Ineffective Legislature, Activist Judiciary, Paralyzed Executive: The Root Cause of Israel´s Regime Crisis

In Israel, there are Basic Laws with constitutional status. However, since they fail to comprehensively address the matters they touch upon, they remain insufficient. As a result, the political system—functioning without a written constitution—has gradually disturbed the balance between the branches of government. The weakness of the Legislative Power has led the Judiciary to fill the gap through case law. Over time, this has enabled the Judiciary to establish de facto tutelage over the Executive. The current regime crisis Israel faces is a natural outcome of this institutional imbalance.

This article was shaped through an interactive dialogue between the author and an AI-assisted thinking partner (ChatGPT), going beyond the traditional understanding of authorship. Thoughts, questions, and answers were developed collaboratively. The final text was written as a reflection of this exchange and was reviewed and edited by the author.

When Does the Judiciary Strengthen the Regime, and When Does It Undermine It?

In a democratic system, the judiciary is tasked with overseeing the executive and legislative branches. However, this oversight derives its meaning only when exercised within clearly defined boundaries and based on social legitimacy. But what if these boundaries do not exist? What if the judiciary evolves from a supervisory role into the system’s central power?

Israel has become a living laboratory for this very question. Despite the presence of Basic Laws—which carry constitutional weight but are insufficiently legislated—the country lacks a formal constitution. In this context, the judiciary—especially the Supreme Court—has, over the years, assumed a system-creating role by filling institutional voids. This body has gone beyond interpreting the law to creating law, thereby challenging the legislature’s monopoly on generating legitimacy.

The Israeli Case: Advisor or Commissar?

The most striking manifestation of this constitutional vacuum appears in the position of the Legal Advisor to the Government. Though not clearly defined by law, this role has, through judicial rulings, gradually accumulated the powers of the Attorney General, Legal Counsel, and Supervisory Authority.

Formed through precedent and convention, this position has generated one of the central crises in Israeli politics in recent years. For instance, since 2022, Legal Advisor Gali Baharav-Miara has routinely intervened in the policies and appointments of the new government, delaying or even blocking decisions. This conduct indicates that a position defined as legal counsel has effectively transformed into an authority exercising tutelage over an elected government.

This raises a critical question: To what extent is it legally justifiable for a democratically elected government to submit to a legal advisor whose legitimacy stems not from the ballot box but from Case or Precedent Based Law?

Boundaries of Legitimacy: Passive Counsel or Usurpation of Power?

According to the principle of the rule of law, the Executive must act within legal bounds. From this standpoint, having a legal advisor to review government decisions makes sense. However, if this advisor gains the power to rule on or even block executive decisions, then the principle of the rule of law itself begins to erode. At this point, the executive no longer merely adheres to the law but becomes dependent on the judgment of a single person or institution interpreting that law. Legal oversight replaces political authority. This amounts to a system where decisions made by elected representatives are subject to validation by an unelected bureaucrat. This is the point where legitimacy breaks down.

In Israel’s case, the Legal Advisor—though nominally a bureaucrat—is effectively the Supreme Court’s commissioner within the government, fully supported by a judiciary that still remains under the sway of the former political elites.

A recent incident pushed this crisis to a boiling point: the government’s dismissal of the head of internal security was frozen by the legal advisor, who demanded an explanation. However, the appointment and dismissal of that official are explicitly regulated by law and fall squarely within the government’s authority. The matter has now reached the Supreme Court. Should the court endorse the advisor’s stance, it will have once again overridden legislation passed by the Knesset and paralyzed the executive branch.

Who Oversees the Judiciary?

The core paradox in Israel is this: there is no mechanism to oversee the overseers. Although the Legal Advisor to the Government is appointed by the executive, it cannot be dismissed. This dysfunction becomes even more problematic when governments change but the advisor—likely appointed by the opposition and potentially politicized—remains in office. Moreover, the instance of the Legal Advisor to the Government has not yet been defined by law. The judiciary, meanwhile, has endowed it with constitutional powers, making it practically untouchable.

This raises a more general question: Who watches the watchdog?

When the judiciary intervenes beyond its mandate—such as halting political appointments—it ceases to be a supervisory body and becomes a governing one. This shift disrupts the democratic balance of power. An unelected shadow authority begins to dominate over the people’s elected representatives.

As early as 1999, legal scholar Hillel Neuer had already labelled Israel’s Supreme Court an “Imperial Judiciary”, warning that judicial power could overshadow democratic legitimacy.

A Way Out: The Supremacy of Law Must Be Above the Judiciary

The solution to this legitimacy crisis is not to weaken the judiciary, but to redefine it within legitimate limits. The following steps could be taken:

• The duties, powers, and responsibilities of the Legal Advisor to the Government should be clearly defined in law, and it should be acknowledged that governments have the right to work with advisors of their choosing.
• This advisory role should be separated from the de facto position of the Attorney General, and its authority should not evolve into a veto mechanism over political decisions.
• Judicial decisions based on precedent should be explicit and limited; the courts must not be allowed to establish permanent oversight over the executive through interpretation.
• The prestige of the judiciary increases through accountability and restraint—not through political influence.

In Conclusion: Overshadowed Legitimacy

The judiciary supervises political power in the name of the law. However, when it begins shaping politics in the name of the law, it becomes a rival to the executive and creates a dual-headed system. The current situation in Israel is a dangerous example of this transformation. A judiciary empowered by precedent and convention but unaccountable does not foster trust in democracy—on the contrary, it breeds distrust.

Therefore, the unresolved question remains as relevant as ever: Who will oversee the judiciary?

An optimistic answer might be: The judiciary’s own virtue of self-restraint could be the true safeguard of the system.

Selected Books and Articles Discussed in this Article:

• Barak, Aharon. The Judge in a Democracy. Princeton University Press, 2006.
• Fuller, Lon L. The Morality of Law. Yale University Press, 1964.
• Hirschl, Ran. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Harvard University Press, 2004.
• Neuer, Hillel. “Israel’s Imperial Judiciary.” National Post, 1999.
• Şen, Murat. “Yargı Aktivizmi ve Demokrasi.” (Judicial Activism and Democracy) Anayasa Hukuku Dergisi, 2019.
• Zamir, Itzhak. “The Legal Advisor to the Government: Authority, Role, and Responsibility.” Israel Law Review, Vol. 30, No. 1–2 (1996).

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