It has become a tradition; in the mid-80s, the doors of the court opened to Yehuda Ressler’s petition against military exemptions for Haredi yeshiva students: The Supreme Court judges began to send signals to the Defense Minister that his sovereign authority on this matter was ending. The hint was not taken, and so in 1988, the court established that a blanket exemption from conscription must be enacted by direct Knesset legislation.

It has become a tradition; after four years of debates, the Tal law was passed in 2002. After the fact, it became apparent that this was not exactly the resolution that the Supreme Court had been interested in, and it was thus rescinded in 2012. Another committee was formed immediately afterwards, the Plesner commission, and another one, Peri, and another, Shaked. In 2014, more emendations to the law were passed to regulate the exemption from conscription. This arrangement, however, was also not what the Supreme court judges had in mind, and it too was rescinded in 2017. Failing to reach a new arrangement, Israel was sucked into the mire of five election cycles between 2019 and 2022.

It has become a tradition; since then, the Israeli government has half-heartedly sought to extend the intermediary period created by the Supreme Court’s decision, but the last arrangement was also not looked upon favorably, and it was rescinded in a decision made in the middle of 2024. This decision determined that “No decision maker in the executive branch has the authority to order a general avoidance of conscripting all Yeshiva students,” and it was unanimously declared that “the state must act to draft them, in accordance with the directive of the law.”[1]

It has become a tradition; in less than a decade and a half, the Supreme Court has nullified an executive arrangement to regulate the draft exemption of yeshiva students three times, an issue which has been dividing Israeli society for more than five decades.

It has become a tradition; elected officials compromise on a political arrangement, the High Court judges examine it, and if it does not align with their “judicial” world view, they order its annulment, and everything starts from square one.

Conservative philosophy generally appreciates traditions. This being the case, why does it seem that conservative thinkers are opposed to this particular “judicial tradition,” which has become the norm in Israel over the past four decades? To answer this question, we must consider the characteristics of the conservative judge, so that we can better understand how he ought to relate to such petitions, and many others. This is the purpose of the present article.

There are two opposing concepts that typically arise in the stormy debates over the role of the judge: “judicial activism” on the one hand, and “judicial restraint” on the other. The precise definitions of these concepts are murky and themselves the subject of much dispute.[2] It is clear the discussion regarding the proper role of the judge is dependent on a prior discussion of the tension between the judiciary and other branches of government, and the delimitation of the borders between these branches. From this question, we quickly come to another fundamental discussion of the understanding of other foundational concepts of the modern state, such as ‘democracy,’ ‘the rule of law,’ ‘the separation of powers,’ and others. Without complicating things further, the definition of ‘conservatism’ in political philosophy is itself something slippery and hard to pin down. We find ourselves, then, caught in a thicket of concepts whose definitions rely on one another.

In order to sidestep this conceptual challenge, this article will focus on the figure of the ‘conservative judge’ within a democratic state (henceforth: judicial conservatism).[3] This is a figure absent from the vision of judicial education in Israel, as are other principles of judicial conservatism, one who is frequently attacked in Israeli discourse, and one who must cope with many challenges. Absurdly, the attempts at judicial reform in 2023 that were designed to reconfigure the proper balance of powers between the branches actually led to greater strengthening of the position of the Supreme Court: What I call a ‘super-constitutional revolution’ at the beginning of 2024. This failure offers clear testimony to the fact that judicial education and discourse in Israel exist on an extraordinarily narrow spectrum of liberal-activist judicial philosophy (or “judicial progressivism”).[4]

The portrait of the conservative judge will be drawn using two main characteristics: “political humility” and “judicial restraint.” These two characteristics complement one another: the first claims that a judge, like any other person, is not all-knowing, and does not have direct access to objective, absolute knowledge. The complementing principle states that even if a judge feels he has attained proper insight in a particular case, he must remember that he is nevertheless subject to the democratic sovereign, that is, the public. What emerges from this is that the conservative judge is a ‘dialogic judge’: He helps the public to understand the law and apply judgement, but cannot replace the public and therefore, he also cannot enjoy ‘the last word’ regarding issues that are the subject of public debate.[5]

A Portrait of the Conservative Judge

Political Humility: The Judge is not All-Knowing

The first characteristic of the conservative judge is strongly related to the reluctance of conservatives to rely solely on rationality to solve political problems. Michael Oakeshott presented this acute tendency in his article, “Rationalism in Politics,” in which he reviews a common phenomenon in the world of modern politics: The attempt to solve political problems using rationality alone, based on the mistaken assumption that there exists a “perfect” solution to every political problem.[6] Oakeshott locates the source of the problem in the failure to distinguish between “technical knowledge,” which can be formulated and defined clearly and can therefore be taught and learned rationally, and “practical knowledge,” which cannot be formulated in an explicit and clear-cut fashion. Therefore, practical knowledge cannot be learned or taught using scientific tools but, rather, depends on skills acquired through experience and practice, which are then passed on as practical insights from generation to generation.[7] Politics is composed of both of these types of knowledge, meaning the attempt to act solely based on rationality leads to a “politics of the inexperienced.”[8]

It is important to clarify: Oakeshott is not against the use of rationalism in politics, but only against relying on it exclusively while ignoring the significant value embedded in political beliefs, in methods of policy, and in the political organizations that developed over the years.

Just as this is true regarding elected officials, it is also true regarding judges. Neither are blessed with perfect political knowledge simply by virtue of their office. Generally, judicial education gives absolute priority and even exclusivity to technical knowledge as the means to solve political problems, while ignoring other significant aspects that are part of practical knowledge. One who believes that judicial training affords jurists knowledge allowing them to consider and balance the clash of different values in the most correct way will tend to give the decisions of the judges “the last word” over the decisions of the politicians in any political dispute.

A similar distinction, relevant to our discussion, is made by Thomas Sowell in his book, A Conflict of Visions, in which he describes two different outlooks regarding humanity and human society: The “unconstrained vision” sees man as a flexible creature with great potential to advance and to improve himself and others, potential which is usually mostly untapped. The “constrained vision,” on the other hand, sees man as limited in his abilities, and therefore as an entity that can be improved only, if it all, over the course of generations. Man is a creature whose attempts to improve society, more often than not, miss their mark, and whose actual accomplishments are in question. [9]

This dispute has ramifications for, among other things, questions regarding public policy and the responsibility of those leading governmental bodies to bring about broad changes. One who believes that man has great capacities to change, both morally and intellectually, will seek to harness research, state powers, and public interest to redesigning society and to solving its problems. On the other hand, one who sees man’s ability to change as limited will seek to buttress existing strengths in society and to reduce its shortcomings using incentives but will distance themselves from revolutionary solutions, out of a fear that these may bring about new problems which cannot be foreseen.

For our purposes, an interesting feature of the “unconstrained vision,” is that it holds there is no need for every person to reach the peak level of intellectual and moral development on an individual level. It holds just the opposite: social advance is achieved by the trailblazers in the field, who will significantly precede their generation, and advance them to higher levels of understanding and action. Therefore, Sowell writes, they become the “substitute decision makers, until the final advance of humanity to the point at which everyone will be capable of making social decision.”[10]

Thus, the “unconstrained vision,” which forms the basis of political progressivism, applauds the assumption of “social responsibility” to move society, as a whole, closer to ideals of justice, welfare, equality, and the like. This is even more the case for those who serve in government positions, and in whose hands are the keys to forming public policy.[11] According to this approach, constitutional checks and balances, developed in a process that spanned generations, based on compromises between different parts of civil society, can sometimes be an obstacle on the way to reaching the best solution. This vision encourages the very best to be active in advancing the public good and encourages granting powers to those who are blessed with wisdom and with the character needed to advance society.[12]

The “constrained vision,” on the other hand, which forms the basis of political conservatism, maintains skepticism regarding the pretensions of such a “substitute” to special insight, and doubts the effectiveness of programs that aim to solve the root problems of society and the state by rational means alone. Instead, political conservatism encourages those involved in public policy to tread carefully, step by step, to rely on the collective intelligence of their citizens, and to appreciate the political fruits of social processes that developed over the course of many years. Although there is no guarantee that all these will succeed in finding a “better” solution to a particular political challenge, the alternative, political decision-making done by a small group of individuals, is far worse.

The fundamental question at the core of the dispute between these two visions, then, is whether those serving in government bodies, including judges, can make social or political decisions based on rational means alone. The “constricted vision” leaves such difficult decisions to multigenerational, collective dynamics which are translated into political bodies and mechanisms like a constitution and laws, which reflect compromises and consensus rather than comprehensive solutions. If so, the dispute is not regarding the definition of “the good,” which depends on one’s ethical assumptions, but regarding the question of what can be accomplished within the given reality. Conservative thought prefers relying on social and political systems that have proven themselves over the course of many years over the pretentious attempt to accomplish high moral goals within a complex reality. Therefore, it rejects a discourse of higher principles or dogmatic doctrines in whose name some will try to override the existing political order.

Sowell summarizes this issue in a discussion regarding “the place for exercising discretion” by a public servant:

“According to the “unconstricted vision,” in which the decisive factors in advancing the public good are sincerity, on the one hand, and detailed knowledge and insight on the other, the decisive influence on society should be in the hands of those who are the very best as far these parameters […] [Adherents of the “unconstricted vision” sought to] concentrate the decision making authority in organizations that are under the direct control or influence of those blessed with wisdom and the necessary good traits […] the “constricted vision” does not see man as having this capacity, neither among the elites nor among the general public, and therefore, its proponents’ approach to this issue is completely different. It is not sincerity, knowledge or insight that is decisive, but incentives that are given by systemic processes that force careful exchanges of compromises, and take advantage of the experience of the many rather than the detailed formulations of the few.”[13]

When we seek to apply these insights to the judiciary realm and our portrait of a judge, the “conservative judge” will be measured by the way in which he sees his task: he recognizes  that in questions of values which do not have a clear legal answer, his own subjective opinion is not necessarily the most correct one, and certainly not the one that is mean to have the last word in the public discourse. This is the “political humility” which expresses a submission to social consensus or to the results of political processes, and which is opposed to a judge seeking to further a particular worldview that is not firmly grounded in the elected bodies.

In this context, it is important to note a distinction that many miss, which addresses the difference between a conservative worldview and between a judge with a conservative judicial mindset. There can be conservative positions on a range of social issues on the public agenda but the judge with a conservative judicial mindset will adhere to the decisions of elected bodies even if these do not match his personal worldview. This is the reason that a conservative judge will refrain from using meta-principles which are not the product of a deliberative social process, but the result only of rational abstractions. In other words, we must distinguish between the individual worldview to which the judge personally adheres (be this conservative or not), and their self-definition as a “conservative judge.” [14]

A judge with a conservative judicial mindset will categorically reject making a decision regarding any difficult topic that has not been clearly decided upon by the legislature, leaving it for the public to decide. It is important to remember that refraining from making a decision is itself a kind of decision. In contrast, a judge with a progressive mindset, who does not pride himself on “political humility,” will tend to engage in a difficult topic and come to a decision based on the best of his rational capacities, which he believes ought to have the “last word” in public debates.[15]

Judicial Restraint: A Judge and not a Sovereign

Now we come to the complementary characteristic. Consider: what if there are “unconstrained” judges with a refined moral sense, that really are all-knowing? Why not give them the authority to apply their higher morality and political wisdom to judicial decisions and to save us from our own wickedness and ignorance?

The answer to this question lies in a consideration of the role of the judge in a democratic state. The principle of the separation of powers, a foundational principle of the modern state, is based on a delicate relationship between the powers. Accordingly, each power is meant to serve as a check and a balance for the other powers, to prevent the concentration of power in the hands of one of the branches of government in such a way that can lead to the violation of citizens’ rights. From the perspective of democratic theory, a branch serves as a check and balance on the others not because it is considered to be a superior “gatekeeper,” but because of the dynamic of political ambition and the will to power.[16]  However, there are some who believe that the judicial branch is different from the others and has a unique role of maintaining the basic values of the democratic state because judges are not reliant on public whims or temporary trends. To respond to this claim, we need to return to fundamental understandings of the term “democracy.”

Democracy is “an unclear concept that inspires admiration,”[17] and many who use it imbue it with their own personal values, brandishing it to justify their own outlook.[18] The conceptual murkiness in our time of the term “democracy” is a result of Western man’s need for a moral anchor in the face of the horrors of two world wars and totalitarian governments that destroyed Europe in the 20^th century, both in body and spirit. In this process, the original concept of democracy was merged with modern liberalism, to the point that democracy became identified with “liberal democracy,” which today we witness transforming into “fundamentalist liberalism.”[19] This process did not skip over Israel, in which liberal democracy has become “essential democracy,” referring to a very specific set of values.[20]

A preferable definition of modern democracy, in my opinion, is: a system of governance that guarantees a set of political rights that allow the citizen to participate in the political field in a fair and equal way in order to be a part of shaping the political framework in which he lives.[21] The main political rights in a democracy are political equality and freedom of speech.[22] There are other freedoms that are defined as “natural rights,”[23] and the extent of their application within a particular political framework is the subject of an ongoing debate around a number of issues and questions: libertarians seek to add property rights, like the right to acquisition and freedom of contract, to the list of protected rights; social-democrats wish to add economic rights (which are referred to, in a rhetorical manipulation, as ‘social’ rights), like the right to housing, to appropriate medical care, to basic education, and more. [24] This dispute does not fundamentally relate to the definition of democracy. In Israel, however, the concept of human dignity was inserted into the concept of democracy to create a misleading concept called “essential democracy.” In our context, the important point to emphasize is: In a democratic regime, decisions between different versions of liberalism are meant to be given to the people, and a process of majority rule is the proper method to do this.[25]

In certain countries, including Israel, the range of views is even more broad, including many groups that maintain traditional and conservative values regarding religion, family, and community.[26] Even in these countries, freedom occupies a central place, but there is a debate about the way to apply it and how to negotiate the tension between it and other values. After all, even reasonable people who are committed to shared basic moral assumptions can have disputes regarding the right decisions in particular concrete situations. Sometimes, the dispute stems from different understandings of reality, and sometimes from disagreement regarding the proper way to balance conflicting values. As mentioned, in a democratic society, it is proper that such disputes be decided by the public via a process of majority rule. There are, of course, those who oppose deciding in this way, perhaps even from a sincere concern for liberal values, but their position does not enjoy a priori preference over other positions in a democratic country, and, therefore, they must act to convince the general public without coercing them.

This type of discussion cannot help but come to the question of the tyranny of the majority: Who can prevent the majority from becoming tyrannical? Who can prevent the public from losing its reasonableness in governance? Who can restrain the public from hurting itself?

The answer is both simple and difficult: No one other than the public itself.[27] Not every civilization is fit to be governed by democracy. The proof is that close to half of the countries in the world are not democratic and are governed by an authoritarian regime, or something close to it. In parallel, even a people that is well suited to a democratic regime at times needs help, encouragement, and guidance in its political path. This is the task of the bodies of government, and this is the essence of one of the central functions of the judiciary. Nonetheless, this function does not grant legitimacy to any governing power in a democratic state to replace the sovereign power.

“Democracy” is not “liberalism,” but a majoritarian regime based on basic freedoms of political participation. Any attempt to define “democracy” a priori as a concept that includes other values, other than those required in order to maintain fair and equal participation in the political process, should be marked as “suspect of tyranny,” that is, an attempt to rob the public of the ability to influence its fate and to rule itself in the name of “higher values” that are forced upon it. If there are those serving in the judiciary that do not see “political humility” as their professional compass, and seek to advance particular values and to educate the citizens according to their worldview, in a democratic state, they are nevertheless required to exercise “judicial restraint.”[28]  Although an independent judiciary is important for a state that desires to be democratic, for “regarding judgment, there is no mastery over he who has judicial authority,” ultimately, this body, just like the other elected bodies of government, is independent “except from the sovereignty of the law.” [29]

Neither Political Humility nor Judicial Restraint

Much has been written about the role of the judge in Israel. The most prolific author in this field, who shaped the accepted judicial education in Israel today, is the former chief justice Aharon Barak.[30] One who examines his writings will discover a position that is quite the opposite of what we have presented regarding the two characteristics mentioned, political humility and judicial restraint.

First, accepted judicial education in Israel maintains that the judge is objective, nearly all-knowing. Second, Israel’s legal literature, and in its wake, its judicial decisions, gave the Supreme Court judge broad authority over the other governing bodies of the state. This authority was justified with explanations about the “fundamental principles of the method” or “the principles of the Declaration of Independence” and the like, according to which the court has the “last word” on constitutional and moral questions of the first order. Is this the proper judicial approach for Israeli judges?

The lack of political humility of the judicial approach in Israel is evident in the method of interpretation most common there. One of a judge’s main tools is interpretation of laws and of constitution, and, as is well known, there are a variety of approaches and understandings regarding the proper judicial hermeneutic.[31] The major difference between these approaches is the measure of objectivity that they assign to the judge. The greater faith there is in the intellectual and moral capacities of the judge: The more “objective” the judge is seen to be, the more room he will be given to exercise discretion in his interpretation of the law.

Israeli judicial education asserts the trait of objectivity as the most central of a judge’s characteristics. According to this position, a judge does not advance his own subjective worldview but is a kind of all-knowing arbiter who applies the law and actualizes justice. As a result, the term “political” became a pejorative in the Israeli judicial system, which acts zealously to prevent political leanings from being assigned to it. “There is no greater danger than the politicization of the judicial system,” the skippers of the judicial ship warn us, fearing that without political objectivity, the ship will be capsized by the stormy waves of judicial cases.[32] Nevertheless, the attempt to cultivate the judicial system as an apolitical body out of the fear of judicial politicization failed completely, whether because political realism became a common assumption or because the court, consciously or unconsciously, abandoned its pretense of objectivity.[33]

Despite this grim picture, the common judicial hermeneutic in Israel grants the judge almost unlimited discretion in interpretation in the name of the objective he sees as worthy of pursuing, “even if it is opposed to the simple meaning, the intention of the legislature, or the goal the legislator sought to advance.”[34]

We ought to be precise: Careful study of the writings of Barak reveals that he admits the personal opinion of the judge should be expressed in his decisions. For example, in The Judge in a Democratic Society, Barak admits that even if the foundation of judicial discretion is objective, there are rare circumstances when dealing with “difficult cases,” in which at least two opposing answers exist, both of which are appropriate to the law. “At the end of the process a decision is needed which is personal, and which reflects the subjective world of the judge.”[35] There is essentially no escape from a value-based judgement in important cases that influence the life of society, both in cases regarding the collective and regarding the individual, and, according to Barak, the judge has the intellectual and moral capacities to make this value judgement.

This position, which has become a part of Israel’s judicial education, stands in opposition to the conservative principle presented above, which is based on skepticism regarding every man’s wisdom and morality, including judges. The judge is not objective or all-knowing. Therefore, he must recognize the limits of his assigned task. When a judge is asked to decide regarding a political issue, or, as Barak refers to it, a “hard case,” he cannot claim that his judicial opinion is objective, nor that his objective position is not susceptible to errors and fallacies. On the contrary, even if the judge has fine legal “technical knowledge,” he still needs to draw on political “practical knowledge,” which cannot be acquired through instruction or research in faculties of law, or from the heights of the seats of judgement in Giv’at Ram.

Not only is “political humility” lacking in Israeli judicial education, “Judicial restraint” is as well. This can be demonstrated by two opposing views of two seasoned jurists, both recipients of the Israel prize, both roughly the same age. On the one hand, there is Professor Aharon Barak, the former chief justice, who writes:

“The position that maintains that a judge only declares what the approach of the law is and does not create it is not acceptable, as this is a fictitious and childish approach. The approach of Montesquieu, according to which the judge is no more than the “mouthpiece of the legislature” is not acceptable at all. The large majority of judges, lawyers and legal experts know, whether from experience or from study, that along with the declaration of the law by judges exists the creation of law as well.”[36]

Against this position, Professor Daniel Friedman, the former Justice Minister, writes in his book, The End of Innocence:

“In a democratic state, the work of legislation is placed upon elected officials, while the task of the judge is to apply the law to the case before him. If there is unclarity in the law, the judge must explain it. When the law is open to multiple possible interpretations, so that the choice of interpretation is made by the judge, this has an element of legislation, certainly if this interpretation is one that will obligate future courts or on which they will act […] The proper characteristic of a judge is that he applies the law and does not create it himself.”[37]

Both sides of this dispute are legitimate positions regarding the definition of a judge in a democratic state. It is possible to hold either opinion; the approach of the “creative judge,” like the approach of the “declarative judge,” is legitimate. One who maintains this approach must ensure that there is established “judicial restraint” of constitutional mechanisms or majoritarian arrangements that balance the judiciary and prevent it from taking governance away from the public.

This is not the situation in Israel. As a result of the constitutional revolution during the nineties and the completion of the “above-constitutional revolution” at the beginning of 2024, there are no effective constitutional or majoritarian arrangements that can override “judicial ambitions.”[38] The more the judiciary acquires governing authorities for itself without any checks or balances or mechanisms of responsibility and gives maximum flexibility to its judges in relation to the law as if they were some kind of ultra-sovereign which does not answer to the law, the less Israel is a democracy.[39]

Even a judge who does not believe in the value of “political humility” is required to demonstrate “judicial restraint” in the form of transparency to the public regarding the personal political values that form the basis of his judicial decisions. There is no demand that a judge should change the personality, or the lifestyle, that rejects “political humility,” but to fulfill his judicial role in the context of a democracy, he is required to minimize ambiguous legal rhetoric and to clearly express his political opinion in the context of his decision as someone with an independent political identity. In this way, the public would be able to react to decisions of the court in a relevant way and to take a central role in the political dialogue until a values-based decision is made according to the democratic principle.[40] A judge with a conservative approach does not need to do this since he would a priori reject judging a “difficult case,” while the easy and medium cases he will interpret using a hermeneutic that respects the plain meaning of the political text, such that his personal political opinion is not relevant to his judicial task.

To summarize this section, we will quote a speech delivered by the American judge Amy Coney Barrett after being sworn in as a federal Supreme Court judge in the United States in 2020, in which she emphasizes the judicial restraint expected of the judge:

“One of the fundamental differences between the federal judiciary and the United States Senate, and perhaps the most acute, is the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her. The Judicial Oath captures the essence of the judicial duty the rule of law must always control.”[41]

In Lieu of a Last Word- Dialogue

The judicial conservatism in this article is based on a political rationale which seeks to create dialogue between the governing powers of the state.[42] According to the “dialogic rationale,” the main purpose of judicial review is to ensure that fundamental matters receive the proper attention, and that they be decided by the political branch only after deep consideration. This rationale suggests the adoption of a model in which the Supreme Court and the parliament are engaged in dialogue on fundamental issues, wherein the Supreme Court acts as the catalyzer for the discussion, but the parliament, or the public, maintains the right to have the last word.[43]

The American scholar Barry Friedman describes a similar kind of dialogue that has been taking place for several decades in the United States: The Supreme Court hears political cases and sometimes citizens or their representatives react and express their own opinion on the matter. If there is little or no public opposition, the Supreme Court continues to maintain its position; but if the reactions are severe, the Supreme Court will soften its stance. At times, the court measures its steps before coming to a decision, and when it considers that the public will not be pleased, it refrains from diverging significantly from popular opinion. Friedman encourages this approach and sees it as the proper way to maintain the necessary legitimacy for the court to make decisions regarding political issues, to safeguard its independence, and to embed its political approach fairly within the public.[44] All this relates to judges with a progressive outlook. Conservatives leave fundamental questions for the public to decide.[45]

If we would apply this approach in the Israeli context, every judge would be asked to enhance his political dialogue with the understanding that he is not objective or, at least, the understanding that he cannot replace the sovereign power of the state. Therefore, it is proper that his decision be only an interim stage in the democratic process, and not the final product in the formation of his political opinion. The judiciary is an integral part of the political system; but it is not the only part, nor is it meant to have the privilege of the last word in the political process, even if its influence on the final product of the law can be decisive. This approach even finds support in the words of Justice Barak, at a swearing-in ceremony for judges at the President’s residence in 2004. These words unfortunately did not find their way into the canon of judicial education in Israel:

“The decision of the court is part of a dialogue. This begins with the act of legislation and continues with the act of interpretation […] and the dialogue does not end there. The decision of the court is not the final word. The authority to legislate is also the authority to change legislation that has been interpreted by the court, and which brings about results which are undesirable in the eyes of the legislator. The legislator is permitted to examine the judgment and its results, and to come to the conclusion that, despite displeasure with the judicial interpretation, there is no room to change the legislation in order to achieve a result that is desirable in his eyes. But the legislator is also permitted to come to a different conclusion. Balancing between the different factors, he may conclude that an emendation of the law is in order, which will bring about the desired result in the legislator’s eyes, the result that was prevented as a result of judicial interpretation. If he comes to this conclusion, the legislator will then pass a new law.”[46]

These words should be inscribed on the heart of every judge in Israel or, at minimum, the conservatives among them. In fact, judges with a conservative orientation should support legislature repassing the laws rescinded by judges with a progressive orientation, and not only those that were interpreted differently than their original intention.

It is important to emphasize that the success of the political dialogue in a democracy depends on the agreement of all sides to engage in a fair way, so that the ultimate decision will be one which reflects the “values of society” empirically, rather than a vague expression of the judge’s personal opinion, worthy as it may be.[47] Since the mechanism of choosing judges in Israel does not have an electoral basis, there are no effective obstacles that prevent political issues being discussed by the judiciary, the last word is given the Supreme Court on every fundamental question of values, and there are no effective powers that can require the judiciary to respect the desire of the majority or of its representatives, the “conservative judge” has no choice but to adopt “political humility” and “judicial restraint” for himself.

The “conservative judge” in Israel is one who recognizes the uniqueness of his judicial work but does not usurp the work of any other branch of government. He recognizes his privileges but is even more aware of his limitations. He assumes responsibility but not where he lacks the authority to do so. He takes part in the political process in which his word has weight but is never the last. In essence, the “conservative judge” is a dialogic judge.

From Thought to Action

To this point, we have presented the main characteristics of conservative jurisprudence and have sketched the outline of the portrait of the conservative judge as one who rejects “hard cases” and refrains from forcing his personal opinion through his legal decision. It is now time to take this theoretical discussion and apply it to the judicial reality in Israel, through one of the most outstanding examples of political tension in Israel: the issue of the conscription of Haredi yeshiva students.

The Difference Between a Conservative Judge and a Sovereign Judge

No one disagrees that the question of the exemption of Haredi yeshiva students from conscription is a “difficult and important issue,” and is even “among the most difficult issues in Israeli society.” It is also clear, at least among the activist majority of Supreme Court judges, that the court is “one of the most important social factors in advancing processes of change.”[48] Indeed, the majority opinion, formulated by former chief justice Dorit Beinish in HJC Ressler in 2012, annulled the Tal Law because it “did not meet the condition of proportionality contained in the limitation clause (of the Basic Law: Human Dignity), and is therefore unconstitutional.”[49] Most of the opinions in the decision focused on the violation of the principle of equality, and on the constitutional doctrine of annulling laws. This would seem to be an exceedingly difficult legal case.

Since dissenting from the majority opinion in the Ressler decision, Justice Grunis maintained that “there is no justification for the involvement of The Supreme Court in this case. In the present case, we are dealing with a decision of the majority of the state (based on its representation in the Knesset) to accept a law that gives extra privileges – not to be drafted – to a minority.” Grunis went so far as to conclude, “the contribution of the court to a change in the behavior of an entire subgroup in Israeli society is exceedingly limited and does not justify the involvement of the court in the issue.”[50] Here, we have an example of a judge with a conservative judicial outlook. Without knowing his own personal positions, one can assume that Justice Grunis is not pleased with the draft exemption of an entire population in the name of “torato umanuto.” Nonetheless, he does not see it as his role as a judge in the Supreme Court to intervene in the schism in Israeli society that exists around the question of conscription.

The decision regarding the Tal Law allows us to discern a third type of judge, one who can be found in the space between the two types that we have described thus far. This is the judge who advances his own worldview but does so explicitly, above ground, and without trying to present his decision as an objective “judicial truth.” In our case, Justice Hendel is an example of this. While he begins and concludes his opinion on the Ressler case speaking about the importance of the principle of equality and concludes that the Tal Law is null and void because of its violation of this principle, the body of his opinion reveals his own fundamental approach to the issue. He asserts that “learning Torah is the crown of the commandments,” and goes on to cite various sources from the Torah: The Mishna, Talmud, and early and later authorities. He comes to the conclusion that, according to the Torah, everyone, including yeshiva students, “is obligated to come to the aid of their brothers.” In his opinion, conscription to the IDF is not only an obligation, it is also a privilege and a mitzva. Hendel does not avoid presenting his own opinion on this issue at length, in detail, and explicitly; it is this opinion that determines his decision.

Justice Hendel consistently acts in this manner. For example, in a case regarding the status of Shabbat in the public sphere in Israel, specifically whether supermarkets could remain open on Shabbat, he did not hide the religious background that was at the foundation of his reasoning (in a minority opinion, it should be noted). Before presenting his “judicial” opinion, Hendel elaborated on his worldview regarding the place of Shabbat in the Jewish world, beginning his decision with the following words:

“Before entering the thick of things, I will preface by sketching in general lines an image of Shabbat about which the Babylonian Talmud says that the Holy One, blessed be He, said to Moses, father of the prophets, “I have a good gift in my treasure house, and its name is Shabbat, and I wish to give it to Israel. Go and tell them” (Babylonian Talmud, Shabbat 10b). This “gift” occupies a central place in the Jewish world, with a place of honor in the Ten Commandments, directly at the seam between the basic laws between man and God, and the laws between man and his fellow.”[51]

In a similar manner, in the case regarding bringing leavened bread into hospitals on Passover, Justice Hendel emphasized the stature of Passover in Jewish communities, again revealing the way his worldview serves as a foundation for his decisions.[52] Hendel is not the only one who engages in political dialogue as a gesture to the public, and reveals his own personal position in “difficult cases” in an attempt to advance particular values.

Another famous example of this is Justice Edmond Levy’s opinion in the Supreme Court decision on the disengagement from Gaza.[53] The majority opinion of the court regarding the petition to overturn the law involving removing the settlers from Gaza rejected most of the petition, based on “objective” judicial doctrines. This opinion was formulated in the name of ten judges together, as one unit, an unprecedented occurrence in Israeli jurisprudence. Though this was meant to afford the decision an apolitical, consensual stature, it exposed the limitations of the rhetoric of objectivity. Those who formulated the majority opinion seemed to feel that 480 paragraphs was insufficient to maintain the image of objectivity in this difficult case and so they dedicated the last paragraph of the decision to emphasize, “our considerations were not political […] we are aware that many of the public are unable to distinguish between judicial review and political review.”[54] This insertion was also made necessary by Justice Levy’s minority opinion, removing the gloves of objectivity and clearly exposing his political opinion on the issue by presenting his worldview extensively and by supporting in detail the justifications of his claim that “permanent settlement in all parts of the lands of Israel is the right of the Jewish nation.”[55] This was not the only time that Levy tried to advance particular subjective positions,[56] but in this case, he also helped to expose the opposite political position of his colleagues.[57]

Let us return to the issue of the exemption of Haredi yeshiva students from conscription. The first to stand up against the progressive judicial thinking on this issue was Justice Grunis.[58] The second was Noam Solberg in another decision that also dealt with the question of yeshiva students’ exemption. After the Tal law was annulled, an amendment to the law of military service was passed which altered details of the arrangement which exempted yeshiva students. In 2017, the Supreme Court struck down these amendments by a majority of 8 out of 9 justices, against the minority opinion of Justice Solberg. In his decision, Justice Solberg wrote the following, which again demonstrates a conservative judicial outlook:

“The piercing dispute in Israeli society concerning conscription of yeshiva students is not, chiefly, a legal one. It reflects a conflict of narratives, which understand the meaning of the collective project taking place in our small country in fundamentally different ways. The very same action is seen by some as the highest moral obligation, and by others as a ‘destructive decree.’

[…] The beginning of the issue that was placed before us is not in the world of jurisprudence, nor is its end. The law is a player, one of many, but its power has limited significance. Recognizing this is the starting point, and in our case, it is also the end point, for now. Were my opinion heard, we would decide to reject the petitions.”[59]

Justice Solberg, like Justice Grunis before him, admits that this issue should be discussed in the public sphere and not in the court. Unfortunately these are minority opinions standing against a majority that has a progressive judicial orientation. Note: like Justice Grunis, it is reasonable to assume that Justice Solberg is also not happy about a blanket exemption in the name of Torah learning, but when it comes to “hard cases,” political humility and judicial restraint are the duty of judges that properly fulfill their role in a democracy: To be judges, not sovereigns.

Justice Solberg’s position is also expressed on the issue of judicial review of basic laws. On the Supreme Court case regarding the constitutionality of “Basic Law: Israel as the Nation-State of the Jewish People,” he claimed that “we do not have the authority to exercise judicial review on basic laws, because there is nothing that stands above this in our legal system. For this reason, these petitions should be rejected.”[60] Similarly, in the Shafir case, which also dealt with judicial review to amendments to the “Basic Law: The Knesset,” Solberg rejected the petition outright, not sparing his rod in harsh words criticizing judicial review that does not have a legal basis:

“If we will violate the boundary of the constituent power, and engage, without clearly being given the authority to do so, in judicial review of its decisions, this could be interpreted as a misuse of the authority of judicial review, whose existence comes from the implied authority that the constituent/legislative power granted within the basic laws (see the decision of retired President Meir Shamgar regarding Bank Mizrahi). We must maintain the division of powers, and prevent the mixing up of jurisdictions. Each branch has the definitions of its purpose, and every official has the authorities granted to him, “each to his work and his task” (Numbers 4:19). Were it not for the division of powers, each one would swallow up the authority of his fellow.”[61]

One of the most conservative positions of Justice Solberg was displayed at the beginning of 2024, in the Supreme Court case regarding the overturning of the reasonableness clause, where the court completed its “super-constitutional revolution.” In his decision, Justice Solberg admitted that the significance of the majority position in this decision is the establishment of the absolute supremacy of the judge in the Israeli legal system:

“[…] The more basic question, over which we are lightly skipping, is: Who has the authority to declare what is considered a basic norm in the state of Israel? As I will explain, an answer to this question is not to be found in the field of law.

[…] According to my colleagues, the most basic norm, from which all other norms stem, is the norm establishing that the body that makes decisions regarding the existence of ‘basic norms,’ and that decides on their limits, consists of Supreme Court judges. If this is true, then the true basic norm of Israeli jurisprudence is not the Scroll of Independence, not ‘the fundamental values of the method,’ nor even ‘a Jewish and democratic state.’ The first and most basic norm, according to this approach, relies and waits for the words of the justices of the Supreme Court in every generation. If they will decide, as judges of earlier generations decided, that the authority of the legislative authority, at least when it functions as the constituent authority, is unlimited, and that this is the basic norm, so it will be. But if there comes a day when the judges will change their opinion and decide by a majority that it is the Scroll of Independence, or the UN’s partition plan, or some other documents which form the fundamental norm of the state of Israel, then the basic norm will change, based on the decision of the Supreme Court justices. This is akin to that which is written: “And you shall do according to the thing they tell you from that place [….] and you shall guard to do everything they have instructed you. According to the teaching that they instruct you, and the law that they tell you shall you do, do not stray from the thing they tell you right or left […]”[62]

His words speak for themselves. Justice Solberg’s words hint to the similarity between the behavior of the Supreme Court justices and that of the Torah giants of the Haredi world. As Professor Arye Edrei described it, “We can describe part of the public conflict in Israeli today as a conflict between two ‘De’ot Torah,’ between two conflicting bodies that work based on very similar doctrines. On the one side, the Daat Torah of the Council of Torah Sages, and on the other hand the Supreme Court and the approach that ‘everything is justiciable.’”[63] It is a conflict regarding the nature of a “State of Halacha”: Will it be Haredi law, or laws determined by Supreme Court judges?

The Voice is the Voice of Conservatism, But the Hands are the Hands of Activism

Multiple times in the course of this paper, we have demonstrated the difference between a judge with an orientation of judicial conservatism, who cleaves to political outcomes with political humility and judicial restraint even if he doesn’t agree with them, and a judge who seeks to maintain conservative values that he believes in, but who does so by undermining given political outcomes. This distinction comes up in an interesting way in Justice Canfy-Steinitz’s comments regarding the Supreme Court’s decision on the reasonableness clause:

“And a final word on conservatism and judicial activism. My colleague, Justice Solberg, believes that this court does not have the authority to engage in judicial review of an amendment to a Basic Law, even if it damages the essence of Israel as a democratic state. His outlook is based on a ‘conservative’ perspective of judicial restraint, the maintenance of the separation of powers, and non-intervention in the legislator’s decisions (Paragraphs 57, 136, and 182 in his opinion). In general, I agree with these principles. But in those extreme and rare –  we would hope only theoretical – cases, in which legislation negates the nature of the state as Jewish and democratic, his view defends an outcome which is not conservative in the extreme.”[64]

Canfy-Steinitz here indicates that her values are conservative (in the Israeli context), but that her judicial decision opposes conservative judicial thought. For this reason, she disagrees with Solberg’s opinion and makes the claim that permitting a legislative act that negates the state’s essence as Jewish and democratic is, “an outcome which is not conservative in the extreme.”

What Justice Canfy-Steinitz ignores is the tremendous dispute regarding the definition of the term “Jewish state.” I would argue that there are as many different positions in this dispute as there are Jews in the world (and after all- who is a Jew?). What, then, is the foundation of values a judge can rely on to defend the values of the Jewish state from damaging legislation? The same is true regarding the term “democratic state,” whose ambiguity we discussed earlier. Therefore, there is no choice but for Supreme Court justices to direct their concern for Israel as “Jewish and democratic” through the prism of what is said in the Basic Laws that enshrine these values (the “Basic Law: Israel as the Nation-State of the Jewish people,” the “Basic Law: Knesset,” and others), and to apply them with interpretation that respects the meaning of the words or the intentions of those who drafted them, and not to invent ex nihilo.[65]

Put simply, the basic error made in the presentation of conservative thought is that, in its name, certain values can be presented as absolute, eternal, and universal truths, and then used to freeze the political order.[66] This is not conservatism, but orthodoxy (meaning “right opinion” in Greek). Justice Canfy-Steinitz bases her opinion on Professor Yaniv Roznai, according to which:

“One who maintains that a basic law can negate the values of Israel as a Jewish state is not a conservative. One who thinks that a basic law can negate the value of Israel as democratic is not a conservative. He is a radical who seeks to change the constitutional order from its foundation. He seeks to oppose the foundations on which the country was founded, to oppose judicial decisions made from the 60s of the previous century regarding the basic principles of our approach, and to oppose the basic values that Knesset members themselves established by law to be basic values.”[67]

Through this support, seemingly unknowingly, Canfy-Steinitz reflects the position of the rationalist who has “technical knowledge,” against which stands the position of conservative thought, which is more epistemologically skeptical.[68] This is precisely the point that Justice Solberg raised in his opinion on the decision on the reasonableness clause: “Who has the authority to declare what is considered a basic norm in the state of Israel?” We, too, must ask: Who determines the values of the state of Israel? Who determines the meaning of the phrase, “A Jewish and democratic state?” What are the limits of judicial interpretation regarding the words of a law, or of a Basic Law? What is the way to determine what is right and proper? Roznai is correct to say that establishing new Basic Laws can create tension with the basic values of the state of Israel, but there is a question that escapes him, and that escapes the majority of the Supreme Court in their ruling on the reasonableness clause: Is it the job of the judges to protect those values?

Based on Roznai’s formulations, one would answer: one who believes that a Basic Law can be interpreted in a way that empties its words of all meaning is not a conservative; one who believes that a judge can erase the role of the legislator and constitutor with a single legal decision is not a conservative; one who relies on “the fundamental principles of the method” or on “foundational values” in order to advance “the right truths” is a radical who seeks to change the political order from its foundation, and to oppose the foundations upon which stand the democratic regime and Western law. It is, of course, the right of any publicist, academic, thinker, or regular citizen to voice their opinion about what constitute the right values, but it is not proper that the judge should have the right of the last word. Nor is it proper that the political and value-based framework of the state should be formed in accordance with his opinion, even if he is sure that by doing so, he is protecting the values of the Jewish and democratic state.

In Lieu of a Summary: Rules of Thumb for the Conservative Judge

Conservative jurisprudence can become a reality in Israel; but how?

Many of those who adopt the dialogic approach seek to make systemic changes through legislation. They hope that, this way, the dialogue between the judicial system and the elected government will improve. They also ignore the fact that such changes are only temporary solutions, and depend on a parliamentary majority which can also later reverse them, but even more so because they do not address the core of the problem: The lack of a conservative judicial orientation in Israel. Forcing “political humility” or “judicial restraint” on the court by means of legislation will be a futile effort so long as the sitting judges do not identify with an ethos of political conservatism. After all, the gates of interpretation are open, especially when it comes to justices in the Supreme Court. Moreover, in the current situation in Israel, in which a significant portion of the centers of power do not respect constitutional arrangements or majoritarian mechanisms and stand by the judicial branch when it makes decisions that are in line with their positions, there is no one who can protect us from our judges, and, no less important, no one who can protect the judges from themselves.

The only solution lies in including the ideas of “political humility” and “judicial restraint” in judicial education, which we have presented extensively in this article. This kind of education demands patience, of course, which is often lacking even amongst those who support a conservative approach. According to conservative philosophy, there are no “perfect solutions,” only slow processes of compromises and incentives. Along these lines, I will suggest some rules of thumb of education for judicial conservatism. These demand judicial “self-restraint,” to use Posner’s phrase,[69] and cannot be advanced through legislation or coercion. Only one who believes in this path will find them of interest.

First, conservatism seeks to improve and advance carefully in accordance with social principles that develop with time (“improvisation”)[70], and it does not seek to dogmatically defend abstract meta-principles. Therefore, any use of the idea of “fundamental principles” or “eternal doctrines” undermines conservative thought in general, and conservative judicial thought in particular. Similarly, conservative thought is applied in relation to a particular point in time and, consequently, the conservative judge needs to be careful not to take a particular “basic norm” and base his decision on it. Along these lines, a conservative judge should refrain from using amorphous terms like “the fundamental principles of the approach” to justify his decisions.[71]

Second, a conservative judge should minimize his use of ambiguous concepts like “justice,” “proper,” “proportional,” “reasonable,” and the like, so long as the law does not itself offer such a concept; even then, he needs to suspect himself of injecting his own personal opinion into the term.[72] The same goes for terms like “public trust,” “common practice,” “a national plague,” “a broad phenomenon,” “it is well known,” and other terms that have not been empirically tested, and which tend to reflect the judge’s personal opinion at that particular time.

Third, any use of a doctrine that is not based in legislation (that was invented in an academic article or in another decision of the same judge) is likely to serve as a cover for creating law ex nihilo. As a result, a conservative judge should distance himself from this. The judge’s main tools are legislation and the precedents of interpretations of legislation. Therefore, according to political conservatism, precedents that were created based on nothing have precisely that amount of weight: none.[73]

Fourth, the conservative judge must attach his interpretation to existing legislative products. Although there is debate regarding the proper theory of interpretation, even among conservatives, what is not in doubt is that interpretation that is clearly opposed to the plain meaning of the law undermines the logic of democracy. Hermeneutics of textualism and intentionalism are interpretive approaches which explain existing law, as opposed to other approaches (such as purposive interpretation or reformative interpretation[74]) which grant excessive power to the judge’s discretion and empower him to formulate and create new law.

Fifth, judicial conservatism does not guarantee that the judicial result will be conservative so long as the legislator is not conservative in his views. This is where judges are truly tested as to whether they are conservative: True conservatives are faithful to political products and respect the will of the sovereign and its representatives even when it does not match their own worldview, while others seek to advance their personal opinions.

Sixth, a court with judges with a conservative orientation does not require diversity based on a list of political identities. It is enough that its judges have a dialogic approach. Diversity and pluralism are important for elected branches that represent the public in making value-decisions and necessarily need to reflect the public’s social and political diversity. So too for a court whose members do not have “political humility,” or, even worse, do not exercise “judicial restraint.” Such a court does need a diversity of social, ethnic, religious, gender identities, and more to somewhat reflect the diversity of the people.

Seventh, “the most talented academic is the partner of the rationalist” and ergo, it is improper to appoint judges to the Supreme Court directly from academia. It is appropriate that appointments to the Supreme Court, which stands at the apex of the judicial pyramid, should be individuals with extensive judicial experience, which academics inherently lack. Good legal scholars generally have impressive talents in legal writing but lack “practical knowledge,” and tend towards excessive dependence on rationality, which served them well in their legal research. An academic who wishes to be appointed as a judge should serve for a number of years in local or regional courts before being appointed to the Supreme Court.

Eighth, even a conservative judge can make a decision that is “beyond the measure of the law,” as long as the measure of the law is clear, and as long as it does not go so far as being “outside the letter of the law.” The Hebrew term, lifnim mishurat hadin, literally means “from within,” meaning that, at times, the law itself gives the judge the authority to decide in such a way that is not in accord with the letter of the law (for example, “the court is permitted, if it sees it just to do so”[75]). The judge does not do so based on the mercies of his own heart. Similarly, he must act in accordance with the complementary instructions of the Foundations of Justice Law, which state: “if the court sees a legal question that demands a decision, and did not find an answer in existing legislation, in pre-existing decisions, or through analogy, it should decide based on the principles of liberty, justice, honesty and peace of Jewish law and tradition.” If a judge goes beyond the law, to principles that do not derive from Jewish law and tradition, then he is in violation of the role of the conservative judge.[76]

Ninth, individuals with a progressive orientation should seek out civil, academic, social, or political outlets, but should not be appointed to the judiciary. If they are appointed to the judiciary out of a sense of mission to lead and to influence the moral direction of society, they must not abuse their power in order to force or impose their own personal values on the public, but should do so only as a suggestion or recommendation, while being transparent about their own moral views, so that the public may respond in a topical manner. In this way, the political purpose of a judge in a democratic society can be fulfilled, and the state’s sovereign, its citizens, have the last word in shaping its political frameworks.

Tenth, and most importantly, a truly conservative judge will refrain from dealing with any “hard cases,” whether by strictly observing the rules of standing or those of justiciability.[77] Whenever there is a values question that comes before him whose answer is not prescribed in law, he must reject engagement with it out of hand.[78] The conservative judge will make every effort to maintain the boundaries of the language of the law, will respect political results, and will refrain from intervention, even if the result is not in accord with his view, such as the draft exemption of “torato umanuto.”

It has become a tradition; but a “judicial tradition” that ignores public opinion, that has not been adopted by the majority of the public, that more and more people are opposed to as the years go on, and that is imposed upon the public to a certain extent, is not a tradition.

It has become a tradition; but a “judicial tradition” in which every judge can create new traditions by using meta-norms or basic principles based on his own personal worldview or subjective values, is not a tradition.

It has become a tradition; but a “judicial tradition” that has transformed into a hegemonic orthodoxy, which ignores the basic principle of a sovereign power that “we do not make a decree on the public unless the majority of the public can live up to it” (Babylonian Talmud, Avoda Zara 36a), is not a tradition.

In a democratic state, the function of dialogue is not only the purview of the branches of government. It is a role we all must fill. Dialogue does not mean agreeing with your interlocutor, but the burden of proof must lie with the one who opposes the opinion of the majority of the public; he must recognize the possibility that at the end of the dialogue, he will not succeed to convince the other side of the correctness of his position, and he will have to respect the decision of the majority, as they are represented in the political framework.

Before concluding, I will add: While the above may sound critical, it was written out of sincere concern for the stature of Israel’s judiciary, and a belief that those who serve in it aspire to the welfare of the people and the state. It is worthwhile to recall that sometimes, the other side of truth is not falsehood, but peace, and although the main role of the judge is to seek truth and justice, in a divided society on the brink of the abyss, it seems proper to adopt a judicial orientation which integrates peace into the judge’s approach as well. May we and our judges merit to fulfill “Truth and peaceful judgment shall you judge in your midst” (Zecharia 8:16).

photo credit: Joe Gratz via Wikimedia

[1]  HCJ 6198/23 The Movement for Quality Government in Israel v. Minister of Defense, para. 61 (25/6/2024).

[2] Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197-1198 (2009). Regarding the dispute in the Israeli legal community, see, e.g. Mordechai Kremnitzer, Yoav Dotan and Ruth Gavison, Aktivizm Shiputi: Be’Ad VeNeged Mekomo She Bagatz BaChevra HaYisraelit (Judicial Activism: In Favor and Against the Place of the High Court in Israeli Society) (2000); Omri Yadlin, “ ‘Shikul Daat Shiputi’ ve’Aktivism Shiputi’ KeMischak Astrategi” (’Judicial Discretion’ and ‘Judicial Activism’ as a Strategy Game”) , Mehkarei Mishpat 19 665,667 (2003); Aharon Barak, Shofet BeChevra Demokratit (The Judge in Democratic Society), Haifa University, 2004, pp. 390-398; Ariel Bendor, The Israeli Constitutionalism: Between Legal Formalism and Judicial Activism, in International Conference on “Constitutionalism in The Middle East: Israeli & Palestinian Perspectives”, The Center For Comparative Constitutionalism, University of Chicago, 2004; Menachem Mautner, “Aktivizm Shiputi- Ha’aracha” (“Judicial Activism- An Appraisal”), Alei Mishpat 4:7 (2005); Daniel Friedman, “Formalizm Ve’Arakhim- Bitachon Mishpati VeAktivizm Shiputi” (“Formalism and Values- Legal Confidence and Judicial Activism”), HaMishpat 11: 9. 18 (2007); Eli Salzberger, “Judicial Activism in Israel”, in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts (2007), 217; Omer Shapiro, “Al Shfitut, Bikoret Shiputit VeRisun Shiputi: Tze’adim LeShikum HaImmun BeVeit HaMishpat HaElyon” (“On Justiciability, Judicial Review and Judicial Restraint: Steps for Repairing Trust in the Supreme Court”), Mishpat VeAsakim 11:193 (2009); Hillel Sommer, “BeZechut HaRisun HaShiputi BeTechum HaChukati” (“In Defense of Judicial Restraint in Constitutional Law”), Mishpat VeAsakim 14:155 (2012); Daniel Friedman, “MeAktivizm Shiputi LeMahapecha” (“From Judicial Activism to Revolution”), HaShiloah 23 (2021); Matanel Bareli, “Gilgulei HaMusag ‘Shilton HaChok’ BeYisrael: Bein Formalizm LeMahut, Bein Risun LePe’ilanut” (“The Meanings of the Term “Rule of Law” in Israel: Between Formalism and Essence, Between Restraint and Activism”) Mishpatim 54 (2024).

[3] There are other jurists who serve in other public functions, such as state attorneys, legal advisors, police prosecutors, and the like. However, most literature dealing with the definition of legal thought, in general, and conservative legal thought, in particular, relates to the way the judge is meant to behave in court, by applying his legal knowledge and interpreting the law or the constitution. See articles cited above.

[4] In contrast, the American discourse regarding conservative judicial thought is prolific. The canonical articles on the issue can be found in the following list: Harold J. Berman (“The Historical Foundation of Law”), Thomas Sowell (“Judicial Activism Reconsidered”), Jeremy Waldron (“The Core of the Case Against Judicial Review”), Judge Michael McConnell (“Four Faces of Conservative Legal Thought”), Judge Richard Posner (“The Meaning of Judicial Self-Restraint”), Judge Frank Easterbrook (“Judicial Discretion in Statutory Interpretation”), Peter K. Weston (“The Empty Idea of Equality”), HLA Hart (“Positivism and the Separation of Law and Morals”), Judge Robert H. Bork (“The Permanent Revolution”), Stanley Fish (“Intention is All There Is”), and of course, Federal Supreme Court Justice Antonin Scalia’s many articles (“On the Vocation of Being a Judge”, “The Rule of Law as a Law of Rules”, “Mullahs of the West: Judges as Moral Arbiters”), as well as his book In the Name of the Law (Sifriyat Shibolet, 2022), a collection of articles by one of the foremost figures in the world of American conservative legal thought. It is important to recall that conservatism is first and foremost a political, social and cultural philosophy and ideology that is applied to a particular political group that uses it in a particular situation, time and place, and therefore, American legal conservatism will not be identical to its counterpart in Israel. Each political framework has its own unique characteristics, or, as Assaf Sagiv formulated it; “Every conservative tradition is conservative in its own way” Assaf Sagiv “The Curious Case of Radical Conservatism”, HaZman HaZeh (2022).

[5] The attempt to present a comprehensive picture is likely to miss specific points and to present an incomplete picture. Articles such as this, which seek to include many discussions with many concepts whose definitions are the subject of debate, tend to err in the sin of oversimplification. It is also important to emphasize that one article cannot suffice to undo the Gordian knot of this topic. Therefore, see this article as an invitation to discuss the definition of conservative legal thought, and not as a summary of it.

[6] Michael Oakeshott, “Rationalism in Politics”, in Oakeshott, Rationalism in Politics and Other Essays, Liberty Fund (1991).

[7] Ibid.

[8] Ibid.

[9] This is also an idea mentioned by Oakeshott, who argues that conservatism is an orientation, not a doctrine. See his article “To Be Conservative” in Oakeshott, Rationalism in Politics.

[10] Sowell, A Conflict of Visions.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Another important distinction is between a conservative discourse regarding values and a conservative discourse regarding  political processes. Failing to make this distinction leads to situations in which there are those who seek to act in line with conservative values through unconservative policies, and vice versa. Dr. Alon Shalev makes a distinction between ethical conservatism and political conservatism in the Ruach Maaravit podcast, episode 146. See as well Alon Shalev, “For the Public Good, Be Conservatives”, Mida 11/4/2019. Shalev notes that Roger Scruton refers to these concepts as empirical conservatism and metaphysical conservatism. See Scruton, How to Be A Conservative, Bloomsbury Continuum 2014.  There are others who refer to this as institutional conservatism vs. ideological conservatism. See Tamar Hostovsky Brandes, “What is Conservatism in Relation to the Application of International Law in Israel?” ICON-S-IL Blog, 28/12/2022. The most outstanding examples is the attempt at judicial reform in 2023, which expressed ethical conservatism, but whose execution was in opposition to political conservatism. See my thoughts in an interview with Netael Bandel, “How is it that the all of the legal academia speaks in one voice?”, Yisrael HaYom 2/2/2023: “The reform is being passed in a blitz with a revolutionary character that I do not share. Although I think it is good, it should be done slowly, legislated stage by stage.”

This is one of the main reasons by which different, and sometimes opposed schools of thought, can sometimes be covered by a single conservative philosophy. In Judge Michael McConnell’s book (above fn.4), he presents four different schools of thought that all adopt a conservative legal approach: Traditional Conservatism, Libertarianism, Law and Economic and Social Conservatism.

[15] In my opinion, a “judge with a progressive judicial orientation” should also present his political position in his decision, so that the public and its representatives can engage in dialogue with his value statements. A judge cannot impose his opinions on the public while evading explicit dialogue with them. See Shaul Scharf, “Shofet Politi BeChevra Demokratit” (A Political Judge in a Democratic Society) M’oznei Mishpat 14 2021, p.171.

[16]  This is a fundamental principle in the writings of the Federalist Papers, which are rife with the fear of divisiveness which will then lead to tyranny that comes from political ambitions. This concern appears sharply in the first article: “More often, dangerous ambitions can hide behind a fake cover of zealousness for national rights, even more than behind the appearance of zealousness for the harshness and effectiveness of the government. History will teach us that the first is a much surer way than the second to the establishment of a tyrannical regime, and that most people who eradicated the rights of republics made their name when they started out cravenly seeking the favor of their people. Demagogues at the beginning of their path and tyrants at its end.”

[17] This is a combination of insights from a number of articles: See W.B. Gallie, Essentially Contested Concepts, Proceedings of the Aristotelian Society 167 (1956), 183; as well as Austin Ranney & Willmoore Kendall, Democracy: Confusion and Agreement, The Western Political Quarterly 4(3), 1951, 430-431.

[18] Carl Becker, Modern Democracy, 1941, 4.

[19] A modern expression of fundamentalist liberalism can be found in woke culture, which destroys any statement which is not deemed to be liberal in the eyes of those who see themselves as the true liberals. See, for example, Sagi Barmak, “Yisrael Lo Tisrod Be’Olam Progressivi” (“Israel Will Not Survive In A Progressive World”), Mida 26/4/2024. In my opinion, this can be contrasted with liberal pluralism.

[20] Ran Baratz, “Demokratia Mahutit VeDemokratia Formalit” (“Essential Democracy and Formal Democracy”), HaShimua podcast, 23/1/2022: “Essential democracy […] is a topic that is never mentioned in the professional literature […] it is simply an Israeli invention.” I accept the distinction that Dr. Baratz suggests, which defined liberal democracy as a regime in which the majority tries not to hurt the individual or a minority in an unnecessary or arbitrary way, but that this cannot negate the basic modern application of the democratic regime, which is majoritarian, because if it can, then democracy can become an expression of the “tyranny of a minority”, which is the very opposite of its definition as “governing with the consent of the governed”. Listen as well to Jonny Green “Demokratia Mahutit- Bedaya Yisraelit” (“Essential Democracy- An Israeli Fiction”), Al HaMashmaut podcast, 6/1/2022.

[21] See Benjamin Schwartz, “Ledaber Nachon al HaDemokratia” (“Talking about Democracy Right”), HaShiloach 7 (2019), p.78, who notes the original and precise meaning of the word “democracy” as “the power of the people”. To this definition he added that “the idea embedded in it is that the governing power lies with the people. The public can shape its future, influence its fate, formulate its positions, actualize its principles, develop certain values and reject others. In short, the nation can rule itself.” In a footnote, he limits the majoritarian approach as the definition of democracy based on the claim that in a democratic regime, public representatives can also be chosen by lottery (known as sortition or lottocracy).

[22] The meaning of political equality is that all members of a political framework are permitted to take part in the political game. This value is expressed in the right to choose and be chosen. The meaning of the freedom of speech is the allowance of a “marketplace of ideas” with a variety of political possibilities that political players can offer. This value is expressed in rights regarding freedom of conscience, freedom of religion and from religion, freedom of assembly (into a political party) and freedom of protest. With the exception of extreme cases, in which players undermine the physical or fundamental existence of the state, political expression and participation should not be denied.

[23] There are conservative thinkers that avoid this term or are even repulsed by it, because they believe that a person’s rights are not the result of any abstract “nature”, created in a defined moment, but rather the result of a long tradition of unknown origins. The use of the word “nature” in the context of rights is based on Enlightenment thinkers who sought to base political society on a point in time that occurred after the existence of the “natural community”, based on the creation of a social contract (John Locke, Thomas Hobbes, and after them Thomas Paine and others). Edmund Burke, for example, speaks of the “historical society”, based on a conservative outlook that “a regime forms over the course of time”. See Yuval Levin, The Great Debate, Basic Books 2013. Regardless, not all conservative thinkers are opposed to this term, and there are those, defined as liberal-conservatives, who seek to advance natural rights according to their classic understanding within a conservative political framework.

[24] See Benjamin Brown, “Nikne BeYosher:Mashber Madaei HaRuach BeMaarav Ben Zmaneinu” (“Well-Deserved: The Crisis of Humanities in the Contemporary West”( Keshet: A Journal of Humanities and Society, 6 (2024), who claims that this dispute is like “the dispute between two Hasidic courts: each side thinks it stands on the opposite side of the world as the other, when in actuality they stand on the same side, together, on the head of a pin.”

[25] There are many possible expressions of the majoritarian process. For example, a parliamentary democracy is not the same as a constitutional democracy, which are not the same as a hybrid democracy integrating representative and direct democracy. What is shared by all is a majoritarian process that gives the public or its representatives the power to decide fundamental political questions.

[26] Yoram Hazony, Conservatism: A Rediscovery, 2022.

[27] The idea that the court is meant to defend the ideals of democracy without support of other national branches of power and without a public ethos regarding the values of democracy is mistaken. The following are a few blatant examples from the American Federal Supreme Court: Dred Scott v. Sandford (A decision in 1857 that established that blacks cannot become American citizens, are not legal entities, and therefore cannot petition the court, a decision that served as a catalyst for the American civil war); Buck v. Bell (A 1927 decision that established that sterilization of the mentally impaired is constitutional), Korematsu v. the United States (A 1944 decision that upheld the internment of Japanese American citizens as constitutional).

[28] Richard Posner, in the article cited above “The Meaning of Judicial Self-Restraint”, refers to this as “judicial self-restraint based on the principle of the separation of powers”, or, in short “structural restraint”.

[29] Article 2 of Basic Law: The Judiciary.

[30] Aharon Barak wrote tens of articles and books on this topic, foremost among them his book The Judge in a Democracy, published in 2004, and solely focused on the role of the judge. See as well his book Judicial Discretion (Yale University Press 1989), and volume 4 of his work Mivchar Ketavim- Al Beit HaMishpat VeShoftav (Selected Writings- On the Court and its Judges)  (Jerusalem: Nevo 2017), as well as his books from the 1990s dealing with the role of the judge. Another prolific writer is Judge Dafna Barak-Erez, who also dedicated a book to the art of judging entitled Machshavot Al HaShefita (Judicial Reflections). We can add to this list Judge Haim Cohen’s work HaMishpat (The Law), and Lihyot Shofet (To Be A Judge) by Shlomo Levin, which came out in 1996 and 2009, respectively.

[31] See, for example, Aharon Barak, Parshanut BaMishpat (Legal Interpretation), volume 2 (Statutory Interpretation 1993) and volume 3 (Constitutional Interpretation 1994); Shimon Nataf, Parshanut HaChakika BeYisrael (The Interpretation of Legislation in Israel), Bursi 2023, in the introduction; Alex Stein, Probabilism in Legal Interpretation, Iowa Law Review 1389 (2022); Uriel Charlap, “Originalizm Eino Ma SheChashavtem: Al HaHevdelim Bein Textualizm Uvein Parshanut Tachlitit” (“Originalism Isn’t What You Thought: On the Differences Between Textualism and Purposive Interpretation”) Forum Iyunei Mishpat 47 (2024).

[32] There are too many examples to count. The following are but a few. Justice Barak in HCJ 1635/90 (1991) Jerzhevsky v. The Prime Minister IsrSC 45(1) 749, 854: “As judges, we do not act based on our political views”; President Dorit Beinisch: “Politicization must not reach the court”, in Ruti Avraham “Friedman Mafri’a LeYa’el HaMaarechet” (“Friedman is Preventing the Optimization of the System”), News1 16/8/2007; Netael Bandel, “Judge Stein: ‘There are disagreements in the High Court, but there are no political opinions’”, Makor Rishon, 3/7/2019.

[33] Discussed extensively in my article, cited above, “Shofet Politi BeChevra Demokratit”, chapter 2: The dream of objectivity and its collapse.

[34] Shimon Nataf, “Parshanut Chakika BeYisrael- Mavo” (Legal Interpretation in Israel- Introduction), Reshut HaRabim, 28/8/2023.

[35] Barak, The Judge in a Democratic Society. Barak claims that “hard cases are the minority of cases […] but most hard cases are interesting and important. They affect the life of society.”

[36] Aharon Barak, “Al Tafkidi KeShofet” (On My Role as a Judge), Mishpat UMemshal 7 (2004), p. 33, 35.

[37] Daniel Friedman, Ketz HaTemimut: Mishpat UShilton BeYisrael, (The End of Innocence: Law and Governance in Israel), Rishon LeTzion: Miskal, 2019, p.579.

[38] The Federalist Papers, p. 262: “Ambition must be foiled by ambition”.

[39] See Bareli, “The Meaning of the Term”: “ ‘The rule of law’ describes the subjugation of all branches of government to the law, but inescapably, it also means their subjugation to judicial discretion. Therefore, we can suggest that from a realistic perspective, as it relates to a legal justification used by the court, the principle of the rule of law is convenient for the court to use in order to bring about processes that ultimately increase its discretion and authority more than other justifications that relate to the essential issues, and which therefore are given to more intense public dispute. We can summarize it this way: the concept of the rule of law can give a perception of restraint to what are actually activist processes.”

[40] See Scharf, “Shofet Politi BeChevra Demokratit”, pp. 199-200.

[41] See “Justice Amy Coney Barrett delivers remarks after her confirmation and oath of office”, Youtube, from minute 1:50-3:10.

[42] The use of the term “dialogue” in this article fits its use in political discourse, rather than in legal discourse, and therefore, we speak of “political dialogue” rather than “constitutional dialogue”, as in Bell Yosef’s article “HaDialog HaChukati BeYisrael: Shtei Nekudot Mabat” (Constitutional Dialogue in Israel: Two Perspectives) Mishpat VeAsakim 22 (2019), p.327.

[43] Gidon Sapir, HaMahapecha HaChukatit: Avar, Hoveh VeAtid (The Constitutional Revolution: Past, Present and Future), Yediot Books, Bar Ilan University and Haifa University, 2010, pp. 197-198. One of the basic assumptions of the rationale of dialogue is that the political framework lacks the means to encourage the public to relate to fundamental questions with the proper seriousness, and therefore, the court is given a certain amount of authority in their interpretation of the “values of society” and their suitability to existing legislation. But the court is only one player, and does not enjoy exclusivity, nor the right to the last word.

[44] Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Farrar, Straus & Giroux, (2009).

[45] For example, see American Supreme Court decisions from 2023: a decision that forbade using criteria of affirmative action for admission to universities and colleges: Students for Fair Admission v. Harvard 2023; a decision that allowed a religious Catholic store-owner to discriminate against customers based on their sexual orientation: Creative v. Elenis, 2023; a decision that cancelled the legal protection of the right to an abortion: Dobbs v. Jackson 2022.

[46] Aharon Barak, Selected Writings, 4, p.220.

[47] In a speech Barak delivered at a swearing-in ceremony of judges at the President’s Residence in 2000, he emphasized that: “One who asks that the court refrain from making decisions on values damages the essence of law and the very heart of democracy. There is no court in the world, and there cannot be such a court, that refrains from making value decisions” (ibid. p. 177), and added “However, our values decisions are objective. We do not express our own personal values, but rather the values that emerge from laws passed by the Knesset, and that are anchored in our identity as a Jewish and democratic state.”

[48] HCJ 6298/07 Ressler v. The Knesset, Justice Beinisch’s decision. See the discussion in the writings of Menachem Mautner, “Yeridat HaFormalizm VeAliyat HaArachim BeMishpat HaYisraeli” (The Decline of Formalism and the Rise of Values in Israeli Law), Iyunei Mishpat 17 (1993), p. 503: Mishpat VeTarbut BeYisrael BeFetach HaMeah HaEsrim VeAchat (Law and Culture in Israel at the Beginning of the Twenty-First Century), Tel Aviv: Am Oved, 2008, chapter 7. See as well: Gad Barzilai, “HaMishpat KeSadeh BeMisgeret Shel Koach Politi: HaIm Beit HaMishpat Nas’ei Shinui Chevrati-Politi Ve’Im Ken- Keitzad?” (“Law as a Field in the Framework of Political Power: Is the Court an Agent of Social and Political Change, And if Yes- How?”) in Dafna Hecker and Neta Ziv (eds.)’ Ha’Im HaMishpat Chashuv (Is Law Important), Tel Aviv University 2011, p.107.

[49] HCJ 6298/07, ibid. para. 2.

[50] Ibid, para. 3 in Justice Grunis’ decision.

[51] HCJ 3660/17 The General Union of Independent Merchants v. the Minister of the Interior, para.2 of Justice Hendel’s decision (26/10/2017).

[52] HCJ 1550/18 The Secular Forum v. The Minister of Health. In this decision his position was to reject the petition primarily because “it would have been preferable had this petition not been made. If my opinion were to be heard, it is more appropriate for the court not to decide in cases of dispute […]”

[53] HCJ 1661/05 Chof Azza Regional Council v. Knesset Yisrael, IsrSC 59 (2) 481 (2005).

[54] Ibid., pp. 750-751.

[55] Ibid., p. 765.

[56] To understand the extent of Judge Levy’s activism in the realm of human rights, it is sufficient to read Mordechai Kremnitzer’s words of eulogy and praise: “Al Shivyon VeKavod Enoshi Lefi HaShofet Edmund Levi z”l” (“On Equality and Human Dignity According to Judge Edmund Levi ob”m”), on the Israel Democracy Institute website, 26/3/2018.

[57] Judge Levy’s actions shocked the Supreme Court judges, as Naomi Levitzki describes in her book: “The judges were all shocked, not because Levy wrote a minority opinion- they had expected that- but because of its content. They saw what he wrote not as a legal document but as a political manifesto, a violation of all of the rules of the game. We do not intervene in the political interests of the government, they said, this has never happened before (emphasis added)” Naomi Levitzki, HaElyonim: Betochechi Beit HaMishpat HaElyon (The Supremes: Inside the Supreme Court), Bnei Brak: HaKibbutz HaMeuchad, 2006, p.373. The judges’ argument, in the body of their decision and behind the scenes, that they do not decide based on their political outlook, sharpens the mistaken frame of mind in which they are trapped, according to which it is possible to discuss a political topic disconnected from their moral identity. Later, Judge Zvi Tal, when he was already “without robes”, admitted that “although the Supreme Court wrote 300 pages explaining that it does not intervene in politics, this is the most political Supreme Court decision there was (emphasis added)”, Elichai Shilo (ed.), Lelo Gelima: Sichot Im Shoftei Beit HaMishpat HaElyon (Without Robes: Conversations with Supreme Court Judges), Tel Aviv: Miskal, 2017, p.197.

[58] The first time that this issue came before the Supreme Court, in 1970, Justice Witkon rejected it out of hand, on the basis of lack of standing (HCJ 40/70 Becker v. The Minister of Defense). Ressler’s first two petitions in the early 80s were rejected with similar arguments (HCJ 448/81 Ressler v. The Minister of Defense; HCJ 179/82 Ressler v. The Minister of Defense). As mentioned in our introduction, in the 80s, the Supreme Court opened its doors to all who would enter, and from that time, the Supreme Court’s involvement in the question of the conscription of Yeshiva students has become more and more complicated.

[59] HCJ 1877/14 The Movement for Quality Government in Israel v. The Knesset.

[60] HCJ 5555/18 Hasson v. Knesset Israel.

[61] HCJ 5969/20 Shafir v. The Knesset.

[62] HCJ 5658/23 The Movement for Quality Government in Israel v. The Knesset

[63] Aryeh Edrei, “Moetzet Gedolei HaMishpat” (“The Council of Legal Elders”), Reshut HaRabim 23/3/2023.

[64] The Supreme Court discussion of the reasonableness clause.

[65] As in the Deri-Pinchasi decision, in which the court ruled to fire the minister on the date that an indictment against him was filed, instead of the date that he is convicted of a crime that involves moral turpitude, as paragraph 23 of Basic Law: The Government establishes. See: HCJ 3094/93 The Movement for Quality Government in Israel v. The Israeli Government, IsrSC 47(5) 404 (1993), HCJ 4287/93 Amitai- Citizens for Sound Administration and Moral Integrity v. The Prime Minister, IsrSC 47(5) (1993).

[66] According to this, perhaps Alex Stein should also be included in this category, since in HCJ 5119/23 The Movement for Quality Government in Israel v. The Knesset (26/10/2023), known as The Teverya Law Bagatz, he described the Declaration of Independence as “basic norms upon which all of Israeli law rest.” Afterwards, on the case of the reasonableness clause, Stein relied on the theory he developed regarding the foundation of Israeli law, and although he admits that “the content of a law cannot be dependent on the personal desires and values of the judge, or the values of good citizens with whom the judge identifies, enlightened and lofty as they may be”  (para. 22 in his opinion), nevertheless, according to his approach, there is a higher norm, the result of a judicial precedent which he created, which limits the Knesset, the representative of the sovereign people, from acting according to the desire of the people. For a critique see: Barak Medina, “Pesak HaDin Shel HaShofet Shtein Be’Inyan Ma’amada Shel Hachrazat HaAtzma’ut” (“Judge Stein’s Decision Regarding the Status of the Declaration of Independence”), Hebrew University Law Professors’ Blog, which arrives at a conclusion opposite that of the view of judicial conservatism, according to which the “basic principles of our legal method” should be added as another limit on the power of the Knesset.

[67] Yaniv Roznai, “Shamranut Radikalit VeDoktrinat HaTikkun HaChukati HaLo-Chukati” (“Radical Conservatism and the Doctrine of an Unconstitutional Constitutional Amendment”), ICON-S Essays: Chiburim BeMishpat HaTzibburi 1:1 (2022). It is worthwhile noting an interesting phenomenon that has been taking place in Israel of late, wherein although judicial education is completely opposed to characteristics of judicial conservatism, many legal scholars and judges like to tout their conservatism.

[68] For an elaboration of this critique, see Bareli’s response, cited above fn. 14.

[69] See Posner, “The Meaning of Judicial Self-Restraint” where he defines self-restraint as an orientation in which “the judge, while coming to his decision, sees the limitation of the power of the judicial system in which he serves as a check on other governing bodies as an important goal.”

[70] Tzur Ehrlich, “Ani VeAta NeShaper Et Ha’Olam” (“You and I Will Improve the World”), HaShiloach: Special edition for the Conservatism Conference, 2019.

[71] During the 80s, before the “Constitutional Revolution”, the Supreme Court used the vague term “basic principles of the system” in order to justify their decision (only) 11 times. During the 90s, the use of this term increased, and it was mentioned in Supreme Court decisions more than 100 times, during the first decade of the 2000s-  250 times, and during the second, over 300 times. In total, from the beginning of the twenty-first century until now, the Supreme Court used this term more than 700 times. This finding refers to the number of decisions in which the term appears at least once, by using the Nevo online database (searching for words in close proximity, in order, with non-exact morphology). Another search, adding the terms “fundamental principles of the regime” and “basic principles of law” (with the same search parameters) gave a result of 18 times that these terms were use din the 80s, 126 times in the 90s, and 630 times in the two first decades of the 2000s (the search is accurate as of 1/20/2024).

[72] See Antonin Scalia, “The Rule of Law as a Law of Rules”. In the Israeli context, see, for example, the concept “good faith” which appears in the context of acquisitions, concerning competition for properties, in the context of contracts concerning the obligation of all sides from the stage of negotiation until fulfilment, and in a corporate context concerning the obligations of stakeholders. See, respectively, article 10 in the Land Law 1s969, article 12 and 39 in the Contract Law (general portion) 1973, and article 192 of the Companies Law 1999. The concept “justice” is applied in cancelling a contract because of a fault in its creation or because of its violation- see article 14 of the Law of Contracts (“One who entered into a contract mistakenly…the court is permitted, on the request of the erring party, to cancel the contract, if it saw that it is just to do so”) and article 3(4) of the Law of Contracts (Compensation for Violation of Contract) 1970 (“Enforcing the contract would be unjust in the current circumstances”). To these should be added stop-gap concepts like “the public good” (article 30 of the Law of Contracts) “reasonableness” (which appears more than 25 times in the torts ordinance, the main source of the discipline in Israel). Even in a procedural framework, like a request for temporary aid in a civil procedure, the term “proportionality” is a condition for confirming the request (Amendment 362(b)(2) to Amendments of the Civil Legal Procedure, 1984). See also articles 2,4, and 99 of the Amendments of the Civil Legal Procedure  2018.

[73] See Shuki Segev, “Takdimim, Ta’uyot VeChamkanut Chukatiim: HaElyonim HaAmerikanim BeTenua” (“Constitutional Precedents, Mistakes and  Elusions: American Supreme Court Justices on the Move”), Reshut HaRabim 16/9/2020, which discusses the dilemma of the conservate judge towards activist precedents.

[74] See Nataf, Legal Interpretation in Israel.

[75] See articles 14b, 31, 43b in the Law of Contracts (general section) and article 7 in the Arbitration Law.

[76] There is little use made of the Foundations of Justice Law. The “legal” reason for this is that the Supreme Court established that we only need to fill in a lacuna in this way when purposive interpretations based on the basic principles of the system does not lead to any conclusion. But actually, many Supreme Court justices don’t use this law, even when this is the case. See, for example, Or Basok, “Chakika NItzchit KeDay Madai, Paras, Ve…Yisrael” (“The Eternal Law of Persia, Medes … and Israel”), Reshut HaRabim (11/7/2024), who argues that in the case regarding the Nation-State Law (HCJ 5555/18) and the reasonableness clause (5658/23) insights from the legal systems from India to Brazil, and from the United States of America to Germany were discussed, but no one bothered to look at Jewish sources regarding the limitation of power of the legislature. In the case of the Nation-State Law, see paragraph 34 of President Hayut’s decision (on the United States), and paragraph 15 of Justice Barak Erez’s decision (Germany). In the case of the reasonableness clause, paragraphs 61 and 69 of President Hayut’s decision (India and Brazil), paragraph 6 of Justice Kasher’s decision (India) and paragraph 10 of Justice Grosskopf’s decision (India).

[77] See, for example, Sommer’s suggestion “In Defense of Judicial Restraint in the Constitutional Realm”, that judges should follow the Ashwander Rules, collected by Justice Brandeis in the Ashwander v. Tennessee Valley Authority decision, 297 U.S. 288 (1936).

[78] HCJ 5004/14 Jacqueline v. Ministry of Education, paragraph 4 of Justice Stein’s decision: “The balance between autonomy and equality is one of the first social arrangements that is granted to the legislator alone. The decision regarding how this balance is struck must be made on election day, not on the day of petition to the court” (emphasis added).