Court upholds Shabbat law, but for the wrong reasons

As a frequent critic of Israel's Supreme Court, I have to give them some credit for yesterday's ruling upholding the law which prohibits the employment of Jews on Shabbat. The law, dating to the 1950s, was challenged on the grounds that it violates the 1994 Basic Law: Freedom of Occupation, which protects the economic liberty of employees.

The court ruled that the Hours of Work and Rest Law meets the criteria set out for such legislation:

"We accept that the Hours of Work and Rest Law as it relates to weekly rest hours, causes injury to the freedom of occupation of employers and employees," wrote Supreme Court President Aharon Barak. "[However,] this injury does not render the law unconstitutional, because it is in keeping with the values of Israel as a Jewish and democratic state, it was legislated for a worthy reason, that is for achieving social welfare goals that are realized simultaneously with fulfilling national-religious considerations. [Furthermore,] the harm to freedom of occupation caused by the law is not excessive."

Despite the favorable outcome, the implications of this ruling remain disturbing. The court clearly sees itself empowered to decide whether a law - duly enacted by the sovereign Knesset - serves "a worthy reason", and, by extension, which social and political objectives constitute legitimate motivations for legislation. Effectively, the court has adopted a veto right over the Knesset.

The court also found support in the fact that the Bible describes Shabbat as having not only religious motives but also social welfare goals. By implication, were Shabbat only a religious observance, it would not be legitimate for the state to enact legislation imposing it.

Ultimately, though, I can't blame the court for this. Fault lies with the Knesset, which itself abdicated its legislative duties to the court. According to the Basic Law: Freedom of Occupation:

4. There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required....

Thus, the Knesset implicitly empowered the courts to determine whether a law restricting the freedom of employment befits the values of the State of Israel and is enacted for a proper purpose.

Still, the Court is not blameless either. It could have determined that language such as "enacted for a proper purpose" is so overly vague as to be meaningless. It could have ruled that whether or not a law "befits the values of the State of Israel" is rightly a decision for the people's elected representatives, not the courts. It could have concluded that, as legislation is the constitutional responsibility of the Knesset alone, the court will overturn a law only when faced with the most egregious of violations, rather than engaging in value judgments which require substituting the judges' preferences for those of the public.

For that matter, in this specific instance, the court could have avoided any discussion of values and legislative principles had it simply ruled that prohibiting Shabbat employment is not a violation of the letter of the law. "Every Israeli national or resident has the right to engage in any occupation, profession or trade," reads the Basic Law: Freedom of Occupation. Barring work on Shabbat does not restrict the right to choose one's profession, just the right to engage in it at a particular time. It is not fundamentally different from legislation which restricts the hours a business can be open.

Scorecard: The court wins a point for reaching the right outcome. It loses two points for usurping the rightful role of the Knesset in deciding which legislation is worthy of the Jewish state. But the Knesset maintains its role at the bottom of the standings by repeatedly abdicating its legislative duties to the court, and then complaining when the court acts accordingly.