Is the reasonableness standard reasonable?
Israel’s judicial reform can be a daunting topic to understand, as it is not one proposal, but several provisions. Some are simpler and more straightforward, like the Judicial Selection Committee or the override clause. But some issues, like the reasonableness standard, are more complicated.
The reasonableness standard resurfaced in the national debate last Thursday, when Israeli media reported that the coalition and opposition had come to a consensus on the matter. According to the report, the legal standard would be restricted from application to the government as a full body, but would apply to administrative branches and ministers. This would include appointments to ministerial positions, which would be the administrative decision of the prime minister rather than the whole government.
The Thursday report made few waves beyond specialized NGOs and politicians, a testament to it being less understood. Without an understanding of the subject, one cannot know whether to be outraged or mollified by such news. This is why it is important to explore the content, history and importance of the subject with legal experts.
What is the reasonableness standard?
The reasonableness standard is shorthand for the “extreme unreasonableness doctrine,” said Israel Law and Liberty Forum executive director Yonatan Green.
The doctrine is a common law legal principle applied to government administrative decisions, according to Dr. Amir Fuch, a senior researcher at the Israel Democracy Institute, much in the same way that judicial review is applied to legislation.
Fuchs explained that the reasonableness standard is a legal tool in which “the court should ask itself would a reasonable government, or would a reasonable minister, or would a reasonable anything decide the way the government decided.”
Under this standard, the court can rule on administrative matters brought before the bench as extremely unreasonable, and order the government branch to bring its administrative action in line with reason.
Green said that the doctrine “meant that the court could review or decide against any government action regardless of its actual legality, regardless of whether it was authorized.”
“Any government decision of any kind – from the very top government decisions like who to appoint to the cabinet or whether to go to war, down to the most minute decision by a social security bureaucrat or some tax official – can be reviewed by the court,” Green said. “This is the most subjective standard one can possibly conceive of.”
While Fuchs said that in a way the standard can be perceived as subjective – and he understood why some would see it as such – but “the verdict cannot be, ‘I think this is a bad decision’ or ‘I don’t like this decision.’”
“It has to be very extreme unreasonableness, something that no one in their right mind would decide,” Fuchs said. “But of course, even if we define it like that, there will always be disagreements about what is extreme unreasonableness.”
Tomer Naor, the chief legal officer of the Movement for Quality Government in Israel, explained reasonableness as applying issues that may not be explicitly forbidden by the law, but are obviously “not done,” such as a murderer who wants to collect a family member’s life insurance.
According to Green, reasonableness is outside the ordinary grounds of legality, in which something is done in accordance with the law or not.
Green described the doctrine as being more about the balancing of various interests and considerations. If the government implements a policy or action, the court can say that “the government did not weigh the various considerations correctly.”
“The court simply says, ‘We think your conclusion you reached is incorrect and therefore it’s unreasonable,’” Green said.
The standard isn’t written in any law, explained Avi Bell, a law professor at Bar-Ilan University and San Diego University. “It’s a judgemade doctrine.”
This is known as common law, which is created through the written opinions of judges and justices. Reasonableness’s entry into Israel’s common law has been hotly debated – whether the current iteration is a new invention of an activist court or a precedent inherited from the British.
What is the history of the reasonableness doctrine?
Many of the issues at the heart of the judicial reform debate lie in powers created or expanded by the judiciary in recent periods of judicial revolution.
Naor explained that “the reasonableness standard didn’t come to our legal system in 1980, but in the first days of the state,” when it was adopted from the British.
Green maintained that the names of the British doctrine and Israeli doctrine are similar, but differ fundamentally, so characterizing the doctrine as coming from Britain is historical revisionism.
In the UK, the doctrine comes from the 1947 Associated Provincial Picture Houses Ltd v Wednesbury Corp ruling, Green explained. “Many people call this Wednesbury unreasonableness.”
The Wednesbury doctrine pertained to situations in which a law or authorization was used in such an outrageous way and those creating it had “never conceived that it would be used in such an outrageous way and therefore never meant for the authorization to include that kind of action.”
Green gave the example of the prime minister appointing a horse to be a minister. Although Israeli prime ministers have the legal authority to appoint ministers, and the law doesn’t explicitly say that the minister has to be human, this would be considered an outrageous use of the law.
Bell said that Wednesbury doctrine was against arbitrary and capricious use of power, such as closing down every bank in a city for fiscal health, which wouldn’t seem plausible and isn’t a reasonable explanation for the action.
Israel adopted reasonableness, based on Wednesbury, in a 1950s case ruling, but principles on the clause’s implementation were introduced in subsequent rulings starting in the late 1970s.
“Traditionally in Israel, judges would review administrative action in order to see if it complied with the law,” Bell said. In the 1950s the court began to interpret laws as requiring compliance with basic human rights, and then came up with policy review.
The current version of reasonableness, according to Green, was developed by the High Court of Justice in the 1980s, but Naor said that “before the 1980s they used it in Israeli courts.
“It is possible to argue that in the 1980s it was expanded, but to argue that is when it was created is incorrect,” Naor said.
Bell said, however, that former Supreme Court president Aharon Barak and his fellow justices were “not shy about explaining that he was changing the rules” and that one can “consult any administrative law textbook from the 1980s and see that everyone acknowledged it.”
Naor argued that the standard has evolved naturally, and that “the court has changed along with the times. The court is not disconnected from the events in the country.”
How has reasonableness been used in Israeli law?
Israeli reasonableness differs from the Wednesbury doctrine, and therefore is employed differently. Critics argue that it is a subjective tool for judicial activism, and proponents say that it is a vital tool for addressing the needs of citizens.
Naor said that generally, the standard can be separated into use on appointments and government decisions.
If a decision is passed by the government, it needs to follow the proper process laid out by the government itself, he explained. If this doesn’t happen, citizens can bring this improper procedure before the court. This can apply to appointments, in which someone can be given a position because they’re the best person for the job, but then it is discovered that an insufficient background review was done.