The Knesset has recently amended Basic Law: The Judiciary to eliminate the ability of the courts to issue an injunction against the government or any of its ministers based on the reasonableness of their decisions. This article examines this amendment from various angles. The first section posits the amendment as part of a larger plan of the coalition to eliminate judicial review and provide the government with unlimited power. The second section emphasises that the amendment was legislated by the Knesset for itself, raising concern over a conflict of interest. This is followed by a brief explanation of the reasonableness standard in Israeli law, and an assessment of the duty to act reasonably, which stems from the democratic principle of the rule of law. The next two sections assess the many risks that the amendment creates, such as the types of decision that could be made without adhering to a standard of reasonableness, and the trimming of the power of the Attorney General as a legal ‘gatekeeper’. Special emphasis is given to the dangers that the amendment holds for the quality and diversity of the civil service. Finally, the article discusses the multiple reasons why the government should not be immune from a reasonableness check and tackles the arguments against the use of the standard of reasonableness by the courts.

This multifaceted analysis leads to the conclusion that the elimination of the reasonableness standard undermines basic features of democracy and fractures the social contract between the citizens and the government. Therefore, it should not be immune from judicial review.

Legal proportionality is one of the most important principles for adjudicating among conflicting values. However, rather little is known about the factors that play a role in the formation of proportionality judgments. This research presents the first empirical analysis in this regard, relying on a sample of 331 legal experts (lawyers and legal academics). The policy domain addressed by the experiment is the antiterrorist military practice of targeted killings, which has been the subject of a legal debate. Our experimental findings suggest that proportionality judgments are receptive to normatively relevant facts. We also find strong correlational evidence for the effect of ideological preferences on such judgments. These results are consistent for two proportionality doctrines. We suggest that proportionality judgment is anchored jointly in the experts’ policy preferences and the facts of the case. We outline the implications of the findings for the psychological and legal literature.

In recent years a new trend has appeared in decisions of the Supreme Court concerning the interpretation of criminal prohibitions. According to this trend – which will be analysed in the course of this article – a penal statute must be interpreted in the same way as every other statute, there being no rule of restrictive interpretation particular to criminal law. The interpreter must choose that interpretative option which best realizes the objective of the legislation, even when that option is based on the irregular and secondary meaning of the words. The legislative objective is often identified by the Court as the broadest possible defence of the social interest protected by the norm. It is this trend that we wish to discuss, or rather, to criticize.

The approach of my good friend Shachar illustrates the saying that uncompromising aspiration to perfection is a hindrance to progress. To me, his approach, whereby “we will only have our personal intuitions to tell us who was judged correctly, but our personal intuitions may be wrong”, is unacceptable, both in itself, and from the point of view of the conclusions to be drawn therefrom under Shachar's central thesis.

A. Ambiguity in Shachar's Thesis

But first, the thesis is not entirely clear. On page 648, he writes as follows: “… I believe that intuitive answers to complex moral questions are not necessarily arbitrary. One choice is probably better or worse than the others, yet it often cannot be rationally and conclusively demonstrated to be so”.

In the following lines, I shall attempt to expand somewhat the scope of the survey, as a supplement to Dr. Miriam Gur-Arye's excellent paper on the requirement of fault. In addition, I will refer to the principle of legality, and to legislation in the field of criminal law. I shall also indicate what I regard as the proper directions for future development, as well as point out novel and disturbing trends in the application and implementation of the law.

Although Agranat J. had the courage to advance Israeli law beyond English law, by recognizing irresistible impulse in the wake of developments in the field of psychiatry and by a non-historical interpretation of the law, contemporary Israeli case law has refrained from taking another step forward in the light of further development in that science.

A resolved to kill X and equipped himself for this purpose with a bottle containing poison. When X dined at A's house, A secretly poured some of the contents of the bottle into a drink that he offered X. X downed the drink but suffered no ill-effects since A's wife had, without his knowledge, poured away the poison and filled the bottle with water (first case).

B put his hand into Y's coat pocket in order to pick its contents. His fingers scoured the pocket and found it to be empty. Alternatively, B fired at an empty bed with intent to kill Y, who was supposed to be in it (second case).

The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commission's conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commission's central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic.

Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commission's factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commission's normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.