Can Justice Be Blind If It is based on subjectivity? (Source: iStockphotos)

The "Reasonableness Standard" - Blind Justice Or Subjectivity?

Details
Jay Engelmayer
Explainer

As things heat up in Israel, literally and figuratively, it is important to understand why people are protesting the proposals to reform Israel’s judicial system. This week, one of the hottest meteorologically speaking, is also shaping up to be the most contentious politically as hundreds of thousands of people take to the streets during working hours to literally disrupt the country. The reason these protests and ‘days of disruption’ and ‘resistance’ are ramping up is because the Knesset is about to pass a bill that cancels a judicial standard called the “Reasonableness Standard.” So, what is this Reasonableness Standard and why do the people on the streets want to keep it and why do those in the government want to toss it? Hopefully, this explainer will help bring a better understanding to all who are reading it.

Known in other countries as the "Reasonableness Test" or "Proportionality Test," the Reasonableness Standard is a principle applied by courts in various legal systems to assess the validity of governmental actions and decisions. While its primary purpose is to strike a balance between the interests of the state and individual rights, the Reasonableness Standard has not been immune to controversy in those countries either. The difference though, is unlike most countries, Israel does not have a constitution or a clearly defined set of rules that lay out the parameters of how it is to be applied.

In the absence of a rule book, if you will, the usage of the Reasonableness Standard in Israeli law relies on British common law, which, along with some elements of laws from the now-extinct Ottoman Empire, has a significant influence on the Israeli legal system. Many will argue that it also has roots in the “principles of natural justice and the concept of proportionality,” which are seen as two essential elements of democratic governance by political philosophers. The issue here is the Reasonableness Standard is not explicitly codified in Israeli law, but it is derived from various constitutional and administrative principles, including "Basic Laws," case law, and international human rights treaties ratified by Israel. To clarify that and put it in simpler terms, Israel has no law on the books defining how Reasonableness is applied and so the judges literally pick and choose from a variety of sources, most of which are not Israeli in origin.

The “Reasonableness Standard” is primarily employed in judicial review cases, where the High Court of Justice examines the lawfulness and constitutionality of governmental decisions or actions. When faced with a case, the court evaluates whether the decision or action in question is reasonable, proportionate, and justifiable under the circumstances. It aims to strike a balance between the interests of the state and the rights and freedoms of individuals, ensuring that the government's exercise of power remains within the boundaries of law and respects fundamental human rights. On the surface, this seems, well reasonable, however, there is a major flaw in this application, it relies on the personal feelings and opinions of the specific judge who is weighing in.

The High Court of Israel typically applies a three-pronged test to assess the Reasonableness Standard in any given case: Rational Connection, Proportionality, and Least Restrictive Means.

Rational Connection: The first prong requires the court to determine whether there exists a rational connection between the objective pursued by the government and the means employed to achieve it. In other words, the court evaluates whether the decision is based on a logical and coherent reasoning process.

Proportionality: The second prong examines the proportionality of governmental action. The court assesses whether the benefits gained by the government's decision outweigh any adverse effects or infringements on individual rights. If the adverse effects outweigh the benefits, the decision may be deemed unreasonable.

Least Restrictive Means: The third prong mandates the government to demonstrate that it has used the least restrictive means to achieve its objectives. The court evaluates whether alternative, less intrusive measures could have achieved the same goal without unnecessarily infringing upon individual rights.

One of the main points of contention of those in the coalition who are trying to negate the court’s ability to use the Reasonableness Standard is that it is an inherently subjective standard. The three-pronged test requires courts to assess whether the government's decision is reasonable or proportionate based on the specific circumstances of each case; a conservative-minded judge is more likely to find a liberal law to be unreasonable and a liberal-minded judge is more likely to find a conservative law unreasonable. This subjectivity can lead to inconsistent outcomes and uncertainty in the law. What one judge might consider reasonable, another may not, resulting in a lack of predictability for both litigants and legal practitioners, and when applied to determining the legitimacy of decisions made by lawmakers, it has the appearance of being used as a political tool more than a legal one. 

The Reasonableness Standard often requires courts to balance competing interests, such as the public interest versus individual rights. This delicate balancing act can be challenging, as the court must weigh the potential benefits of a government decision against the potential harm caused to individuals or minority groups. Critics argue that this process can be subjective and influenced by the court's own biases and policy preferences, making it difficult to achieve a truly objective and impartial assessment.

Another source of controversy lies in the potential limitations the Reasonableness Standard may place on the protection of fundamental rights. When applying the standard, courts may be hesitant to intervene in government decisions, even if they infringe on individual rights, as long as the decision is deemed reasonable or proportionate. This has led to concerns that the standard may not provide robust enough protection for human rights and civil liberties, particularly in cases involving national security or emergency situations. The fairness of the use of the Reasonableness Standard is determined by which party is in power and who are the judges that are reviewing the legislation. If the judges identify with the political philosophy of the ruling coalition, they are more likely to side with the government, it is as simple as that. 

Critics of the Reasonableness Standard have also argued that it can open the door for government overreach and abuse of power. By affording a certain level of deference to government decisions, there is a risk that courts may become too deferential and unwilling to question the government's actions, even when they may be unjust or arbitrary. This could undermine the principle of checks and balances, which is crucial for maintaining a healthy and accountable democracy. It is vital here to note that Israel lacks a political system that contains checks and balances, which is why the court has been seen by many in the protest movement as crucial to ensuring that balance. The problem, however, lies in the fundamental lack of a constitution, and many see the court as overstepping its own authority in the absence of a codified mechanism to keep the government in check.

It is a simple fact that the Reasonableness Standard is not a one-size-fits-all approach, and its application can vary significantly across different legal systems and cultural contexts. What may be considered reasonable in one country may not be seen as such in another. This has led to debates over whether the standard is culturally biased or whether it adequately reflects the values and norms of diverse societies. For Israel’s courts to use it, based on rules, laws, and treaties written by other cultures and legal systems, it is seen as not representing the cultural and legal system that exists in Israel.

Protesters have claimed that the coalition's effort to toss the Standard is a power grab that will leave the government unchecked, and to some degree this is true. However, it is not concentrating power in the hands of the right, it will concentrate power in the hands of whichever government the people elect. Meaning, if Israel were to head to new elections and the left were to win, they will have the same benefits in passing legislation or making ministerial decisions as the protesters argue the current government will have. In its basics, Israel is a democracy and the people vote, and lately have voted often. If the protesters truly wanted to effect change, they would be protesting for a constitution to create the guidelines for Reasonableness and other standards to be employed.

To sum this all up, while the Reasonableness Standard does serve an essential purpose in legal practice across the globe, its controversial nature stems from several factors. The subjectivity and lack of clarity in its application can lead to inconsistent outcomes and uncertainty. Balancing competing interests may prove challenging, potentially limiting the protection of fundamental rights. Additionally, the standard's potential to enable government overreach raises concerns about the preservation of checks and balances. Finally, the cultural and contextual variations in its implementation raise questions about its universality.

In light of these controversies, legal scholars, policymakers, and practitioners should not just engage in thoughtful debates about the merits and limitations of the Reasonableness Standard. Protesters should not simply rally against efforts to limit its usage under the Israeli system, a system that lacks a clear-cut set of rules made for Israelis by Israelis. Rather, they all should be working to create and implement a constitution. The flaw in the law itself is the lack of laws. By addressing this fundamental deficiency, all parties can strive to strike a balance that ensures both governmental legitimacy and the protection of individual rights and freedoms while at the same time, eliminating the subjectiveness of the Reasonableness Standard by ensuring a clear and codified rule defining how it is to be used.

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