, an Attorney General appointed by a left-wing government can serve during a right-wing government. Can you imagine if Attorney General Holder served under President Trump? AG Sessions under President Biden? And, in candor, even an Attorney General appointed by a conservative government will still be the byproduct of the elite legal education system in Israeli. Conservative lawyers in Israel are a discrete and insular minority.

Here is another example. The Military Advocate General (MAG) is the equivalent of the American Judge Advocate General (JAG). The MAG is appointed by the incumbent government for a fixed term. (The duration, I was told is about five years, but the lawyers seemed a bit unsure.) The MAG is entirely independent. The Prime Minister has no at-will removal power over the chief legal advisor. Moreover, the MAG is completely outside the command structure of the military. As a result, military legal advisors officers are in no way accountable to the generals on the battle field. They answer directly to another independent official who cannot be removed, or even directed by the Prime Minister. If the government wants to take a military action, and the MAG says no,that is basically the final answer. I was told that the Prime Minister could, in theory, appeal a decision of the MAG to (wait for it), the independent Attorney General, and to the independent Supreme Court. My mouth was wide open. Again, the popularly-elected government will always be subordinate to the views of elite lawyers.

I asked a MAG captain if it would at least be theoretically possible for the Prime Minister to remove MAG. He seemed almost insulted that I would even raise this possibility. How dare anyone question his boss's independent legal judgment. He replied that the Prime Minister would have to go through the equivalent of a civil service protection proceeding. I nearly fell out of my chair. I inquired if the MAG tells the Prime Minister no often. He said it doesn't happen, as the MAG can usually negotiate the proper bounds for military action. My intuition is that the risk of hearing no serves as a chilling effect, and certain requests are simply never made. Who designed this system? Remember Israel has no Constitution. So it was developed, ad hoc, by the very lawyers who seek to retain this power.

Then there is the basis of the no answer. I remain confused by the entire nature of the Laws of Armed Conflict, and the nebulous principle of proportionality. I watched video after video of legal officers calling off air strikes because the risk of too many civilian casualties. (The Times reported that Palestinians now simply ignore warnings of where and when strikes will occur.) I inquired how any legal officer can measure the value of a target against the risk of collateral damage. Needless to say, the answer was quite subjective. But at least in Israel, insulated lawyers and not accountable politicians, make these calls. Who would you prefer making these decisions: MAG or MAGA? (Sorry, I forgot to put a trigger warning on this post.)

Another example. After the Second Intifada, Israel built a border wall to protect Israelis from terror attacks. In 2004, the International Court of Justice ruled that the border wall was illegal because international law. (Imagine if the ICJ ordered the United States not to build a wall on the Southern border!) The Israeli Supreme Court, in one of its "innovative" decisions, accepted the general premise of the ICJ's ruling, but found that the facts were slightly different, and ordered Israel to build the wall in a more restrained matter. (I am grossly summarizing a complicated decision.) As it was described to me, this opinion showed the ICJ that "adults" were in charge of Israel's border policy, so it left Israel alone after that. Here, we have a double-layer of insulation: the elite lawyers in the Hague defer to the elite lawyers on the Israel Supreme Court. The poor fools in the government can just follow orders. It is unthinkable to have to govern in this sense.

Moreover, this double-insulation provided a leading argument against the judicial reform last year (which I wrote about here). One of the proposals would have made it easier for the prime minister to appoint his preferred candidate to the Supreme Court. But if the Israeli Supreme Court was less independent, the argument went, it could no longer be trusted to take care that international law is faithfully executed. (Yes, it is the court that has this responsibility, and not the executive.) Therefore, the lawyers in the Hague would take a stronger hand against Israel. Indeed, the pending case on the West Bank territory may reflect this dynamic. Again, a country with no Constitution is constrained in reforming its courts for fear of retribution from some international tribunal in the Netherlands. Does any of this make sense?

Other proposed judicial reforms could have made it harder to prosecute Netanyahu, the incumbent prime minister. If so, under the principle of "complementarity," the International Criminal Court would have even greater power to indict Netanyahu. Israel is damned no matter what it does.

During the session, I joked that Trump v. United States, which gave Trump sweeping immunity, will one day be cited as a justification for war crime charges to be brought against Trump. Jack Smith will be firmly ensconced in the Hague to finish the prosecution he could not finish here. Inspector Javert will always get his man.

One last example. The Netanyahu government adopted a few of the legal reforms. But (shocker) the reforms that were adopted were declared unconstitutional by the Israeli Supreme Court. Yes, in a country with no Constitution, attempts to amend the so-called "basic laws" were deemed unconstitutional. An unconstitutional constitutional amendment in a country with no constitution. I'll let you figure that one out. A rule by elite lawyers indeed.

These are just a smattering of how foreign the separation of powers are in Israel. One of my repeated frustration is that the lawyers who defended this system were the primary beneficiaries of the system. They see no problem with it because they are the ones making the important decisions.

To quote President Biden, I thank the Lord Almighty that our Constitution was drafted by lawyers who understood that powers must be rigidly divided, and not placed in the hands of ruling elites. Men are not angels. We need the separation of powers.

Comments

[SRG2]

Wherein Blackman shows he doesn't understand the difference between an unwritten constitution and no constitution.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Wherein SRG adds nothing to the discussion. Perhaps describing the difference is too difficult.

[SRG2]

Perhaps describing the difference is too difficult

Not really.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Apparently still is.

[SRG2]

I am not minded to post the differences. But I grew up under an unwritten constitution and so don't find the idea challenging. YMMV.

[Matthew Festa]

Josh, I too was surprised to learn at last week's briefing that the MAG is completely separated from the chain of command. In the US Army JAG Corps, there is a "technical" advisory chain up through the higher HQ staff judge advocate, but the Judge Advocates work directly for the operational commanders on their personal staff to achieve that specific unit's mission with proper legal guidance. There are pros and cons to each approach. I tend to favor the US approach, but I've worked with the IDF in the past and they get things done in an outstanding manner.

The other big difference that struck me when talking with Tomer is that the IDF MAGs specialize for their career (e.g., international law), while the U.S. Army wants multifunctional experts with broad experience to advise senior commanders, so the US Army rotates judge advocates through administrative, criminal, fiscal, and international law. Again, pros and cons to each approach, and very interesting how we both generally get to the same place.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This amuses me no end. (IANAL and am easily amused by lawyer shenanigans.)

Remember Israel has no Constitution. So it was developed, ad hoc, by the very lawyers who seek to retain this power.

As compared with the US Constitution, which was developed, and is interpreted, by the "very lawyers who seek to retain this power". Maybe "ad hoc" means something different to lawyers, but this non-lawyer thinks the entire common law system and the legislative system we have piled on top were both developed very much in an ad hoc manner.

[Frank Drackman]

Constitutions are overrated, Chy-Na, Roosha, Ear-Ron, North Korea have them, UK, Canada and Israel don’t

Frank

[Milhouse]

Canada certainly has one.

[Frank Drackman]

Who knew?

[Milhouse]

The Israeli "Attorney General" is NOT a cabinet minister. The use of the English term "Attorney General" is highly misleading, and I do not understand why the Israeli government uses it. The Hebrew title for this position is "Government's Legal Adviser", which to me means the correct English equivalent is Solicitor General.

The selection of this person is even worse than you described it. Since this person is NOT a politician, the government is not free to appoint whomever it likes. The civil service gives the government a short list of three career DOJ civil servants, and it must choose one of them. Needless to say, all three will be firmly within the career DOJ's left-wing ideology.

The plain fact is that Israel is not a democracy. Elections are a sham covering up government by the deep state, i.e. the civil service and the self-appointing judicial establishment. The so-called "Attorney General" is a dictator, assisted by the self-appointing supreme court.

Oh, yes. Judges are appointed not by the elected government but by the judicial appointments committee, on which the government appoints only two out of nine members; the majority of members are either directly appointed by the supreme court or are controlled by it.

[SRG2]

The use of the English term “Attorney General” is highly misleading, and I do not understand why the Israeli government uses it.

Possibly because the term was used during the British Mandate, and as with some other elements from then, still persist.

[zztop8970]

It's a little more complicated than that, because in addition to being the "Government’s Legal Adviser” per their titleand acting as the government;'s representative in legal proceedings, , the Adviser is ALSO the chief prosecutor

[Randal]

I don't even pretend I've figured out own own laws.

Haha oh Josh, your lack of self-awareness never fails to amuse.

[Vryedni]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don’t even pretend I’ve figured out own own laws. I barely have enough time to read all of the Supreme Court’s decision. (I still need to finish Jarkesy, Corner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

You can call me an easy mark, but this kind of humility buys considerable good will from me. I’d cut Josh a lot more slack if he expressed more of it.

[Theendoftheleft]

One comparativist I know speaks ten languages fluently. He's an EU shill, but perhaps he's changed his mind lately.

It also pays to remember that, for quite a few places, constitutional law is a far smaller body of law than those jurisdictions's private or criminal laws.

Practically speaking, though, comparativists (whatever their merits or demerits) tend to focus on particular sub-areas of law, rather than claim mastery of entire systems or areas of law.

[great Unknown]

Perhaps now Professor Blackman can understand the move towards judicial reform – and why the Israeli left is so violently [literally] trying to prevent it.

BTW, I have been following the legal situation in Israel for over forty years, and one of the recurring events is the ratcheting up of judicial powers. One egregious example is former Chief Justice Aharon Barak, who unilaterally converted the Court into a legislative body, free to rule on the basis of “it feels right”.

And believe it or not, at one time, the AG was actually a legal advisor to the Prime Minister, not an antagonist to any right-wing government.

[Theendoftheleft]

Yep. ‘Astounding’ how the Western media made the Israeli Supreme Court out to be the ‘good guys’ in that recent dispute. By any Western European metric, at least until recently, the idea of a court concocting for itself such power would be construed as abuse—to say the least.

Makes sense for the American MSM to do so, however, as they are desperate to preserve all the 14th Amendment nonsense that SCOTUS created in the 1960s-70s. There’s now said to be a ‘crisis’ of the judiciary because the crap the Court made up out of cloth is being overturned. (Was it not a crisis when the crap was laid down?)

The Israeli Court is a wonderful lesson in what not to do, if one cares about the rule of law and a judiciary constrained by it. So, too, was the American Warren Court…

[Terry Anne Lieber (Don't Feed Tony)]

As much as I support Israel (as in Eretz Yisrael), their political system is absolute rubbish. In fact, it is a miracle that Israel managed to survive in that 'hood with such a horribly inadequate system.

Let's summarize it:
1. It's a parliamentary democracy, which is far inferior to the presidential system of the US. Why? Because they don't even have 3 separate powers, only a legislative-executive one (the Right) and a judiciary-establishment one (the Left).
2. Worse yet, the entire country is one district only. Which means that they don't have any direct representatives at all. Which means that voting is largely meaningless, since any party can nominate anyone for the mandates that they've got.
3. Not only that, but the current threshold to the Knesset is 3.25%, which was raised from a ridiculously low 1%, but it's still far too low to the standard 5% of most such systems in the world. This results in finite many parties filling the Knesset, all vying for power well above their weight.
4. And as we all know, this is also a problem. Small parties have far to big of a leverage on the major parties. This is the case now with Netanyahu's government, and this was the case for left-wing gov'ts too.
5. They also have ridiculously lax rules on party formations and MKs. You can vote for a party, that gets into the Knesset. Then someone from that party can simply leave that party but retain his seat. It was also pretty jarring to see Naftali Bennett's 180 degree turn after the election. He promised never to sit with the Left or with Arab anti-Zionist parties. Guess what he did? Exactly that, save for one principled guy who left the party because of that betrayal (naturally, the party ceased to be after that, their voters went on to vote to alternative right-wing parties whom they can trust).
6. Then there's the insidious issue of judicial activism, spearheaded by the Right Honorable Aharon Barak, who decided a couple decades ago that the Israeli Basic Laws are a constitution... whenever he wishes it to be. It's a constitution in superposition: whenever the left-leaning courts want to strike down anything right-wing, they can do it, because "of reasons". No, I'm not joking, they literally call it "a reasonableness clause". As in: anything right-wing is unreasonable, whereas anything left-wing is reasonable. See e.g. Lapid's gas deal with Lebanon i.e. with Hezbollah i.e. with Iran. Did the courts saw any problems with giving up all Israeli claims on lucrative gas fields in exchange for nothing? Nope.
7. Which brings up the issue of Bagatz, their botched version of a SCOTUS. Bagatz had always been controlled by the Left. That's understandable, since the court is entirely self-selecting, so they can perpetuate their partisanship ad infinitum. Can you imagine a SCOTUS with permanent conservative majority? Or a permanent liberal majority for that matter? Which side would tolerate such a blatantly unfair setup?

[Theendoftheleft]

Westminster-style Parliamentarians have good reason to disagree with you. One reason is that a Parliament with a Cabinet is less easily subject to capture by special interests than American legislators.

Secondly, the courts in Westminster-style Parliamentary systems (unlike Israel), at least until recently (when Blighty’s Supreme Court ruined things), were far more stable and less conspicuously political, especially when it came to criminal law and private law matters. They are in far better shape, reputationally, than America’s—and for good reason. Look, for example, how happily and willingly your blue team judges are to make shit up all the time, to play conspicuous legislator, and now to weaponize their offices…

Israel’s real problem is that it’s a PR system, which gives too much power to small groups. The coalition-building creates schizophrenic policies.

[Terry Anne Lieber (Don't Feed Tony)]

1. I still prefer the presidential system for more reasons than one.
2. Westminter-style might be the "less bad" form of parl. demo... but it's still inferior to a decent presidential one.
3. Yes, the US system ain't perfect either. Term limits should have been part of the constitution from the get-go, along with other possible limitations, as well as additional separated power i.e. branches of government (e.g. Auditory Branch, Civil Commission Branch, etc...)
4. Same goes for the judicial branch: we could have fine tuned it better. But that's largely independent from the the type of government/system i.e. whether one state is presidential, semi-presidential or parliamentary.
5. Israel: I listed other egregious problems, but yes, it is one of the main problem, one of the biggest issue. It's a parl. system, unicameral, fixed seats, single district, 3.25% tr. is far too low, vote sharing agreements, little parties with to much power (in essence, they cont. blackmail the majority party in the coalition), no representatives (only party list MKs).
6. But to say something good about Israel: if there's one thing that's working perfectly there, it's the voting. Single day, paper only, in person only, with proper photo identification, only at a registered location, and they count it fast. The biggest proof of its transparency, efficiency and security? No one ever disputes the votes total/mandate allocation results in Israel, despite the fact that the parties/faction are always at each others throats, having no trust in one another. Unfortunately, that says a lot about US (federal) elections...

[great Unknown]

absolutely correct about the voting: absentee ballots only from people assigned to overseas embassies and consulates.

However, what you described is the rule in every civilized country.

[Theendoftheleft]

Yep. The fact that comparative election law approaches aren’t regularly being used to explain to the American people why we, in the rest of the West, would never tolerate what it has done since 2020 is a tragedy.

It should be explained, in detail, to the American masses, why what American blue teamers labelled as ‘democracy protecting’ mechanisms are almost universally considered by social democrats, liberals, and conservatives in the rest of the West to be flagrant violations of the rule of law, of election integrity, and democracy.

It would be easy to SHAME and HUMILIATE your blue teamers, on non-partisan grounds, if you only put forth the effort.

[great Unknown]

not with the vast weight of MSM supporting the side of electoral corruption. note your own observation above as to how the Western media have labelled the corrupt legal system in Israel as the "good guys"

[Krenn]

“proportionality.” is hard to define, and it shouldn’t surprise anyone that different factions, or different nations, tend to define it VERY differently from each other….

But the ‘simplest, fairest’ definition of ‘proportional civilian casualties’ is usually something like “The civilian casualties must actually have some reasonable, logical relation to the legitimate military purpose you are engaged in, and you must have made some sort of de-minimus consideration as to whether or not there was an alternate method of achieving your military purpose which was just as workable, but would have produced far fewer civilian casualties”.

So, if you want to bomb an inhabited apartment building which is also being used as a major rocket manufacturing site, the ‘sane’ version of the ‘proportionality’ checklist goes somethin like this:

1. Is destroying a rocket manufacturing site a reasonable military objective for me to have? (yes)

2. Is there an easier way for me to destroy it than a bomb? (No, infantry can’t really get there quickly or safely.)

3. Is there an easy way for me to protect civilians while still ensuring the rocket site is destroyed? (Yes; the enemy can’t move much of the manufacturing equipment TOO quickly, so I can afford to give ‘mere’ human civilians a LITTLE warning…)

And that gives back the answer: The “proportional” thing to do when the enemy is using civilians as probably unknowing human shields for their rocket manufacturing site is to either ask the civilians to destroy the rocket site themselves, (not a serious option in Gaza,) or else to give them as much time to evacuate as you CAN give them without also allowing the rocket equipment to be evacuated.

The exact NUMBER of civilians in danger…. doesn’t necessarily matter. That was created by enemy actions, not your actions.

But, of course, that is only ONE method of thinking through the legal doctrine of proportionality, and there are LOTS of other methods….. most of which are far less permissive. Which gives you a brief introduction to the fundamental disagreements in defining what is or isn’t a war crime….

[devilsadvocateri]

was looking for a thread on comparative judicial and governmental structure in israel. Surely this is a beginning of such discussion and not an end. I hope Eugene too will chime in. (can’t figure out if you can tag in these comments).

I have to laugh as Biden . . . well his administration . . . push “court reform” because they think “democracy” is threatened by an unaccountable court took the other tack when Netanyahu proposed a metaphorical carbon copy in Israel–with many on the left in and out of Israel suggesting “court reform” was a “threat to democracy” undermining the independence of the judiciary.

Instead what you see are substantive political disagreements being papered over as procedural disputes and people align their view of process with desired substantive outcomes so they foreswear comparative constitutional law and switch sides with impunity. I could credit with consistency those who supported refore in both countries or those who looked with skepticism at both US and Israeli reforms (I said skepticism and not cynicism, serious critique does not foreswear any change but certainly abstracts the matter from its present political contexts).

Of course constitutions, written or otherwise, emerge in their context but they are informed by other such undertakings so i’m not at all as skeptical about comparative approach as Josh. I am surely skeptical that it should have some kind of controlling nature, as if the world were a larger european union or united nations protectorate in which nations must conform to the “best” system as established at Brussels or other international tribunal–which itself would most likely be an anti-democratic institution.

But I find equal mirth lately in some podcast advertistment that sneaks into my spotify feed that proposes to explicate current legal constitutional decisionmaking in the United States because we must preserve democracy to “protect the marginalized”. Democracy is the exact opposite of protecting the marginalized. By definition, it is majoritarian and those on the margin are left out of decisionmaking. When is it that folks will stop attaching their desired outcome to these concepts such that an outcome you favor is democracy and an outcome you don’t is tyranny?

[great Unknown]

a certain wise Latina would beg to differ, re protecting the marginalized.