Has the legalistic approach overstepped itself?

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 shoulder.

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 list.

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.

But is 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 picture.

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 issues.

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.