Making Ministry Legal Advisors Political Appointees Goes Against Jewish Law
The question of how much power the government should wield was one that generations of halakhic decisors (poskim) worked to curtail.
A bill was recently published that would change the role of legal advisers in government ministries (the Basic Law: The Government [Amendment: The Government’s Authority in its Legal Matters] 5783-2023), so that going forward their role would be restricted to providing advice; they would be defined as political appointees, their advice would not bind the minister, and consequently they would not be able to veto a decision promoted by the minister even if they identify a legal difficulty with it. it. The rationale for this proposal, according to the justice minister, is so that “the government will no longer be subordinate to a non-elected echelon. Legal advisers are, as the title implies, advisers, not decision-makers. When they represent the state, they must represent the government and not the state attorney’s office.” Underlying this idea is the assumption that it is the government’s function to rule as it sees fit, and, consequently, it does not require prior approval of its positions by some external legal authority. In the future, the only redress for individuals who believe they have been harmed by government decisions or that it acted in an unlawful manner would be to petition the High Court of Justice after the fact.
Why is this idea improper from the perspective of the Jewish legal tradition?
In a nutshell: halakhic decisors noted the constant suspicion that decisions by community leaders may run counter to the law or the public welfare. To prevent this in advance, they stipulated that community leaders’ decisions are valid only if they receive the prior approval of some regulator knowledgeable in the law — “a distinguished person” (adam ḥashuv), in the parlance of Jewish law, who confirms that their decisions comply with the demands of the law and are indeed meant for the common good. Jewish law has emphasized that there must be some individual who works alongside the community leaders and weighs the lawfulness of their decisions in advance.
Various reasons have been offered for why approval by a “distinguished person” is necessary. The most important is: in order to make sure that the regulation the community wishes to enact does not violate other principles of Jewish law; that is, to make sure that they are “constitutional,” if you will. Moreover, this person would verify that the community leaders do not harm the interests of some group within the community. The leading scholar of Mishpat Ivri (which applies aspects of Jewish law to relevant areas of civil law) in our generation, Prof. Menachem Elon, put it this way: “The decisive act in the incorporation of community regulations into the system of Jewish law was the oversight authority granted to halakhic scholars — oversight intended to guarantee that the community regulations would not deviate, to put it in the language of the contemporary legal system, from the general principles of justice and honesty that are part of Jewish law.”
Jewish history tells of repeated cases of communities that wanted to free themselves of this requirement and enact regulations without needing the approval of a “distinguished person.” In other words, they sought to govern unhindered and with no binding legal regulator to examine the lawfulness of their decisions. Halakhic decisors did everything in their power to fight against this trend and make the community leadership subject to the requirement that their enactments be studied for their legality.
Especially interesting is one of the exceptions to the requirement for a “distinguished person’s” approval. There is no need for approval by a “distinguished person” when a decision by the community leadership can be expected to benefit all members of the community equally. This exception highlights the reason for this principle and its importance; it serves to verify that there is a need for an independent outside arbiter who will monitor the community regulations so they do not unlawfully impair the interests of some group within the community. We see, then, that in order to make sure that the decisions by the community leaders meet the demands of legality and do not unlawfully harm the interests of a specific group within the community, Jewish law demanded that their decisions be submitted for scrutiny and approval by an outside regulator, at the cost of some restriction on the community leadership’s freedom of decision.
But who is this “distinguished person” whose approval of community regulations is essential?
In the world of Jewish communities in the Middle Ages, it was only natural that the regulator be the local rabbinic authority, who had an in-depth knowledge of the requirements of the law and was also independent of the community leaders, such that he had the power to consider whether its decisions were proper. In fact, the decisors emphasized that the “distinguished person” is the official rabbinic authority in that town.
It goes without saying that in Israel, which is not a state of halakhah, government decisions are not submitted to the chief rabbis for their approval. The question that the country must ask itself does not concern the halakhic implementation of the requirement of a “distinguished person” in public life in Israel, but rather the appropriate Israeli interpretation of this requirement.
In the Israeli interpretation, the “distinguished person” must satisfy several criteria: he (or she) must be intimately familiar with the requirements of the law and the legal situation in order to verify that ministers’ decisions are lawful; independent of and unconstrained by the government; and based on a broad view of all the needs of Israeli society in order to make certain that government decisions (which reflect the majority view) do not inappropriately harm the interests of groups within Israeli society. One can think of various ways to implement this requirement. It seems that the appointment of independent legal advisers, who help ministries make decisions, is the most appropriate option for the modern Israeli embodiment of the ancient halakhic demand that community decisions receive the approval of a “distinguished person.”
The justice minister’s proposed reform, which would give the government maximum power with no need for the legal advisers’ approval, runs contrary to the principles outlined by the scholars of Jewish law. It is intended to allow the government to do as it pleases while abolishing the internal control mechanisms — something that generations of halakhic decisors feared and sought to thwart. So, it is incumbent upon us to reread the criticism written by Rabbi Sirkes, which he sent to a community that wanted to free itself of this halakhic requirement: “Who permitted you to enact bans for the entire public without the consent of the leading scholars?! And even though you have been chosen and sent by all the communities in the kingdom, in any case it is possible that there is almost no validity to everything you have banned.” Leaving the legal advisers in place to follow the ministries’ work and guarantee the lawfulness of their decisions, is the appropriate way for the State of Israel to be another link in the ancient tradition of Jewish law and give appropriate expression to the idea of a Jewish and democratic state.
The article was first published in the Times of Israel.