I recently watched a hearing before the Supreme Court of Israel, sitting as a constitutional court, concerning a petition to dismiss a sitting government minister, Itamar Ben-Gvir. While the political context is local, the legal question that emerged is anything but.
Counsel for the Minister, Adv. Peter, opened with a clear and well-structured submission: the Court lacks jurisdiction. Not merely that it should refrain from intervening in this particular case, but that it has no authority, as a matter of principle, to adjudicate the issue at all. This was not only asserted, but demonstrated throughout the argument in a clear, precise and methodical manner.
He then went further. Not only, he argued, does the Court lack the authority to decide whether the Minister may be dismissed, it also lacks the authority to determine whether it has such authority. The very question of jurisdiction, he suggested, lies beyond the Court’s competence.
Justice Ofer Grosskopf responded with a precise question: does the Court at least have the authority to determine that it has no authority?
Counsel’s answer was that no normative source is required to identify the limits of jurisdiction, one can simply point to those limits “from within,” much like Ludwig Wittgenstein presented the limits of language from within language itself.
Yet this analogy is, at least prima facie, not in place.
Wittgenstein was concerned with the capacity of language to gesture towards its own limits, how, from within language, we might indicate what can and cannot be meaningfully said. This is a question of description. A court of law, however, is not engaged in describing the limits of its authority, but in determining them. Its statements are not observations, but decisions.
Put more simply, in a court of law there is no real distinction between “pointing to the limits of authority” and “exercising authority.” When a court states that it lacks jurisdiction, it is not merely identifying a pre-existing boundary, it is issuing a binding decision that brings the proceedings to an end. It is, therefore, not a descriptive statement, but a legal act.
In line with the approach of Ludwig Wittgenstein, the meaning of a statement is derived from its use. Here, the use of the statement “we lack jurisdiction” is to resolve a dispute. It follows that even such a statement necessarily constitutes an exercise of judicial authority.
This brings us to a foundational principle of legal systems, often referred to as Kompetenz-Kompetenz, every adjudicative body has the authority to determine the scope of its own jurisdiction. This is not merely incidental, but a necessary condition for the system to function at all. Even a conclusion of “no jurisdiction” is itself an exercise of that authority.
At a deeper level, however, this reveals a structural circularity.
Consider a more basic question: what is the legal source of the obligation to obey the law? It cannot simply be “because the law says so,” for that would be circular. Nor can the problem be resolved by enacting a further law requiring obedience, as that law would itself require justification. The source of authority cannot be entirely internal to the system.
This difficulty was famously articulated by Bertrand Russell in his paradox of the barber who shaves all those who do not shave themselves. If he shaves himself, he should not, if he does not, he should. The structure is self-referential: to determine whether the rule applies, one must already apply it.
So too in law. The authority to interpret the law, including the rules governing jurisdiction, rests on an interpretation of those very rules. The court determines the limits of its authority through the exercise of that authority. The circularity is not incidental, it is structural.
Law, however, does not collapse under this tension. Unlike formal logic, it accommodates it. Rather than seeking an external foundation, it establishes an internal point of decision: the court is authorised to decide, including on the question of its own authority.
This raises a broader question.
If law is understood as an institutional mechanism designed to produce order, predictability, and finality, the circularity is not only tolerable, but necessary. Someone must decide, and must also decide the scope of decision.
But if law claims a deeper normative legitimacy, if it seeks not only to decide, but to justify its authority, then the circularity becomes more troubling. It invites the question: how can authority ultimately be grounded in itself?
In that sense, the hearing was not merely about the powers of a court in a particular jurisdiction. It exposed a more fundamental inquiry: is law satisfied with the power to decide, or must it also justify the very authority by which it does so?