In the past week, a new issue emerged every day, and the dispute is only increasing. Justice Minister Ayelet Shaked claimed upon taking office that "the governance has been transferred from the people's hands over to the legal system." At the beginning of the week, even before the new issues emerged at an average of one a day, Attorney General Yehuda Weinstein claimed that Shaked's approach was "simplistic and unfounded." Is that so?
Well, as opposed to Weinstein's claim, Shaked's approach is far from being simplistic and unfounded. On the contrary. Many leading constitutional law experts, in Israel and in the world, share Shaked's exact opinion. For example, Gad Tedeschi, one of the first and most important jurists in Israel, was considered a clear formalist. He passed away before the activism era, but his opinion on the matter was clear. He is much closer to the justice minister's approach than to the approach of Prof. Aharon Barak.
Prof. Richard Posner, one of the greatest jurists in the United States, argued that Barak was a "legal buccaneer" leading a judicial dictatorship. The opinion of Moshe Landau, who served as president of the Supreme Court, wasn't far from Posner's. Menachem Elon, who served as the deputy Supreme Court president, shared a similar stance. We can go on. Leading jurists in the US like John Hart Ely, Learned Hand and Edmund Burke shared a similar stance too.
And not just jurists. Abraham Lincoln, let me remind you, said that "if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
So there is no need to agree with Shaked in order to know that it's Weinstein's response which is "simplistic and unfounded." Why Weinstein knows, or is supposed to know, that many leading jurists support Shaked's approach. He knows that this is also the approach of Israel Prize laureates like Professors Ruth Gavison and Daniel Friedmann. So he could argue to the case in question. There is no need for insults.
The attorney general added the eternal cliché that "democracy is not just the majority rule." That's true. But it should be added that "democracy is not just the minority rule," and that people who are enlightened on behalf of themselves have no monopoly over the law and administration. In most cases in which judges and jurists intervened in political decisions, it wasn't in order to save democracy, but mainly in order to dictate norms accepted by "the enlightened public."
If a legal or judicial official intervenes, for example, in the education minister's decision, it won't be in order to save democracy. It will be in order to impose a norm of a certain political stream. This has already happened. When Dina Zilber, the deputy attorney general, dictated to a politician or government worker that the state must aid an association involved in the demonization of Israel, it wasn't in order to save democracy. It was the tyranny of the minority.
The attorney general's contempt towards the justice minister was uncalled for. It also harms the law and administration. If the attorney general wants to wage a battle against a legal approach he disagrees with, he should step down and wage a battle. But when he also insults the minister in charge of him and also stays put, he only proves that the minister is right.