Has the legalistic approach overstepped itself?
Think About It: The legalization of our lives has reached monstrous proportions, and complex, contorted legal arguments and provisions have taken precedence over norms, moral principles and common sense.
Justice Minister Yaakov Neeman Photo: Courtesy of Knesset
At the weekly government meeting a week ago Sunday, Justice Minister Yaakov
Neeman proposed that within the framework of changes in the Rules of Procedure
for the government’s work, the provisions regarding the procedure for approving
government resolutions should be changed.
The situation today is that a
proposal for a resolution that is brought to the government is accompanied by an
appendix that includes a legal overview of the resolution, prepared by the legal
adviser of the proposing ministry. Also included in the appendix are the legal
opinions of the legal advisers of other ministries that might be affected by the
resolution, which include warnings about legal difficulties in its
implementation, which in their opinion warrant an amendment to the wording of
the resolution, or its rejection.
Neeman’s proposal was that all these
legal opinions should no longer be submitted, unless the legal advisers claim
that the resolution is illegal ab initio.
Some observers have commented
that Neeman’s proposal appears to be part of an ongoing campaign on his part to
curtail the alleged excessive involvement of legal advisers in the work of the
government and public sector, and to limit the term of office of the legal
advisers in the ministries. They point out that his own personal encounters with
the public legal establishment on several occasions in the past – as when he was
prosecuted on charges concerning his allegedly filing a false affidavit, which
forced him to resign from his post as Justice Minister in Netanyahu’s first
government, but was later acquitted – have left a chip on his
However, I think the reality is much more complex than that.
Neeman is himself a wise and serious person and attorney, and it is unfair to
attribute his motives exclusively to a personal vendetta. There is no doubt that
the legalization of our lives has reached monstrous proportions, and that
complex, contorted legal arguments and provisions have taken precedence over
norms, moral principles and common sense.
The manifestations of this
reality include the excessive involvement of the courts in issues that could be
dealt with outside the court system; the excessive involvement of legal
departments in the preparation and execution of major public projects that
frequently causes them to slow down, and even grind to a halt; the excessive
complexity and length of Regulations and Rules of Procedure compared to their
counterparts abroad; and the fact that most public figures today do not take a
step without a team of lawyers at their side. This is only a partial
The inclination to try and change this reality is understandable
and even welcome. However, in order to start contending with the problem, one
must understand its sources. If one believes the problem lies in the excessive
number and activist inclination of lawyers, legal advisers and the courts, then
one should close down some of the institutions that train lawyers, reduce the
number of legal advisers in public institutions (for example, the legal
department of the Knesset employs today over 50 attorneys, whereas 20 years ago
the number of attorneys employed by the Knesset was less than half a dozen), and
perform a counterrevolution in the field of judicial activism.
that really the problem? Perhaps the fact that the population in Israel is
divided ideologically and philosophically on so many important issues has
resulted in our being unable to agree on basic norms, moral values, and on what
constitutes “common sense,” and a legalistic approach is the only thing that
enables us to keep going.
Another possibility is that corruption and
irregular conduct have become so common in our society, both in the public and
private domains, that there is simply no other way to fight them. Or again,
maybe the problem is that as the Jewish side of the “Jewish and democratic”
equation on which the State of Israel is based has gained in prominence, the
Halachic inclination to lay down binding rules with regard to every conceivable
act that a human being performs (including spitting on Saturday), has spilled
over into the secular domain.
But to return to the proposal of the
Justice Minister, even though he has undoubtedly touched upon a real problem and
a raw nerve, there are many who suspect his true motives, believing that his
real aim is to weaken the left wing “rule-of-law gang” that according to some
right-wing circles controls the State Attorney’s Office, and the legal
departments in many government agencies.
Other objections to the proposal
have actually come from inside the government. Thus Intelligence Agencies
Minister Dan Meridor, himself a former justice minister, argued that before a
minister can vote on a resolution, he must have the complete legal
Even if a resolution being voted upon is not illegal ab initio,
it might clash with Israeli or international law, involve a conflict of
interests or other legal problems, and the average minister cannot be aware of
all of this if he is not provided with a document that explains the
Prime Minister Binyamin Netanyahu ruled that the issue required
further consideration, and will come up for deliberation on another occasion. In
the meantime it is reported that Neeman’s proposal has been passed on to the
government’s legal adviser for evaluation. Hopefully, should the proposal return
to the government for decision, the ministers will be provided with sufficient
background material – including a variety of legal opinions – for them to
understand the full implications of the move.
The writer teaches at the
Max Stern Yezreel Valley College.