The judicial reforms commenced with the removal of "reasonableness" as a judicial basis for criticizing ministerial decisions. One person’s reasonable is another person’s unreasonable, it is argued. It is a vague and subjective test, so let’s do away with it altogether.
Superficially this argument is attractive, not least because it contains an element of truth. Judges are human; no two humans will think identically about the same set of facts; so an element of inconsistency, which can appear to be arbitrariness or subjectivity, is inevitable. But closer analysis leads to a different conclusion.
1. All human life is here
Reasonableness is deeply embedded in the statutes and judicial decisions of rule of law societies. A tenant is responsible for damage to property, but not for "reasonable wear and tear". Some extra wear marks on the table are fine, but cutting it up for firewood is not; one may use "reasonable force" to defend oneself, but may not shoot an intruder dead as they flee the building; company directors must exercise "reasonable care and skill". Doing your best, but making bad decisions is OK; signing documents without reading them is not.
The word "reasonable" or its synonym is scattered throughout statute books and judicial reasoning in many legal systems. Rule of law societies need this all-purpose word to set the limits of acceptable human behavior in the myriad ways in which we interact.
The above examples are simple to decide. The harder borderline examples go to court, and the hardest reach the highest courts. Judges wrestling with the fine distinctions between acceptable and non-acceptable conduct set out their thinking in carefully reasoned essays. The reasoning and conclusions of the higher courts must be followed by courts of a lower level, thus setting norms for all of society to follow.
For example, it is no surprise that a boxer "agrees" to be hit by an opponent in the ring; but does a footballer "agree" to the sliding tackle, particularly one which gives rise to a penalty? When this borderline question reaches a Supreme Court - as it did in Canada - the judicial reasoning provides guidance which has wide relevance. Every school yard knock about with a ball is now provided with authoritative guidance as to what level of care for the other is "reasonable". And where the court of one country has not yet dealt with a question, it is common for it to look over its shoulder to some other respected judicial system for guidance. So the Canadian decision on the sliding tackle could send a ripple effect way beyond Canadian borders.
2. Precedent and experience
Litigation lawyers are constantly called upon to advise whether their client’s conduct is reasonable. If yes, fight the case; if not, compromise. Judges should ideally be selected from the most successful of such lawyers.
But these lawyers and judges do not give that advice in a vacuum. Rather they consider a vast array of authorities - other borderline cases - which create the tramlines of thought from which they generally may not and do not deviate.
Judges themselves seek to make good decisions, to avoid the humiliation of an appeal. Too many appeals of their decisions damages their reputation, is embarrassing, and limits career progression.
Seen in this context, the argument that "reasonable" is subjective falls apart. True, there is an irreducible element of human judgement in all decisions. But the entire system of precedents and judicial hierarchy is designed to iron out the subjective attitudes of an individual judge’s predilections. The result is as far from subjective or arbitrary as human beings can get. Only the disingenuous, or those ignorant of the judicial process, can argue otherwise.
3. Who is being subjective here?
The power of a judge to question a government decision is far more restricted and less subjective than the normal assessment of "reasonableness". In the examples discussed above, the judge is the decision maker. Was the sliding tackle reasonable? Was it reasonable to kill the fleeing intruder?
When questioning a government decision however, the judges must avoid putting themselves in the position of the decision maker. Rather, a government decision can only be overturned where it produces a result "so absurd that no reasonable person could have made it". This formula has been widely adopted by rule of law societies around the world, sometimes using synonyms such as "unreasonable in the extreme" (Israel) or "irrational" (UK) as the test.
When questioning government acts, the judge looks more at the process than the result. Were relevant matters overlooked or irrelevant matters considered - e.g., was building permission granted without considering the effect on the environment; or rejected because the applicant was the "wrong" color/religion/sex? And does the decision follow logically from the relevant considerations - after it was found that the building would ruin the local environment, was permission given to build it anyway? These procedural breaches render the decision unreasonable or irrational.
When these truly egregious decisions occur, it is government that is acting capriciously, subjectively and unlawfully - that is "ultra vires", i.e., outside the lawful limits of its authority. Victory at the polls does not authorize breach of the fundamental norms on which a rule of law society is based and which are located in its constitution, basic laws, or traditions.
The court, when reversing those unlawful decisions, is merely identifying the lowest standards below which a rule of law society cannot go, and preventing government from going there. The decision in question must be extremely unreasonable, and almost any citizen can recognize that level of unreasonableness when they see it.
Leaving senior positions vacant rather than convening an appointments committee; granting or withholding government funds on grounds of ethnicity or religion; putting a convicted fraudster in high office; relieving professionals of the need to gain relevant qualifications; appointing government officials based only on personal friendship - these are the tell-tale signs of corruption, kleptocracy, or plain idiocy. The path to failed statehood is paved with such government acts.
The recent law passed by the Knesset shields only the decisions of ministers from the test of reasonableness. Perhaps we should take comfort that it is only the most important decisions that are beyond judicial scrutiny. But this is a cold comfort.
When the court acts to protect the country’s citizens from capricious, irrational, and unlawful government acts, the citizens should be grateful. When a government wishes to sweep away the court’s power to protect citizens from that government’s overreaching acts, the citizens should worry.
The writer is a UK solicitor and the founder of Israel’s largest foreign law firm. The views expressed here are his own, and not necessarily those of his professional colleagues, or of "Globes".
Published by Globes, Israel business news - en.globes.co.il - on September 11, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.