"Don't you have black tea? Just all these brews with the fruits?" Prof. Yoav Dotan asked the waitress at the cafe where we met. "The infusions are great," the young Sangra said, but just like in his legal thinking, Dotan prefers things as they are in their original form - authentic, accurate and without distortions.
Prof. Dotan is a lecturer and law researcher at the Hebrew University and is considered one of the most senior and leading jurists in Israel.
Unlike most of his colleagues in the industry, he is one of the leaders of the harsh academic criticism of the High Court's worldview, in what is known as "judicial activism". On Wednesday of this week he released a new book - "Judicial criticism of administrative discretion" - in which he for the first time lays out a regular legal year, Conservative in nature and critical of administrative law in Israel.
"His ideas are almost unheard of, there is a minority in the legal world who think like I do," says Dotan and names the late Ruth Gavizon ("the most important jurist of the last generation"), Daniel Friedman, Gidi Sapir, Manny Mautner and others. More than Sdottan identifies himself as a conservative He defines himself as a minimalist and a legal formalist. "The title of a conservative jurist actually unites the few jurists who criticize judicial activism, which, by the way, is also undefined.
No one knows exactly what it is, but everyone understands that it is a derogatory word."
Why are conservative jurists a minority in academia and the court?
"A convoy has been created, the convoy of the rule of law, which is colorful, beautiful and magnificent, and it is much easier to join it. It simply frees you from confrontation with other jurists, from critical thinking. It is easy to be an activist, you are always more enlightened, liberal and moral. Previously a doctoral student at the Faculty of Law who held positions My type, didn't bother to highlight them.
"Aharon Barak created a sense of a harmonious theory. Balances. Law students keep telling me 'you need to balance' and I tell them I'm sorry, you probably have the balance gene but I'm probably defective, I don't have it. I have to think about what's right and what's not."
The jurists you mentioned, who oppose judicial activism, are the old generation who came from the political left, while the new generation of conservatives come from the right, such as Aviad Bakshi, Shoki Segev and others.
"I agree. With the steps taken by the High Court, it has made itself the main subject of the political debate.
This is a serious mistake, and it did not happen by accident.
When I started criticizing the judicial system, it was perceived as criticism, but without political charge.
The legal system entered politics, therefore support or criticism is marked within a political camp.
Gideon Sa'ar is a man of Israel, but because of his attitude towards the judicial system, he is marked in the leftist camp.
"Those who express positions like Gavizon's and mine are identified as right-wing, which of course is not true. And if you have positions like mine and you don't want to be identified politically as such, you simply will not express these positions, according to which the court's pretension to enter into the tangle of economic problems, social, security, nationalism, and making order there, is problematic on a theoretical level and also not effective."
Probability - not what we knew
Dotan was born in 1959 and grew up in Shikhon Dan in Tel Aviv.
His mother was a piano teacher, which instilled in him a strong love for classical music to this day, and his father marketed machinery equipment for the extensive textile industry in Israel at that time.
Later his brother Erez turned the business into a robotics company.
Both brothers grew up in a financially affluent household, identified with the "independent liberals".
He served in senior positions in academia, including Dean of the Faculty of Law at the Hebrew University, and won many awards.
Today Dotan lives in Modi'in, is married and has three children.
As part of his opposition to activism, he also opposes the High Court's use of the reason for reasonableness in interfering with government decisions. In his book, he distinguishes between "unreasonable reasonableness" - which is intervention by the High Court in a decision plagued by extreme unreasonableness, which Dotan supports - and "balanced reasonableness" by means of which "Tz has reached his limit.
"The High Court took the accepted reasonableness of intervention when a governmental authority harms a citizen in a whimsical and absurd way, and turned it into something completely different.
Everyone should be reasonable, the government and the prime minister, but they always think they are acting reasonably.
This approach means that the government will balance, and the court will reverse engineer the government's balance.
Basically, the court becomes a second government that supervises the elected government, and in cases that do not concern individual freedoms at all.
All the petitions of the movement for the quality of government do not deal with individual freedoms, but with claims that it is appropriate to act differently from the government."
Prof. Dotan demonstrates this through the "Deri-Pinchasi Rule", a ruling in which the High Court of Justice ordered Prime Minister Yitzhak Rabin to fire Minister Aryeh Deri, because in the opinion of the judges it is not reasonable to appoint a person as a minister if an indictment has been filed against him.
"There is no equivalent to this in the world," Dotan protests, "the pretension of the court to dictate norms to the political system and replace it, not only does it not exist anywhere else, but it has no theoretical basis. It is convenient to be in the position of the fighters against corruption, and if someone criticizes them, then they are in favor of corruption or questionable. They call themselves the rule of law. In practice it is the complete opposite because the law was clear. This is the rule of the judge.
"My idea rests entirely on one sentence: relative institutional advantage. Does the court have a relative institutional advantage over others. In government decisions, which are policy decisions, it does not have a relative advantage. Anyone who supports judicial activism supports intervention in policy considerations, because they think that the political results The court's decision is better than the government's results.
"In my view, the High Court of Justice can only interfere with limited fundamental freedoms that uphold the democratic framework: freedom of speech, the right to vote, freedom of the press, occupation and equality.
The problem is that the High Court has turned everything into a right. Reasonableness should not be on government decisions when it is not about individual freedoms. There is no reason to assume that the reasonableness of the court is superior to the reasonableness of the government, but the other way around."
Constitution as it were
In several rulings in recent years, the High Court of Justice has moved towards interfering in the legislation of the Knesset's fundamental laws, and Prof. Dotan is of course opposed to this. "What is surprising here is not that the High Court intervenes in fundamental laws, but that it only recently started doing so. Aharon Barak, from now on the basic laws are a constitution. That is, from now on we will be able to invalidate ordinary laws, because there is a constitution by virtue of which we will do so. The 'small' problem is that, unlike all constitutions in the world, the ordinary legislator can change it with a two-to-one majority. As soon as you recognize the authority The High Court of Justice to invalidate laws by virtue of the constitution, also recognized the legislator's ability to change it.
"I don't like this center - but it is more democratic than the High Court." Likud conference, photo: Yossi Zeliger
"Israel does not have a constitution that was enacted by a large majority, and what kind of constitution is it that a court that rules according to it can also interfere in its establishment? As time passes, Barak's approach is revealed in its subtleties."
Dotan believes that only in extremely rare cases does the High Court have the theoretical possibility to invalidate legal provisions that go against the most basic foundations of democracy, whether there is a constitution or not.
In the Nationality Law High Court, the judges said "we have the possibility to intervene in basic laws", but tried to reassure that this is a very remote possibility and in particularly extreme cases. However, Judge George Kra, in the minority opinion, stated that the Nationality Basic Law is the extreme case. There are no rules, The intervention is already here.
"True, it's a problem, and that's why a superseding clause is necessary. Every democracy has two components, the first and central one is the principle of self-government. Through our representatives in parliament, we are allowed to determine public policy. The second is that the majority cannot do anything.
"In most methods, the court takes care of this, but then a problem arises: we gave a small group of judges who were not elected by the public the authority to invalidate the decisions of the majority. Who guarantees that they will not become a bunch of tyrants themselves? This is a tension that exists in every democracy, and the superseding clause is a possible mechanism to Reconcile this tension. Without it, we are in a serious problem because the court says it has the authority to interfere with fundamental laws, and does not set a limit for itself."
A debilitating intervention
In his book, Dotan brings up what he calls "alternative review mechanisms" about Ness.
There is no justification, he explains, to give the court excessive powers because it too is wrong, and in any case there are other mechanisms of criticism that limit or influence the government, for example, the voter's law at the ballot box or the citizen's protest.
"The Minister of Culture Miki Zohar wanted to cancel funding for cultural activities on Shabbat, and he withdrew it due to a public protest - if he had not withdrawn, a petition would have been filed within ten minutes. This is a petition on a subject that is not the business of the court. The state did not restrict individuals from consuming culture on Shabbat and it has the right to set a policy on what She budgets and what not. Individual liberties were not harmed."
We fell in love with going to court because the decision is an immediate decision. In contrast, conservatism prefers public criticism because it believes in long-term social processes.
"You are right. On top of that, a court decision looks beautiful, clean, there are respected judges with robes in the courtroom. On the other hand, politics is dirty and stinks, the image of the Likud Center, the deals. But this is a democracy. The Likud Center is more democratic than the High Court .
I don't like this center, but look at the Likud conference, this is democracy.
When a court intervenes, it weakens those alternative review mechanisms.
The conscription law, for example - jurists tend to assume that it is possible to go to the High Court so that it will provide a solution. This is an illusion and certainly in broad societal problems. The High Court cannot force ten percent of the population to change their lifestyles."
It was recently announced that discussions are taking place on the possibility of declaring Netanyahu Malkhan's impeachment as Prime Minister.
Advocate Gali Bahar-Miara clarified that no discussions took place at all, and Dan himself emphasizes that this is an unrealistic scenario: "Netanyahu's files were at the heart of the election campaign, and the majority of the public preferred him as prime minister.
"After we have already been elected, to establish shaky legal constructions of Israel, and based on this to bring about a tectonic change in Israeli politics - this is unthinkable at the doctrinal legal level. There is no source of authority for removing a prime minister to Israel, and it cannot be so. I am not one of his followers either, in the language The few, but the public chose him."
The people of absolute truth
Despite his opposition to judicial activism, last week Dotan stood on a platform in the center of the Hebrew University and called on the students to "go out and demonstrate."
"My reading surprised a lot of people," he says, "Yariv Levin's reform includes correct directions such as treatment of reasonableness, an escalation clause, and more, but what it proposes is not an escalation, it's a pretense. It's an elimination. The entire reform is sweeping and clearly unbalanced. Like Yes, I am disturbed by the government's overall attack on all the bureaucratic institutions of the executive branch and beyond. I call for a counter-demonstration. If the government drops most of the things I listed, we will sit down to discuss reducing the powers of the legal system, and it will be very clear where I stand."
The judicial system does not even accept your corrections, Gavizon's or Judge Solberg's. She leaves no room for discussion.
"True, I warned about this for years. The legal system treated with iron gloves anyone who tried to propose some kind of reform. Minister Levin says to himself and he is right - if I don't act quickly and aggressively, in the worst case I will end up like Daniel Friedman and in the worst case I will end up like Yaakov Naman. Enough of the wise. I I said - whoever makes a correction, the justice system will handle him the same way it handled all his predecessors."
Wait, stop. you surprise me
"I don't think there was a conspiracy and the stitching of cases, but that doesn't change the fact that every politician who is appointed to the Minister of Justice or to another high-ranking office - everyone is afraid of the Ombudsman who will open an investigation against them.
In other words, somehow it turned out, somehow, that all kinds of politicians came to propose reforms, or even just were appointed and perceived as a threat, and found themselves under police investigation.
Suddenly there is an affair in the newspaper, the police are investigating.
It's not just loyal, it's Ruby Rivlin, it's Kehlani, and too many such cases.
I believe in the whole heart of the prosecutor's office, but something is not working out probabilistically.
"Look at what happened to Hila Gerstel, one of the most respected judges. She was appointed the auditor of the prosecutor's office, and as soon as she showed that she took the position seriously - she was fired in the most aggressive way that is simply unbelievable. The legal system turned anyone who proposed reforms into a fascist or a criminal, and if not both of these, then They paint him as a delusional type.
"It doesn't come from a bad place for them, but a deep self-conviction. The absolute truth is on my side, so it is impossible for there to be someone else who disagrees with me and is fine or has no foreign interest. Something is wrong with him, because if he is fine then the conclusion is that maybe I am not fine. If Yoav Dotan is criticizing the legal system, he cannot be claiming in good faith a problem with the judicial activism approach. Something is wrong with Dotan."
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