Our Illiberal Court
by Jonathan Rosenblum
March 4, 2008
"The Supreme Court has been widely regarded as Israel's most stalwart liberal institution since Barak took over as its president in 1996," wrote Calev Ben-David last week in these pages. Had he described the Court as Israel's most left-wing institution he would have been on safer ground (though all those academic departments in which a traditional Zionist can never gain appointment might contest the title).
One can be both left-wing and fundamentally illiberal. European human rights councils and university speech codes that would forbid quoting the Koran, in the name of protecting against Islamophobia may be left-wing. But they are not liberal.
Plato will never be listed among the philosophers of liberalism. Yet under Barak, the justices assumed the role of Platonic Guardians, or, in former Court President Moshe Landau's description, "governing elders." That task, Landau added, is one for which they had no training and showed little aptitude.
Liberal democracy based on John Locke's social contract model is predicated on the equal status of all members of society. Its fundamental principle is government by representatives of the people who stand for election at regular intervals. And it depends on commitment to process, not particular results.The power of the majority is checked by political "rights" that ensure a level playing field and offer the minority the means to become the majority – e.g., freedom of speech, thought, the press, and the right to petition one's elected representatives.
Many intellectuals on both the Right and Left chafe at sharing power with taxi drivers, and despair over the perceived inefficiencies and ill-considered decisions reached by the representatives of the unwashed masses. They have little patience for the messy democratic business of convincing others. Enlightened despotism, with themselves in the role of Frederick II, is their ideal form of government. Judge Richard Posner observes: "It is natural for them to fancy themselves the people who see clearly through the muddle . . . . They see that things could be better, they are frustrated by their powerlessness to make things better, and this attracts them . . . to political solutions that involve the imposition of order from the top down."
Rule by an unelected judiciary is one form of top down control. My classmates and I at Yale Law School, where Barak is a frequent visitor, viewed the law primarily as a means of forcing enlightened behavior on others. And Barak in his new book, The Judge in a Democracy, celebrates the trend towards the "constitutionalization of democratic politics," a movement at whose apogee he stands.
By democracy Barak does not mean majority rule, which he terms "formal democracy." Indeed his writings are permeated with suspicion of both elected branches of government, whom he views as ever likely to infringe on "human rights." The latter are the stuff of what he calls "substantive democracy." And the "constitutionalization" he celebrates is the growing power of judges around the world to protect "human rights" and "justice" from the overreaching of the elected branches.
The human rights to which he refers are not limited to those rights underpinning democratic government. They include, for instance, the "right" to easy access to stores selling pork. Those rights are universal: Barak's ideal judge is free to import "new rights" into the legal system without support of traditional legal materials, such as statutes or a constitution.
By all accounts Barak is a charming fellow. But the unreflective arrogance of his conception of the judicial role is both startling and profoundly anti-liberal. It presupposes an elite class of the wise. There is no need to wait for norms and standards to be reflected in legislation for the judge to give them effect, according to Barak. It is enough that a "common conviction" has been formed "among the enlightened members of society regarding the truth and justice of those norms" for them to be given the effect of positive law (emphasis added).
Barak is convinced of judges' unique ability to determine "justice." His recurrent invocation of "justice" as his lodestar, however, reflects no deep knowledge of great thinkers on he subject from Aristotle to Kant to Rawls and Nagel, who do not appear on the standard legal curriculum. By "justice," he means intuitions absorbed from the enlightened zeitgeist.
He would enshrine the judge's own reason as the measure of all things. Government action that lacks "reasonability," he often proclaims, is ipso facto illegal.
Yet he provides few clues, for instance, as to how the judge should derive the moral calipers to measure military judgments about how to best protect the lives of Jews – lives to which they presumably have some right -- against the rights of Palestinians. We already know some of the names of Jews murdered as a consequence of the Court overruling military judgments.
THE DEFORMATIONS OF ISRAELI LIFE caused by the ever looming presence of the Supreme Court are legion. As Evelyn Gordon points out, we have lost the British sense of shame about things "not done." If the Supreme Court fails to declare an action illegal or a politician unfit for his post, the public considers the matter closed. And Caroline Glick wonders whether the "lawyerization":of the IDF has fatally impaired our ability to defend ourselves.
Democracy, writes Jean Bethke Elshtain in Democracy on Trial, depends on "democratic dispositions." Those include: a preparedness to work with others different from oneself, a readiness to compromise in the recognition that one cannot always get what one wants; and a commitment to civic goods that are not the possession of one small group alone.
Elshtain laments the recent emergence of a "juridical" model of politics: the triumph in politics of the courtroom model in which there are accusers and accused, winners and losers – and the winner takes all -- in place of the recognition that there can be honor in the process of democratic negotiation and compromise. How much so are our social bonds frayed by an unwillingness to negotiate and compromise when the major decisions about national norms and values are explicitly made by judges self-consciously representing a cultural elite, and when political parties who do not prevail in the Knesset, circumvent it with an end-run to the Court.
Whatever one's view of the wisdom of our Court, let no one call it liberal.
This article appeared in Jerusalem Post March 4 2008
Related Topics: World Jewry
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