What does the phrase “the rule of law” mean? Does it mean that “law” is what sets the rules, or does it mean that “law” is itself made up of rules? Well, that’s a question that you have probably never thought of. I haven’t until I wrote this headline. And I’m not going to answer it. Let’s keep the phrase ambiguous.

But what is clear is that both the United States and Israel claim to be governed by the rule of law. From that, perhaps, one could conclude that the question about the meaning of the phrase should be ignored not because of the ambiguity of the word “rule”, but because the phrase overall has no meaning. Clearly, the definitions are different in these two quite different countries.

In both countries, there are ongoing debates (to put it mildly) both about the role of the Supreme Courts in determining case law, and about the selection process used to appoint Supreme Court justices. Let’s parse a few of today’s issues.

(1) How should Supreme Court justices be selected? In the United States, we take for granted that this should be a political decision. The president nominates a justice, and 51 senators must approve the selection. As presidents now tend to nominate not consensus seeking candidates (the kind that used to be approved by a unanimous Senate), but candidates who reflect their party’s thinking, it goes without saying that pre-consent hearings in the Sentate will be dominated by controversy and votes will be largely on partisan lines. This leads to a politicized court, as we all too well know. But the system itself cannot be changed without Constitutional amendment, which we know will not be happening.

In Israel, on the other hand, there is no Constitution, so presumably the system can be changed simply by legislative vote. This is what is now threatened in Israel, where the current right wing government is the most extreme government is the country’s history of extreme governments.

Although the change of the selection process in Israel is on hold for the present, the proposals would make serious changes in the selection process. Now there is a selection committee comprised of representatives of the court itself, the Israel Bar Association and various others, as well as representatives of the government. Although the government has veto power (maybe never exercised, I don’t know), it does not have selection power. The proposed change would put the government fully in charge of the selection of justices, thus politicizing the Court.

The argument for this is that the government has been elected, but that the justices have not been elected, and have not even been selected by elected officials. Thus, this fully unelected body is able to overturn laws passed by the elected government. The argument against the change is that there need to be a balance of power to make sure that extreme governments don’t do extreme things.

Israel is very polarized today, and the opponents of the change have taken to the streets in unending protests and demonstrations, all theoretically permitted under Israeli democratic law.

(2) What are the standards used by the Court to determine the validity of laws passed by the legislature?

In the United States, of course, the standard is whether or not the law is permitted under the Constitution. “Great”, you may say, “we have a standard” but of course no one really knows what the Constitution really says. What we do know is that, in the game of governmental rock, paper or scissors, the Court always wins over the Legislature or the Executive.

This is not so clear in Israel, although until today there too the other governmental officials have bowed to the decision of the Supreme Court. But there is no Constitution to serve as a guide to the Court, although there is a set of what are known in Israel as basic laws which some (but not all) define as virtually equivalent to a Constitution. But that’s another story for another day.

(3) Israel is setting itself up for a constitutional crisis. Here in the United States, we always seemed to be threatened with constitutional crises which fall by the wayside, but in Israel – where there is no constitution – a constitutional crisis (or its equivalent) seems inevitable.

This is because of the “reasonableness” legislation, passed by the relevant Knesset committee, and now on its way to the first Knesset vote. Up until now, one of the standards used by the Israeli Supreme Court in reviewing legislation, is whether the legislation passes a “reasonableness” test. The definition of “reasonableness” is less certain than the definition of “rule”.

It is likely that the law will pass. It is equally likely that the protests will continue. And here is the dilemma: if the Knesset passes a law to eliminate the Court’s use of the “reasonable test”, and if someone brings a case before the Court challenging that law’s legitimacy on the basis of the “reasonableness” test, what will the Court do? Will it strike down the law, saying it is unreasonable? Possibly. And if so…..what next?

(4) There are other standards to think about. For one thing, in the United States, as you know, Supreme Court justices have lifetime appointments. This is unique worldwide but, again, a function of our Constitution. In Israel, there are both term limits and a mandatory retirement age; this is consistent with virtually every other country in the world.

For another thing, in the United States, as you know as we have already said, the Court can overturn laws based on presumed unconstitutionality. In Israel, as you now know, laws can currently be overturned on the basis of reasonableness. But in some countries, laws of the parliament cannot be overturned at all. In the U.K., for example, there is the doctrine of parliamentary sovereignty. No court in England, Scotland, Wales or North Ireland can overturn a law passed by the parliament. In Canada, while laws of the parliament can be voided by the Court, the Canadian parliament can overturn the ruling of the Court (subject to certain limitations). In continental Europe and elsewhere, there are varying formulas governing the scope of the court’s authority. In Israel today, the governing coalition wants to limit the ability of the Supreme Court to overturn a law passed by the Knesset. This is also on hold, while the Knesset deals with “reasonableness” first.

All of this goes to show……what? That the “rule of law” is a very fragile thing. In fact, the rule of law may really be not only ambiguous, but imaginary.