Judge Barak,Egalitarianism, and the Rule of Law

By Prof. Paul Eidelberg

I.  Judge Barak’s Judicial Ignorance

Although Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he seems to be profoundly ignorant of its prerequisites.

The rule of law ultimately depends on reverence for law.  Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old.  Yet judge Barak made the astonishing remark that Israel’s Basic Laws should be easily changed.  (Jerusalem Post, December 20, 1995.)  But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.  Mutable laws, basic or not, cannot possibly inspire reverence for law.

Israel’s Basic Laws are in fact quite changeable.  Dr. Ariel Bin-Nun writes:

In principle, a Basic Law [in Israel] has no greater permanence than any other law.  Basic Law provisions, unless otherwise expressly provided, can be repealed or altered by a simple majority of the Knesset, an undesirable state of affairs which allows opportunist considerations of momentary expediency to affect the very norms that should stabilize the fabric of the State in times of crisis.  The validity [or supremacy] of a Basic Law in the event of a substantive conflict between it and other Knesset decisions, is another problem, and … lack[s] a definitive answer.[i]

Such is the haphazard nature of Israel’s Basic Laws, and so little are they known or understood by the general public, that they cannot possibly foster respect for the rule of law.  

Under the rule of law, those who make the laws are obliged to obey them just as any other member of the community.  The rule of law fosters among citizens awareness of their rights and duties, their recognition of political and social norms of conduct, from which follow the mutual trust and confidence essential to cooperative endeavor.  The rule of law thus makes possible the development of national character.  Strange as it may seem, however, these obvious prerequisites of any stable and respectable community find no support in the mind of judge Aharon Barak.

To justify this provocative statement, it will first be necessary to define the rule of law in democratic terms.  Professor Harry Jaffa offers this lucid and succinct definition:

The idea of the rule of law rejects the notion that any individual or any group has sufficient wisdom and virtue to be trusted with the decision of individual cases on their own merits, without regard to general rules established by and through the authority of the whole community.[ii] 

Despite his democratic pretensions, judge Barak has repeatedly violated this democratic definition of the rule of law.  Under his presidency, the court has rendered countless decisions “without regard to general rules established by and through the authority of the whole community.”  

Before demonstrating this fact, it should be noted that until the mid-1980s, only persons directly harmed by a government decision could petition the High Court against that decision.  Since then, the law has not changed, but the court, especially under judge Barak, has created a new norm:  anyone can petition the court on any issue, and no issue is beyond its purview.  This means that the court can render decisions on any petition not only without citing any judicial precedence, and not only without reference to any laws enacted by the Knesset, but even contrary to such laws!    

Among many other decisions that may be cited, the Barak court has (1) ordered the Interior Minister to recognize homosexual adoptions performed overseas, even though Israeli law does not recognize such adoptions (Berner-Kadish v. Interior Minister, 2000); (2) declared parental spanking a criminal offense, contrary to a consensus of the Knesset (Jane Doe v. State of Israel, 2000); (3) nullified a law permitting the Film Censorship Board to ban pornographic movies by ruling that nothing can actually be declared pornography, as one man’s pornography is another man’s art (Station Film Company v. Film Censorship Board, 1997).

Underlying these decisions of the Barak court, which violate the cherished beliefs and values of most Jews in Israel, is the permissiveness and moral egalitarianism of contemporary democracy.  These decisions demonstrate that the Barak court tacitly regards all lifestyles and aesthetic values as equal, such that none should have any legal preference.  Notions of what is right and wrong, beautiful and ugly, are purely subjective or relative. Yet Barak has repeatedly said that no conflict exists between democracy and Judaism!  Is it not obvious, however, that judge Barak has been substituting his own subjective preferences for the judgment of the Knesset and, more significantly, for the time-tested teachings of the Prophets and Sages of Israel?   But this is not all. 

Few people would venture to call the Supreme Court Israel’s most subversive institution.  Yet, in 2002, in the midst of the Arafat War, the Barak court not only enjoined the demolition of buildings used to shield Arab terrorists firing at Jewish soldiers.  While suicide bombings had become an almost daily occurrence in Israel, judge Barak quashed the Attorney-General’s indictment of Arab Knesset Member Talib a-Sana who, in an interview on Abu-Dabai TV, not only praised a suicide bombing attack in Israel, but also called for more of the same.  Barak held that a-Sana could not be prosecuted (for incitement) because he was not a member of a terrorist organization!  It follows from Barak’s judicial reasoning that it would be permissible for Arab MKs to praise the Arab terrorists who murdered cabinet minister Rehavam Ze’evi!  Barak’s decision is itself an incitement to Arab terrorism.

What judge Barak deems “reasonable” is often the basis of his judicial decisions.  But surely the term “reasonable” is much too vague to be used as a rule or standard of jurisprudence.  Besides, surely legislators, who are assisted by experts in drafting laws, and who engage in debate regarding such laws—surely legislators, who are more attuned to the views and daily concerns of the public—are better qualified than judges to determine what is “reasonable” (supposing the latter to mean understandable and acceptable to most people).[iii]  And surely high-ranking military officers are more qualified than judge Barak to determine, especially during wartime, what courses of action should be taken to protect the soldiers and citizens of Israel. 

Barak’s judicial reasoning smacks of judicial arrogance.  His subjective decisions violate the rule of law, a paramount concern of any judicial body.  I dare say that the Barak court is an engine of anarchy, of contempt for the rule of law.[iv] 

II. Egalitarianism and the Rule of Law

There is another and much more profound defect in the mentality of judge Barak.  We have seen that his judicial decisions, consistent with his avowed democratic propensities, are radically egalitarian.  It so happens, however, that the democratic principle of equality implies not only equality between individuals but also between generations, which equality is obviously subversive of reverence, the precondition of the rule of law.[v] 

Is it not ironic, therefore, that Israel, from whose Torah mankind derived the notion of the rule of law, should now boast of being a democracy, whose basic principle of equality is subversive of reverence and the rule of law!  Let us probe this perhaps shocking implication. 

The rule of law requires that there be a presumption in favor of past legal arrangements.  This presumption violates the democratic principle of equality as applied to all generations.  History clearly indicates, however, that the generations of mankind are not equal, that genius flourishes in some generations and not in others, indeed, that great lawmakers are even more rare than philosophers.  How many generations have produced a Moses?  How many a Solon?  And coming down to modern times, how many generations have produced lawmakers such as the father of the American Constitution, James Madison (not to mention his colleague, Alexander Hamilton, whom Tallyrand regarded as the greatest statesman of the age)?

Whereas judge Barak would have Israel’s Basic Laws readily amendable, Madison warns in Federalist 49 that America’s most basic law, the Constitution, should be amended only on “extraordinary occasions.”  Frequent amendment, he says, would “carry an implication of some defect in the government.”  It would “deprive the government of the veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” [vi]  

For Madison, reverence for law is essential to good government.  But if equality as applied to the generations is subversive of reverence, it must in some instances be subversive of good government!  Accordingly, wise statesmen have limited the application of equality by requiring extraordinary majorities to amend a nation’s basic laws or constitution.  This is an essential precondition of the rule of law.  

A constitution such as that of the United States bears witness to a simple truth, that the living do not possess a monopoly of wisdom.  It is a vulgar conceit that violates reason and experience to think that the present, by virtue of fortuitous majorities, be it of this or that legislative or judicial body, may rightly disregard the wisdom of the past.  On the other hand, reason and experience also indicate that the past should not stifle the creative energies of the present.  Somewhere Alfred North Whitehead has said that the pure conservative is fighting against the essence of the universe—and so he is, as might also be said of the pure liberal.  The one desires permanence, the other change, while the universe requires both.  It is the same with the rule of law.[vii]

Having referred to the American Constitution, it should be emphasized that the rule of law requires that there be a fundamental law, one superior to ordinary legislation.[viii]  Obviously a fundamental law must be relatively permanent and not subject to frequent change.  All this is quite contrary to the views of judge Aharon Barak.  If Israel’s Basic Laws, as he insists, should be easily, and therefore frequently, changed, what need is there of a Supreme Court or of judges with virtually a life tenure?  After all, the primary reason why judges, generally speaking, are not made subject to popular election is precisely to secure their detachment from the shifting winds of public opinion.  The rule of law requires such detachment.

Contrary to judge Barak, Madison warned against frequent change even of ordinary legislation.  Writing in Federalist 63, he points out that “a continual change even of good measures is inconsistent with every rule of prudence.”  Not only does such change diminish reverence for law in the hearts of the people, but it also “forfeits the respect and confidence of other nations, and all the advantages of national character.”  National character is the one thing lacking in Israel, thanks to no small extent to the egalitarian jurisprudence of judge Aharon Barak.  

When all is said and done, however, it may be that judge Barak’s intellectual shallowness masks a Machiavellian lust for power. 

We have already cited a number of Supreme Court decisions which are purely arbitrary and even ultra vires.  These decisions follow quite logically from Barak’s notorious statement that “everything is justiciable.”  If everything is justiciable—if the cherished beliefs and values of the Jewish people are subject to judicial review and revision—it is reasonable to conclude that judge Barak is less interested in the rule of law than in the unfettered rule of his Supreme Court and its elitist, ultra-secular agenda.  Examination of the enormous scope of his court’s decisions—unequalled in any democratic country—reveals that for Barak the rule of law is whatever the Supreme Court says it is.  But this means that the rule of law in Israel is nothing more than the rule of men, above all, the rule of judge Aharon Barak.  Shallow pundits are content to call this “judicial activism.”  It is nothing less than judicial despotism! 

To understand the institutional foundation of this despotism, it will be necessary to examine the method of appointing Supreme Court judges.  The existing method is the most undemocratic in the free world, if only because elected officials have almost no role in the selection process.  Three members of a nine-member selection committee are sitting members of the High Court, including the court’s president, two are representatives of the Israel Bar Association, and four are members of the two leading parties, including the justice minister and a member of the Knesset Law Committee.  The judicial selection committee’s majority, therefore, is unelected.  Moreover, the two members of the Bar are subject to various forms of pressure by the president of the court before whom they may frequently appear.  For similar reasons, the justice minister can also be manipulated by the court’s president.  And since the court’s president handpicks the judges for every case, he can very much determine the selection of his own successor as well as the court’s character as a whole. 

For these reasons Israel’s High Court of Justice has been called a self-perpetuating oligarchy.  Indeed, I dare say that the court’s president, judge Aharon Barak, is the single most powerful man in Israel.  He rules a court that renders thousands of decisions a year affecting the political, social, economic, ethnic, and religious character of the State.  The term “judicial activism” trivializes the awesome but frequently hidden power of this judge.   

Although judicial activism has been evident in decisions of the American Supreme Court during the past few decades, its scope is much narrower than that manifested in Israel, if only because America’s constitutional system of checks and balances, lacking in Israel, places restraints on the court’s tendency to enlarge its power.  The American Supreme Court renders less than 200 decisions a year, a small fraction of its Israeli counterpart.  Also significant:  whereas Israel’s Supreme Court is composed almost entirely of leftists, America’s Supreme Court is split between liberals and conservatives, and the latter are not inclined to the judicial activism of judge Aharon Barak. 

Judicial activism stands in obvious tension with judicial precedent and continuity in the laws. It may therefore surprise the reader to learn that Jewish law is not based on judicial precedent, and yet no system of jurisprudence has so well preserved continuity in the laws.  Judicial precedent is respected, but as the great fourteenth-century codifier R' Yaakov ben Asher has written:

It is an error of law not to follow the earlier decision of a great scholar, only where that decision was, in your own eyes, the right decision to take; but even the greatest of scholars, and even of most ancient times, may have arrived at decisions which, for reasons of your own, you would not see fit to take:  it is then your duty to decide contrary to their decision, for there is no judge except the one in his own days; and so long as a matter is not settled in the codes, you may build and demolish as you think fit, even contrary to the precedents of the great ancients.[ix]

This should not be confused with judge Barak’s judicial activism.  Barak’s judicial decisions are not related to any established and commonly recognized body of laws such as a constitution.  As previously indicated, his decisions tend to be arbitrary or subjective, and they are clearly animated by an ultra-secular hence anti-Jewish agenda.   They also betray a strong tendency toward historical relativism, meaning a denial of any trans-historical standards of what is right or wrong, of what is decent or indecent. This is an inevitable consequence of egalitarianism, which, while rendering all generations equal in principle, does nor prevent the present generation from feeling superior in practice.

Needless to say, the Talmudic sages were not historical relativists.  Living reason, though respectful of precedent, is the ultimate arbiter in Torah jurisprudence.  Thus, “in any dispute or controversy, [you shall go] to the judge presiding in your own time; and when you make inquiry [he] will tell you the sentence of judgment” (Deut. 17:9).  Here the Torah, i.e., the Written Law, which is fixed, alludes to the Oral Law, which is flexible, and whose dedicated scholars know how to reconcile permanence and change and thus secure continuity in the laws, a precondition of Jewish national consciousness and progress.[x] 

The rule of law need not be a formula for stagnation, as the creativity of Jewish communities has shown throughout the ages.  What other people has produced so many geniuses, and despite the most deplorable conditions?   It requires no great learning, but only some detachment from the egalitarianism of the present age, to recognize this well-known fact of history.

III.  Egalitarianism and Deference

While undermining reverence and the rule of law, the democratic principle of equality also undermines deference.  No one saw this more clearly than Alexis de Tocqueville.  Ponder the following passages from his classic Democracy in America:

[In America, where equality reigns supreme] the tie that unites one generation to another is relaxed or broken; every man there readily loses all trace of the ideas of his forefathers or takes no care about them ….

As to the influence which the intellect of one man may have on that of another, it must necessarily be very limited in a country where the citizens, placed on an equal footing, are all closely seen by one another; and where, as no signs of incontestable greatness or superiority are perceived in any one of them, they are constantly brought back to their own reason as the most obvious and proximate source of truth.  It is not only confidence in this or that man which is destroyed, but the disposition to trust the authority of any man whatsoever.[xi]

In rendering all generations equal, equality renders the present generation indifferent to whatever wisdom may be found in the past.  Shimon Peres has famously said that one can learn nothing from history.  (This may explain why Mr. Peres has learned nothing from recent history, such as the disastrous Israel-PLO Agreement, which he fathered.)  Peres’s mindless rejection of history obviously precludes deference.  Much the same may be said of judge Barak.  His dictum that “everything is justiciable” recalls Descartes’ radical skepticism.  Descartes begins his philosophical speculation by doubting everything.  This may be appropriate for a philosopher, but hardly for a judge who has taken an oath to uphold the laws of the State of Israel.

De Toqcueville’s insights into the influence of equality on the intellect reveal that skeptics like judge Aharon Barak and Shimon Peres “are constantly brought back to their own reason as the most obvious and proximate source of truth.”  This is a formula for anarchy.  But there is more to be said about judge Barak.

In the president of Israel’s Supreme Court one detects a man whose education lacked the breadth and depth to liberate him from the leveling egalitarianism of this democratic age.  For the equality of which de Tocqueville speaks is not political equality so much as an equality that invades the intellect and renders all opinions equal—opinions about good and bad, right and wrong, the beautiful and the obscene.  When this relativism infects a nation’s ruling elites, the citizens of that nation eventually become dehumanized.  They will fail to feel outraged even by the wholesale murder of their fellow-citizens.[xii]

Conditioned by egalitarianism, there is no reason to look up to or revere anyone.  No wonder great leaders will seldom be found in democratic societies.  The only meaningful deference evident in any democracy is that of yeshiva students toward their rabbis.  Yet many rabbis, who obviously revere the Torah, proclaim their devotion to democracy whose egalitarianism (as well as libertarianism) is logically and existentially subversive of reverence along with deference!  

Let us remember that Winston Churchill, the greatest a scholar-statesman of the twentieth century, was a product of late nineteenth-century England, not yet a full-fledged democracy.  What made Churchill great was his reverence for ancient wisdom, that of the Jews and the Greeks.  He writes:

No other two races have set such a mark upon the world.  Each of them from angles so different has left us with the inheritance of its genius and wisdom.  No two cities have counted more with Mankind than Athens and Jerusalem.  Their messages in religion, philosophy, and art have been the main guiding light in modern faith and culture.  Personally, I have always been on the side of both.[xiii]

With these words we are very far from the leveling mentality of judge Aharon Barak.  But not only because Churchill was steeped in ancient wisdom.  While that wisdom made Churchill a profound cosmopolitan, it did not diminish his national pride as an Englishman. This, too, cannot be said of judge Aharon Barak.

IV.  Egalitarianism and Jewish National Pride

Equality as applied between generations erodes national pride.  Jewish national pride obviously requires respect for the Jewish heritage, whose foundation is the Torah and the Talmud.  Judge Barak will have none of this.  He insists that Jewish law should not be given a preferred status vis-à-vis foreign systems of jurisprudence.  Judge Barak may thus be called a “judicial internationalist.”  He writes:  “It should never be said that a particular [legal] system has the primary claim to interpretive inspiration.”  (Imagine an American judge teaching his fellow-countrymen, “It should never be said that the American legal system has the primary claim to interpretive inspiration”!)  Judge Barak, goes on to say:  “In my view, not only is there no advantage in giving priority to Jewish law, but such priority runs counter to the essential nature of the interpretive process.”[xiv]  Barak’s contempt for Jewish law on the one hand, and his freedom to resort to any foreign legal system on the other, obviously augments the arbitrary power of the Supreme Court and makes the rule of law impossible.

Judge Barak judicial internationalism is a logical consequence of his egalitarianism. We must not mistake his internationalism for cosmopolitanism.  Genuine cosmopolitanism is based on the recognition of universally valid standards regarding the True, the Good, and the Beautiful, standards which transcend the diverse beliefs and customs of nations, but which do not necessarily negate them, indeed, may even affirm them as enriching mankind.  In contrast, judge Barak’s internationalism, like the internationalism promoted by UN General Assembly, is a leveling phenomenon.  In that hodgepodge assembly, all nations, regardless of their intellectual and cultural accomplishments, are equal—except for Israel, there deemed a pariah.  “Lo it is a people that shall dwell alone, and shall not be reckoned among the nations” (Num. 23:9). 

And yet, because of the ignominious egalitarianism to which Israel has succumbed, it takes pride in being a member of an international organization that constantly degrades it!  Can this degradation be the consequence of Israel’s self-degradation to which judge Barak has so thoughtlessly contributed by his scornful attitude toward Jewish law?   Whatever the case, the one nation/one vote egalitarianism of the United Nations, which places civilized and terrorist states on the same level, corresponds to the one adult/one vote egalitarianism in Israel, which places Jews and Arabs on the same level and thereby undermines Jewish national pride.      

This egalitarianism cannot but destroy Israel as a Jewish state.  But this means that Israel’s most subtle and insidious enemy is democracy!  Few Jews have the intellectual wherewithal or courage to acknowledge democracy’s intrinsic shortcomings, let alone its pernicious influence on Judaism and the Jewish state.  After all, who can deny democracy’s blessings: its equality of opportunity that has liberated talents long suppressed by tyranny, its alleviation of poverty, its religious toleration? Here one may be reminded of Churchill’s celebrated maxim:  “Democracy is not the best form of government, but all others are worse.”  Let us apply this to the State of Israel.

Inasmuch as this state, in the absence of the rule of law, may be described as an “anarchy punctuated by oligarchy,” Israelis should heed Churchill’s maxim and transform their country into a genuine democracy![xv]  They might begin by pressing the Knesset to amend Basic Law: The Judiciary, such that Supreme Court judges will be nominated by the President of the State (aided by a professional council) and confirmed by the Knesset.

However, contrary to Churchill’s maxim, Israel’s form of government can be made superior to democracy by deriving its principles of freedom and equality from the Torah’s conception of man’s creation in the image of God.  Freedom and equality would then have the ethical and rational constraints of Jewish law.  This would foster reverence and deference as well as Jewish national pride.   It would restore the rule of law and thus put an end to the rule of judge Aharon Barak.