שני מושגים של ריסון - וסבירות

Despite its prominent status in administrative law, the meaning of reasonableness remains unclear and the concept suffers from much vagueness and indeterminacy. I argue that in order to understand reasonableness we need to focus on the concept of deference. Deference is a central concept in judicial review but it tends to be neglected in contemporary literature. I argue that we need to study deference by examining the extent to which the deferrer (i.e. the court) agrees, or disagrees, with the position of the deferree (i.e. the agency) on the merits. In this respect, I suggest a distinction between two modes of deference. The first is deference of disagreement by which the Court examines the views of the agency on the merits, and balances its disagreement with them and the content-independent (second-order) considerations that call for deference. The other mode is deference of avoidance by which the Court first examines the power of the content-independent considerations that call for deference, and only then looks to the merits of the decision, while the extent of this examination is influenced by the power of those second-order considerations. In Israeli administrative law, one can identify two models of unreasonableness. The first is unreasonableness of lack of minimal foundations. Under this model, the court interferes with an administrative decision only if it is extremely unreasonable, in the sense that it lacks minimal foundations on the face of the matter. This model was prominent in court decisions during the 1960’s and 1970’s and it fits well in the model of deference of avoidance. In the early 1980’s, however, a new model of reasonableness was introduced. Under this model, the agency is required to balance all relevant considerations, and the court will interfere if it finds that agency’s balancing to be unreasonable. I call this model balancing-unreasonableness, and argue that it fits well in the deference of disagreement model. Since its introduction, balancing unreasonableness has become the dominant model in judicial rhetoric. Nevertheless, I argue that we can often find court decisions that actually espouse the earlier model of unreasonableness, even when using balancing rhetoric. I use this conceptual framework to analyze various prominent court decisions and then offer some guidelines for choosing between the two models for different types of administrative decisions.