What is this curious “override clause” that Israeli Prime Minister Benjamin Netanyahu’s new government is trying so hard to legislate, and liberal Israelis are trying equally hard to prevent? In essence, it means that the Knesset, with a simple majority vote of 61 to 59, can cancel or “override” a ruling of the Israeli Supreme Court; for example, it can reenact a law struck down as unconstitutional by the court. Those who support the override clause say it is important to give primary power to the popularly elected government and not to the elitist justices, who were chosen by a committee and not elected by the people. Those who oppose the override clause agree with Ahad Ha’am that what makes us Jews is our commitment to the biblical commandment, “Justice, justice thou shalt pursue” (Deuteronomy 16:20).
But was there ever such a thing as the override clause among the medieval Jewish philosophers? Whenever this question is asked, the immediate answer is “No, of course not!” Medieval Jewish philosophers loved controversy and disagreed about every subject under the sun, except for one—the primacy of the judges over the sovereigns. Nonetheless, there was one medieval Jewish philosopher who thought in constitutional terms strikingly similar to those of de Tocqueville. He wrote at length about the relative powers of the judges (the judicial branch) and the kings (the executive branch). He did hold a sort of override clause. I am thinking of Rabbi Nissim ben Reuben of Girona (d. 1376), known by acronym as RaN, a preeminent Talmudic scholar and the most important Jewish political philosopher between Maimonides in the 12th century and Don Isaac Abrabanel in the generation of the Spanish expulsion.
Rabbi Nissim argues in his “Homily on Justice” (Derashot, ch. 11) that the vocation of the judges is to judge in accordance with “righteous judgment” (Deuteronomy 16:18), while that of the kings is to preserve national security. He then pushes this distinction in a radical way that was unprecedented in the history of legal philosophy. The judges, he insists, possess the authority to judge only with righteous judgment; that is, they have no authority whatsoever to judge according to utilitarian or consequentialist considerations. They must judge according to the good in itself and the just in itself. Their considerations, in the language of the philosophers, must always be deontological. The kings, however, who are charged with the preservation of national security, do possess the authority to act according to utilitarian or consequentialist considerations.
Rabbi Nissim writes that when there is a grave threat to national security, the king has the authority to overturn or “override” the ruling of the judges. He gives as an example a dangerous murderer whom the judges cannot convict owing to procedural concerns (for example, there were not two witnesses). Rabbi Nissim explains that the judges rightly cannot execute him since “righteous judgment” requires strict observance of evidence law. However, the king has the authority to “override” their decision, and to sentence the murderer to death in order to preserve national security (cf. Maimonides, Laws of Kings 3:10). In times of dire emergency, the king invokes the “override clause.”
Rabbi Nissim’s discussions of the relative powers of judges and kings usually concerned the Jewish Sanhedrin and the Israelite kings, but also sometimes concerned gentile judges and kings. His sharp distinction between the roles of the judges and kings reflects his own philosophy of law and is prescriptive rather than descriptive. Historically, no polity, Jewish or non-Jewish, has ever adopted Rabbi Nissim’s approach. No historian corroborates his claim that the Sanhedrin was authorized to rule only according to deontological considerations.
Quite obviously, Rabbi Nissim’s “override clause” is very different from the one proposed by Israel’s government today. According to Rabbi Nissim, the king does not cancel or reenact any law, but merely overturns one particular decision of the judges in response to extraordinary circumstances at a given time (kefi tsorekh ha-shaʿah). Moreover, the king, according to Rabbi Nissim, does not say that he is acting in the name of true justice. On the contrary, he fully admits that in sentencing the murderer to death he is blatantly contradicting “righteous judgment,” but justifies his action by citing the urgent need to preserve national security.
If we were to accept today Rabbi Nissim’s “override clause,” the Israeli government or the Knesset would not have to cancel or reenact any laws, but they would merely suspend a law “temporarily” (kefi tsorekh ha-shaʿah). For example, they could say that according to the law an individual who has been convicted of crimes, like MK Aryeh Deri, cannot serve as a minister in the government, and that’s true “righteous judgment,” but because of the present emergency (e.g., the Iranian threat) we hereby suspend the law and appoint him minister.
In this scenario, the Israeli Supreme Court is analogous to the Sanhedrin (the judicial branch) and the government and the Knesset are analogous to the king (the executive branch). It is true, of course, that the Knesset formally represents the legislative branch, not the executive one. However, due to constraints of party loyalty and coalition agreements, it has for many years functioned largely as an arm of the executive. The current dispute in Israel concerning the proposed override clause is thus ultimately one about the relative powers of the executive and judicial branches.
One can argue whether Rabbi Nissim’s “override clause” is more or less “democratic” than that proposed by the current Israeli government. However, it definitely grants more respect to the judges and to the laws. Moreover, it vouchsafes to the judges—and not to the kings—the exclusive responsibility to determine what is “righteous judgment.”
In their preference for the judges over the sovereigns, Rabbi Nissim and the other medieval Jewish philosophers differed from Plato and from most medieval Christian and Muslim philosophers, but they were in agreement with Aristotle, who wrote: “One who asks for the rule of the law is as one who asks for the rule of God and reason alone, but one who asks for the rule of a human being adds the beast” (Politics, III, 16, 1287a).
Rabbi Nissim emphasizes that the king has the authority to make use of the “override clause” only in rare situations and only as a “temporary measure” (kefi tsorekh ha-shaʿah). The great sin of the Israelites during the days of the Prophet Samuel, according to Rabbi Nissim, was not that they demanded a king, for Scripture explicitly recognizes the institution of monarchy (Deuteronomy 17:15), but their sin was that they demanded “a king to judge us like all the nations” (I Samuel 8:5). Rabbi Nissim explains: “They wanted the main principle of judgment [ʿikkar ha-mishpat] … to be that of the king,” not that of the judges. The desire to prefer the executive branch over the judicial branch seems to Rabbi Nissim to be fundamentally un-Jewish, that is, it seems to him to be the desire to be “like all the nations.”
One can imagine the heated debates that arose during the days of the Prophet Samuel. The liberals surely warned against the excessive power of the executive branch: “The king … will take your sons … for his chariots … and your daughters to be perfumers, cooks, and bakers … He will take your fields … and ye shall be his servants” (I Samuel 8:11-17). And the royalists, who were the majority, would doubtless have responded: “Stop your hysterical and unpatriotic blather! We want a king like all the other nations!” (ibid., verses 19-20). I can even imagine a young liberal Israelite approaching the old Prophet Samuel and asking him in anguish: “O Prophet, after we set a king over us, will we still be a Jewish state?”
Who knows how the Prophet Samuel would have responded? Perhaps he would have said: “No, we can’t be a Jewish state if we reject God” (ibid., verses 7-8). But perhaps he would prophesy about the future and say: “Yes, we will have proud Jewish monarchs like Kings David and Solomon.”
Warren Zev Harvey is Professor Emeritus in the Department of Jewish Thought at the Hebrew University of Jerusalem where he has taught since 1977.
