The court’s decisions in matters of religion and state are necessary, Krem­nitzer explains, because “freedom from religion” is an essential component of a “liberal-democratic state.” But while this assertion might arguably be true for some contemporary liberal-democratic states, such as the United States, it ignores the existence of a competing version of liberal democracy that is in fact the norm in many, if not most, Western countries. Great Britain, for instance, is the birthplace of liberal democracy, yet it saw no contradiction in giving the Anglican Church special constitutional status. Similarly, the Catholic Church has special constitutional status in Ireland—and the list of similar examples could include literally dozens of countries. Both Kremnitzer and the court take it for granted, however, that Israel, despite its highly traditional society, should follow the American model with respect to the primacy granted to “freedom from religion.” It is hard to fathom on what basis they reach this determination, given that Israel’s Knesset has explicitly legislated on the basis of the opposite view: The nation’s basic laws declare Israel to be a “Jewish and democratic” state, and the institutions that have characterized the country from its founding have assumed Israel’s Jewish character to include some expressly religious component.

Given the tests Kremnitzer himself has posited for judicial activism, one might assume he is basing his argument on the belief that a broad societal consensus exists in favor of placing new limits on the state’s Jewish character. But he is under no such illusion. “Lowered respect for the court within religious circles,” he declares, is simply “the price we must be willing to pay” for the court’s activism on such issues. For a man who claims that broad societal support is a necessary condition for judicial activism, this willingness to do without the backing of at least a fifth of the population—and probably a good deal more, when one considers that Israel’s sizable “traditional” community tends to side with the Orthodox on such issues—is rather hard to grasp. But worse, writing off the support of a particular sector of society makes a mockery of the very idea of consensus, which by definition implies an ar­rangement that is accepted not only by the majority, but by minority groups as well.

Most disturbing, however, is Kremnitzer’s apparent failure to recognize the contradiction between such statements and his own belief in the importance of “the public’s faith in the regime,” which he cites as a crucial reason for allowing judicial activism. Kremnitzer is, of course, correct that such faith is necessary for the survival of any democracy. It is precisely for this reason that he attributes such importance to decisions like the Der’i verdict: For someone under indictment to continue sitting in the government, he said, would badly undercut the public’s faith in the system. Yet if maintaining the public’s faith in the system is paramount, how can Krem­nitzer be so willing to sacrifice the faith of such a large portion of that public?

Indeed, nothing could better illustrate the dangers of Kremnitzer’s approach than the results of the 1999 elections, in which Shas raised its Knesset representation from 10 to 17 seats following a campaign that made animosity towards the judiciary a central voting issue. When faith in the court system has eroded to such a degree that one out of every seven voters is prepared to cast his ballot in large part on this issue, then the threat to democracy is far greater than anything that might result from the unpleasant spectacle of a man who has been indicted continuing to serve as a minister. Kremnitzer believes that judicial activism is the key to preserving public faith in the courts and in the rule of law. But judicial activism can also pose a grave danger to public faith in the law and in the institutions of government, and Kremnitzer consistently fails to address this problem. In so doing, he reveals just how shaky are the empirical foundations upon which his theoretical argumentation rests.

“The rule of law” has become a catch phrase in Israel, so often repeated that most people who use it rarely think about what it means. As Gavison points out, however, the term traditionally has two meanings, neither of which fits its common usage in contemporary Israel. One is that government “is authorized to do only what the law permits it to do.” The second definition is “in contradistinction to ‘the rule of men.’” The “ideal of the rule of law,” Gavison writes, “is that what determines the government’s activity is the law, not the desires of the people [in power].” The rule of law implies a system where what is legal and illegal is clearly set out in the law books and thus is known in advance; the rule of men is a system where those in power can make decisions arbitrarily, leaving the ordinary citizen with little way of knowing in advance what will be permitted and what forbidden.

But to state the case more bluntly than Gavison does, it is precisely this latter description that characterizes Israel’s Supreme Court. When a panel of three or more justices routinely decides cases based not on the written law, but rather on what they deem “reasonable” or what they consider to accord with “basic values” of their own determination, it is often very difficult to know in advance whether a given action will be ruled legal or not. Rather than strengthening the rule of law in Israel, the Supreme Court has in a very real sense replaced the rule of law with the rule of men.

The consequence of this—and Gavison deems it a very serious consequence indeed—is a sharp increase in the amount of uncertainty in Israeli life. This is particularly true in public affairs, which have been the focus of the Supreme Court’s activism. Gavison does not list examples, but they are not hard to come by. When the appointment of a government minister or ministry director general is challenged in court, for instance, decision-making on the most important issues faced by that ministry often grinds to a virtual standstill until the ruling is issued, sometimes months later. No one wants to commit the ministry to investing resources in a project likely to be halted should the court oust the man who commissioned it.

Another key element of the rule of law is an effective system of enforcement that enjoys the public’s trust and respect. On the most basic level, this entails a belief on the public’s part that decisions about whether to indict suspects are not influenced by extraneous considerations, such as political, ethnic, or religious bias. Yet here, too, Gavison points out, the court’s efforts to shore up public faith in the state prosecution may have done more harm than good.

Over the past fifteen years, the court has asserted the right to overturn the attorney general’s decision not to indict public figures suspected of wrongdoing. Thus, even when the state prosecution decided that there was little public interest in indicting a public figure, or that insufficient evidence existed, the court has often entertained petitions from ordinary citizens or public figures who disagreed, and has issued a handful of decisions requiring the prosecution to file an indictment. The goal of the court’s forays into this area is laudable: To assure the public that high-ranking officials who commit crimes will not go free due to their political clout. Yet the result, Gavison observes, has been increased pressure on the prosecution to indict in borderline cases, “even if it doubts the strength of the evidence, or the degree of public interest in prosecuting the case, since such a decision is easier to defend before the High Court of Justice.” Thus government lawyers looking over their shoulders at a possible adverse response by the High Court have a clear inducement to press charges, and no inducement to refrain from doing so.