The man who would be king
by Jonathan Rosenblum
September 26, 1997
Sir Isaiah Berlin once described Tolstoy as a fox who thought he was a hedgehog. A large number of Israeli public figures are afflicted with similar confusions of identity.
Our president is supposed to be a queen giving expression to whatever national consensus still remains, but he insists on shooting off his mouth like the loudmouth on the next bar stool. Ten years ago, when such meetings were still illegal, he was advising the PLO on how to deal with Israel; today he advises the US secretary of state on how to pressure us.
Cabinet ministers act not as members of a government charged with executing its policies, but like Somali warlords whose performance will be judged solely by whether they increase their ministry's share of the budget.
All these confusions of role make us a laughingstock, but none is ultimately so dangerous to our civil society as Supreme Court President Aharon Barak's conception of himself as a 20th-century philosopher king.
Both critics and friends of Barak are unanimous about his brilliance, generosity, patience, and unaffected personal style. Yet these virtues, considerable as they may be, do not qualify him for the role of principle arbiter of the values of our society.
At a last week's swearing-in ceremony for new judges, Barak sounded a familiar theme: The determination of fundamental societal values belongs to judges no less than to the Knesset.
The basic dilemma of judicial review in democratic societies - who will protect against the judges becoming Platonic guardians - barely troubles him. For him, democracy is not primarily a process of law-making by elected officials, but a set of values to be enforced by the judiciary.
The judge, writes Barak in Judicial Review, is entitled to resolve fundamental conflicts of values within society, consonant with the view of the 'enlightened population in whose midst he dwells." In his search for the enlightened elite, the judge, Barak admits, will rarely have to look further than himself. The Barakian judge is not bound by any societal consensus. Indeed the judge 'must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it." In the basic laws
enacted in 1992, Barak found virtual carte blanche for such enrichment of our legal system according to the views of the enlightened population.
He characterized those laws, in a series of articles and speeches, as a virtual constitutional revolution, 'a powerful tool to change Israel society." In addition to the brief, and largely uncontroversial, list of enumerated rights in those laws, Barak has argued that they include a wide array of 'unenumerated rights."
THE claim that the basic laws constitute an embryonic constitution is completely unwarranted, according to former Supreme Court president Moshe Landau. Uriel Lynn, then chairman of the Knesset Law Committee and chief sponsor of the laws, specifically denied that they were intended to confer any new powers on the Supreme Court.
Nothing in the text of the Basic Law: Human Dignity and Freedom, which takes up less than a column in the statute books, proclaims it the supreme law of the land - indeed Section 10 explicitly leaves in force all previously enacted laws.
Finally, the enactment of the basic laws lacked any of the deliberation and formality associated with a constitutional revolution: Less than half the Knesset even voted on their final reading.
Barak shares with Frederick the Great more than a desire to advance his values with all the means at his disposal. For one, he does not take kindly to criticism. Attacks on his 'judicial imperialism" are inevitably portrayed as undermining one of society's fundamental institutions.
Last week, Barak again protested criticisms directed at the court, conveniently ignoring the fact that the sharpest of those attacks have come from within the legal community itself - from academia and former judicial colleagues.
Like most kings, Barak is eager to extend his hegemony and ensure his succession. Using his power to pick the panel in any case before the court, he can basically determine the result in advance. And by his domination of the process of selection of judges at all levels, he ensures the court of a steady stream of intellectual clones.
A legal lightweight like Justice Minister Tzahi Hanegbi, eager to shed his image as a partisan bully-boy, provides no counterweight to his legal betters in the selection process.
Last week, Barak again rejected calls to make the court more representative. His preference for objective criteria of legal expertise would ring less hollow had the Barak court confined itself to the technical aspects of judging - a task, by the way, for which many of its members had no prior experience.
Instead Barak has consistently thrust the court into the role of policy-maker and arbiter of values. The proposed jurisdictional reforms he backs are largely designed to remove the court from the humdrum business of appellate review, and turn it exclusively to reviewing governmental decisions.
On such divisive issues as the definition of Israel as a Jewish state, there is no basis to prefer the subjective views of 'enlightened" justices, chosen from an extremely narrow band of the legal community, to those of elected officials. (An informal quota limits the court to one religious justice out of 15, while a quarter of MKs are religious.) To the extent that such issues cannot be finessed, they should be hashed out in a forum where all segments of society have been heard.
The era of the philosopher king has passed. It should not be revived here.
Related Topics: Israeli Supreme Court
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