Long known as the paper of Northern Tel Aviv yuppydom, far more concerned with expanding the bounds of individual freedom in Israel than with the country’s glaring income gap, Ha’aretz has now taken up the cause of "social rights" with a vengeance.
On August 20th, the paper’s chief legal commentator, Professor Zev Segal, hailed a recent Supreme Court decision mandating the mainstreaming of Down Syndrome children in regular educational settings for recognizing the "right to education" as a fundamental right. The decision, he argued, serves as a salutary model for a renewed judicial activism on the part of the Court and the recognition of additional judicially created rights having no basis in Knesset legislation.
Two weeks later, columnist Avirama Golan waxed similarly enthusiastic about the Court’s ruling revoking three decisions of the Israel Lands Authority granting Kibbutzim special rights in land long leased to them by the State. The Court ruled in favor of a group of Sephardi activists, calling themselves the Rainbow Coalition, that the Israel Lands Authority had erred in granting kibbutzim a high percentage of the profits arising from the rezoning of land from agricultural to commercial uses.
In Golan’s view, the decision marked a new willingness by the Court to enter into issues of distributive justice and to recognize new "social rights." "If land must be distributed equally, why not education, housing, welfare, health, social security, and other social rights that {Court President} Barak himself mentioned in the introduction to his book Children of Reason?" she wondered.
There is reason to doubt that the Court actually went quite so far as its boosters claimed. Professor Segal specifically noted that one of the three justices in the case involving children with special educational needs grounded his decision on the Special Education Law, and not on the recognition of a fundamental right to education. Moreover, all three justices failed to subsume education under the rights included in the 1992 Basic Law on Human Dignity, and thus denied it supra-legal, constitutional status.
The doubts are even stronger in the Rainbow Coalition case. Traditional doctrines of judicial review of administrative agencies were entirely sufficient to vacate the decisions of the Israel Lands Authority, which had the effect of conferring hundreds of millions of shekels of value on kibbutzim without any indication from the Knesset that it ever intended to do such a thing.
In addition, far from recognizing the Court’s right to redistribute wealth or to alleviate by judicial fiat any differences arising from differentials in wealth, the decision was actually anti-redistributive. In effect, the Court determined that the Israel Lands Authority lacked the power to unilaterally distribute a valuable commodity belonging to the State to a particular group without explicit direction from the Knesset.
Nevertheless Segal and Golan are correct that there are indications of a growing desire on the part of the Court to enter into issues of allocation of societal wealth. Chief Justice Barak has written that the Basic Law on Human Dignity can serve as the basis for deriving "rights" to a certain level of government services and support payments. Barak was an enthusiastic advocate of a proposed Basic Law recognizing a whole basket of social rights.
IT WOULD be difficult to imagine a more dangerous idea than that the Court should become the ultimate allocating body for our national resources. Such a course would constitute nothing less than the end of Israeli democracy, with the Knesset losing both its power to determine the rate of taxation and the ability to allocate tax revenues.
The idea that courts should create and enforce particular social rights harkens back more than twenty years to a justly forgotten American legal argument that went under the slogan "equal pay for equal work." According to its advocates, the fact that certain traditionally female professions – e.g., nursing, elementary school teaching – are typically lower paying than other jobs requiring the same number of years of education constituted sex discrimination. They called upon courts to evaluate the social utility of different jobs and determine the "just" salary.
Thus courts, not the market, would have been empowered to set salaries throughout the economy. The result, as critics pointed out, would have been nothing less than then end of capitalism in favor of a centralized, planned economy. Fortunately, the doctrine never received legislative or judicial recognition, despite much support in the academic legal literature.
Courts are uniquely unsuited to carving up the budgetary pie. Because they deal with discrete cases and controversies, courts cannot evaluate an allocation for one group or purpose in the context of the entire budgetary pie. When the Court, for instance, rules that the State must provide every Down Syndrome child with a personal assistant to facilitate his mainstreaming, it is not simply deciding to provide a particular group of children with the benefit, it is also deciding to deny other children benefits.
With the money spent on a private assistant for a single Down Syndrome child, for instance, it is possible that five children with mild learning disabilities could be provided the tutoring they need to be fully functional. And if a subsequent court rules that the learning disabled children must also be provided with tutoring, it will necessarily be at the expense of the education of children without disabilities, or some other national need, whether it be health care or defense spending.
It is the Knesset, which per force must consider each budgetary allocation in the context of the total budgetary pie, that should be making the type of allocation decisions described. In a democracy, it is legislators, not judges wearing the hat of social engineers or moral philosophers, who must make these decisions.
A few weeks ago, a distraught Army Radio interviewer, in a segment on air raid shelters, asked incredulously, "Do you mean to say that Israelis might die because the government refuses to spend money on building more air raid shelters?" It seems never to have occurred to her that people die every day because the government lacks money to provide every citizen with the most advanced medical care possible or to put thousands of additional traffic cops on the road. Nor did it occur to her that more Israelis might die if the government spent hundreds of millions of dollars building air raid shelters, whose efficacy is far from clear, and as a consequence had less money to spend on Aero missile development and deployment.
Of such tragic choices is life made. But when these choices must be made for the society at large it is the Knesset, not the Court, which must do so, if democracy is to be preserved.