Leviathans, minnows and the rule of law

We cannot manage without the leviathan. Thomas Hobbes, who originated this metaphor for government, emphasized the essential nature of central authority for the proper functioning of a well-regulated society, with institutions and arrangements that guarantee its stability, efficiency, and security.

One of the talmudic sages, R. Hananiah the Temple prefect, made the same point: “Pray for the welfare of the government. For if it were not for fear of it, one man would swallow his fellow alive (Avot 3:3).”

But the powers we voluntarily surrender to the leviathan are incomparably vast and dangerous. The government employs institutionalized violence internally (the police) and externally (the IDF). We pay it billions in taxes, based on the expectation that it will provide us with essential public goods – healthcare, pensions and social services. In addition, the government controls the educational systems that mold the next generation.

The most important mechanism that prevents this fearsome leviathan from abusing its immense power is the law. After all, the law applies not only to citizens, but also to the authorities. As such, this is the appropriate background for examining a new proposal for a Knesset bill on the appointment of legal advisers to various ministries.

We are in the habit of attacking these advisers, sometimes with good reason, for complicating the decision-making process and “not letting the government govern.” But we need to focus on the broader picture. Legal advisers (and comptrollers) function as our gatekeepers, protecting us citizens from government actions.

Legal advisers constitute our first line of defense, examining whether the rule of law is being maintained, so that the leviathan obeys the rules – both before and while it acts. So how should these advisers be appointed?

Today, ministerial legal advisers are appointed through a process that guarantees they are totally independent of the political echelon. However, the proposed bill would make a drastic change: the process would be turned over to a search committee that vets the candidates’ suitability for the post.

This committee would be headed by a ministry’s director-general, who serves at the minister’s pleasure. Among the candidates found to be qualified, the minister would then select the adviser he prefers, subject to approval by the attorney-general.

It is true that the proposed method would not demote the legal adviser to being the minister’s personal appointment. Nevertheless, the change would cause a significant worsening of the balance of power between the leviathan and the rule of law.

The legal adviser in a government ministry is not the minister’s private attorney. His role is more complex, because he has two “clients” – the public (and its interest as embodied in the preservation of the law), and the minister (in promoting the policies he/she was chosen to implement). Both are worthy interests. The question is how the legal adviser would act when there is a conflict between the two.

The bill would make ministry legal advisers more dependent on the minister and director-general, while weakening their link to the attorney-general, who is the public’s representative for protecting the rule of law. That is, the leviathan wants to arrogate to itself not only the power to wield its authority, but also the authority to appoint those who are supposed to restrain its use of power.

It is true that the bill would give the attorney-general a veto over the appointment of ministries’ legal advisers, so that ministers would avoid choosing those who are clearly unqualified. Nevertheless, members of the legal profession would understand that even the possibility of being considered for the post depends on the whims of the political echelon.

The spread of this message is precisely what the bill aims to do: vastly increase the incentive for lawyers to whitewash the “gray” cases. As a result, legal advisers would join the other clerks in the minister’s office as obedient minnows swimming alongside the leviathan.

The bill thus needs to be modified in two respects. First, the search committee should be headed by a professional, rather than a political appointee. Second, the appointment process should be reversed, so that it is the attorney-general who selects the winning candidate, subject to the minister’s approval.

This would strike an appropriate balance between conflicting interests, when these arise: first the rule of law and only then the implementation of the political echelon’s agenda. Just ask Hobbes.

Yedidia Stern is vice president of the Israel Democracy Institute and a professor of law at Bar-Ilan University.