Asher Maoz*

The Boundaries of Justiciability: Parliament, Government, and Courts

A decade ago Justice Aharon Barak, the current President of the Supreme Court, declared that all human activities are captured within the ambit of Law.  Logically, it could therefore be inferred that legal norms exist which are applicable to all such activities.  According to Justice Barak there is no legal vacuum.  This is so because law comprises a set of prohibitions and permissions and each activity is either permitted or prohibited by law.  The result of these assumptions is that every activity is normatively justiciable as by definition legal standards exist to determine its legality.  Indeed, Justice Barak argued that all the precedents rejecting petitions for lack of normative justiciability had done so on the merits after the petitioner had failed to convince the Court that the law prohibited the act, which was being challenged.

Justice Barak saw more substance in institutional injusticiability, sometimes referred to as “the political question”, yet he accepted this facet of injusticiability “only in those special cases where concern that public trust in the judges would be hampered superseded concern that public trust in law would be endangered”. Justice Barak rejected all other arguments supporting institutional injusticiability and argued that by its intervention the Court does not demonstrate lack of respect for other branches of government nor does it involve the Court in political decisions.  Referring to the standards of supervision Justice Barak explained that the Court would examine whether the governmental authority reached a reasonable decision.

Justice Barak’s view gained support in Supreme Court’s decisions. Thus, the Court ruled that political agreements are justiciable as were the government’s decision to defer military service of students of Torah and the decision to expel 400 members of terrorist organizations following continuing terror attacks within Israel.

This paper aims to challenge Justice Barak’s assumptions and conclusions.  It argues that law intends to regulate certain areas of human activities only, leaving other areas for social and moral regulation.  It argues, moreover, that by examining governmental decisions according to a super criterion of reasonableness the Courts assume functions allocated to other branches of government.  This results in crippling those branches, relieving them from responsibility for their actions and infringing doctrines of democracy and principles of the separation of powers. This task assumed by the Courts and in particular by the Supreme Court sitting as a High Court of Justice, places a load upon them which precludes them from carrying out their usual business.  Moreover, the Courts’ intervention in political questions paints them as taking sides in controversial issues and diminishes public trust in them.  Finally, in many cases traditionally regarded as injusticiable, the Courts are unable to reject the governmental decision, but by purporting to intervene the Courts are understood as supporting the state in such controversial decisions. In short, the gains derived from the policy of universal justiciability are questionable while the ensuing loss is substantial.

*  Head of the Prof. Dr. Raphael Taubenchlag Institute of Criminal Law, Tel - Aviv University.