“Israel has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere. The sad irony is that the Supreme Court, operating with a Basic Law that specifies Israel’s values are both Jewish and democratic, is gradually producing an Israel that is neither Jewish nor democratic”.
ROBERT H. BORK, wrote his book “COERCING VIRTUE”, about THE WORLDWIDE RULE OF JUDGES. giving us more knowledge how Israel turn from Democratic state into Judicial dictatorship.
“Given its addiction to universal values, moreover, the decisions emerging from the Israel Supreme Court will likely continue to neutralize the Jewish aspects of the Basic Law, while causing ever-greater alienation of those “unenlightened” segments of the population who hold such values dear. The more such cases are adjudicated by a Barak-inspired court, the less Jewish Israel is likely to become and the harder it will be to distinguish it from secular democracies such as Canada and the United States.”
“An independent judiciary, it was argued, was fundamental to the existence of the rule of law and the preservation of a democratic regime in Israel. That was particularly odd because there is no rule of law when judges’ personal sentiments rule and when the court, far from preserving the democratic regime, is undercutting it. ”
“Even Prime Minister Netanyahu decried what he called unrestrained attacks on the court and its justices. The American Bar Association’s attacks on critics of activist American courts pale by comparison with the fury unleashed in Israel.”
Those who still dream that Israel is a democracy are invited to wake up call and to read this chapter how Israel has been occupied by a few Judges and traitors.
these quate and more are in a book born just before less than 20 years (2003). Every single Judge knew that Israel is under Judicial dictatorship state, takes your time and read this chapter (4) It might save your life. (Editorial comment). We think any extra word is totally unnecessarily.
https://en.wikipedia.org/wiki/Robert_Bork
ROBERT H. BORK, COERCING VIRTUE. THE WORLDWIDE RULE OF JUDGES
Chapter 4
ISRAEL
The autonomy of the individual ….exists because it is recognized by the law.
The moment that a certain realm is not justiciable, the wielder of power does whatever he wants.
[The judge] must sometimes depart the confines of his legal system and channel into the fundamental values not yet found in it.
The world is filled with law.
Justice Aharon Barak, President of the Supreme Court of Israel 1
Pride of place in the international judicial deformation of democratic government goes not to the United States, nor to Canada, but to the State of Israel. The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court in the world has achieved 2
Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. Imagine as well a supreme court that has created a body of constitutional law despite the absence of an actual constitution. No act of imagination is required: Israel’s Supreme Court has done them all.
It was not always so. Though Israel has been a highly politicized nation from its formation, the Supreme Court, in order to establish its legitimacy, according to Martin Edelman, once wrote opinions that were “characterized by highly formalistic legal style, narrow interpretations of statutes and precedents, adherence to stare decisis, and deference to the decisions of the political branches (the Knesset and the Government” 3 Gradually, however, the court began to assert its authority according to the principles of “natural justice” -an amorphous concept designed to cut the court loose from the restraints of positive law. But the subjectivity was too obvious. Searching for something that could be designated a mandate for overriding judicial power, the Supreme Court began to claim that its supremacy had been legitimized in 1992 by the passage of two laws-the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty. The first of these laws forbids restrictions on the right to practice any vocation. The second, which is more important for our purposes, prohibits infringements on a person’s dignity, life, body, or property. Each Basic Law contains an exception clause: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”. An earlier clause in both laws describes Israel’s values as those of a “Jewish and democratic state”. 4 These words seem at least marginally more confining than “natural justice”, but in practice, they have liberated rather than constrained the court.
These Basic Laws provide an inadequate platform for a court intent on invalidating legislative action. For one thing, the Basic Laws are even more general and undefined than major provisions in the United States Bill of Rights and the Canadian Charter of Rights and Freedoms. The American amendments and the Canadian Charter were, at least, written, proposed, and ratified as constitutions. By contrast, it is not at all clear that Israel’s Basic Laws were designed to be more than precatory. The Basic Laws were enacted by the Knesset in the middle I the night without even a majority of the 120 members present. The law dealing with liberty and dignity passed by 32 to 21 votes; that dealing with freedom of occupation by 23 to 0. There was no discussion in the Knesset indicating any recognition that a constitution was being adopted. Certainly, there was no understanding that the Supreme Court was to be the final arbiter of what the Basic Laws meant. Yet that is how the court has chosen to read them.
The extraordinary events that followed cannot be understood without reference to one man, Aharon Barak. From the beginning of his tenure on the Supreme Court in 1978 to his assumption of the court’s presidency in 1995 to the present day, Barak has been the dominant figure in Israeli law and, increasingly, a major force in shaping the nation’s policies. He is without significant opposition within the court. So broadly has he spread the court’s powers that it is no exaggeration to say, along with Hillel Neuer, that “Barak may well be the single most influential person in Israeli public life today”.5 Barak’s philosophy, now apparently shared by the court, is that there is no area of Israeli life that the court may not govern. This radical position follows from two extraordinary legal doctrines also adopted by the Canadian Supreme Court, whose Charter jurisprudence has greatly influenced the Israeli court. But these doctrines appear to have led in Israel to an even more extreme body of decisions than Canada’s, or any other nation’s for that matter: First, all behavior, governmental or personal, is examinable and may be controlled by the court; and, second, individuals may raise any issues they choose for consideration by the court. These are not dusty technicalities, but revolutionary changes in the court’s role in government and, hence, in the distribution of power within Israel.
The first doctrine holds that since law covers everything, even those areas on which the law is silent, freedom from law is a legal issue reviewable by the court. Since nothing escapes the legal maw, Israel may not allow freedoms of which its court disapproves. “Constitutional law” about private behavior, therefore, may be devised without the benefit of a constitution. By contrast, in the United States there must be action by government, usually in the form of a legal command, to trigger constitutional scrutiny.
The second doctrine concerns standing, the traditional principle that parties may address a court only if they allege injuries to themselves that the court has authority to redress. A mere personal or ideological disagreement with government is not enough. President Barak and his court have done away with that limitation on their power. Anybody who thinks the government is misbehaving in some respect can litigate, even if the alleged misbehavior affects him not at all. Thus, a citizen with a private grievance against a Cabinet appointee can litigate the worthiness of the person on grounds having nothing to do with any specific injury to the complainant. It is as though an American citizen, unharmed by an action of the Federal Reserve Board, could go to the Supreme Court to litigate the wisdom of an interest rate hike.
The doctrine of justiciability, the first on the list, requires that issues to be litigated must be fit for courts to decide. Barak has reshaped the law so that practically any subject, no matter how political, may be decided by the court. The issue may be legal, or it may simply be one that the court considers in the public interest. Virtually every subject, then, is justiciable Barak sees two categories of justiciability-one normative and the other institutional-though he and the court have little use for any restriction that might arise from such categorization. Normative justiciability raises the question whether legal criteria exist that a court can apply in the case proffered to it. If there are no such criteria, the matter is not one for judicial resolution. Institutional justiciability raises the question whether the subject matter is appropriate for judicial decision or whether some other branch of government may more properly decide the issue.
Normative nonjusticiability is inconceivable in Barak’s world view because no legal void can exist: law covers everything. Legal criteria which mean no more than the court’s willingness to decide-always exist. Even an activity bearing the greatest political character, such as the making of war or ace, is examinable by judicial criteria. The decision whether to intervene or not, however, lies entirely within the court’s discretion. Institutional justiciability is similarly toothless because, should the court say that an issue is committed to another branch of government and inappropriate for judicial intervention, the court essentially grants the government freedom to behave illegally. That is not to be tolerated. The court, of course, cannot behave illegally, since it is the law.
The extremes to which Barak’s judicial philosophy can carry him are shown by his statement that the deployment of troops in wartime is a justiciable issue. Barak recognizes, however, that the public may not want the court deciding certain issues. In highly political cases, therefore, such as that involving the Oslo peace process, Barak and the majority of the court chose to limit universal justiciability and not to intervene directly. A second exception to universal justiciability arises in cases where justice may not seem to be done, but court action itself would undermine public confidence in the judiciary. These exceptions clearly overlap, if they are not identical in both instances, however, the court’s power is not rated by principle, but only by fear of adverse public reaction. This justification denotes concern for the prestige of the court, not for the integrity de law or the vitality of democracy.
A comparison with the activist American Supreme Court demonstrates how far the Israeli Supreme Court has gone. The U.S. Count does not hold that law is everywhere. With the sole exception of the Thirteenth Amendment, which bans involuntary servitude (any conditional approach in that of slavery), the US. Constitution applies only to action taken by the state, not to its inaction. Although the Court has strained to find state action in cases of racial discrimination, it remains true that most private behavior is beyond the reach of the Court’s constitutional power and man be regulated, if at all, according to laws made by elected representatives in the legislatures.
In the United States, the doctrine of standing, has, as its constitutional core, the requirement that the plaintiff must have suffered an “injury in fact” -an invasion of a legally protected interest that is concrete, particularized, and either actual or imminent. It cannot be merely conjectural or hypothetical. An American federal court could not, for example, entertain a citizen’s lawsuit complaining that a Cabinet member was not fit for her position. The Court has held that taxpayers and citizens lacked standing to sue on the claim that the Constitution required the CIA budget to be published, or that members of Congress are constitutionally disqualified from holding reserve commissions in the armed forces. By comparison, when members of a citizens’ rights movement challenged the Israeli justice minister’s refusal to extradite a person wanted for murder abroad, the majority of the court asserted a new standard by holding that the petition could be reviewed by the court. The justices said that, because it was a matter of genuine public concern and no one else in the country had a more direct interest in the case, the court would hear the petition.
The Israeli court’s power is further magnified by the ability of litigants complaining about the government to proceed directly to the Supreme Court, rather than reaching that tribunal after trial and appeal in lower courts. U.S. law about justiciability derives from the separation of the powers of the three branches of government. A court will stay its hand according to Baker v Carr, for several reasons: a textually demonstrable constitutional commitment of the issue to another branch of government, a lack of judicially discoverable and manageable standards for resolving a dispute; an inability to decide without a determination of policy that is clearly of nonjudicial discretion, an inability for the court to decide the case without expressing a lack of respect due to coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made, or the potential for embarrassment from multifarious pronouncements by various departments on one question. 6
The American Court applies these concepts of state action, standing. and justiciability to confine its own power. These self-limiting doctrines are, of course, more complex than a brief statement can indicate, but the nub of the matter is clear: These boundaries on judicial power assist in preserving legislative power and democratic authority.
In addition to this astonishing array of judicial powers, the selection process for the Israeli court’s justices, established in 1953, ensures, as Mordechai Haller said, that “in Israel, the judiciary selects itself”.7 The choice of a justice is made by a committee composed of the president of the Supreme Court, two other justices chosen by that court, the justice minister, another minister appointed by the government, two members of the Knesset, and two members of the Israeli Bar Association. That makeup, according to Haller, ensures that the influence of the justices is “nearly absolute” 8 and “it is almost unheard of that a nominee to the high councils would be either approved or rejected over the objections of the justices on the committee”.9 Quite naturally, the justices prefer candidates with views similar to their own. The result is a court without serious internal dissension or debate, a court that agrees with and is led by Aharon Barak.
The activist decisions of the Supreme Court of Israel fall into two categories. The first comprises interventions in the internal operations of the other branches of government. These decisions have been extraordinarily intrusive, perhaps reflecting the belief that the Knesset and the executive are not trustworthy. The second includes rulings on human rights. These decisions display a willingness to substitute the court’s own extremely liberal New Class values for the moral and prudent choices made by democratic institutions. The court’s values implement a socialist impulse in cultural and social affairs: They are universalistic in scope and, to the exclusion of competing values, stress such concerns as the dignity, freedom, and equality of individuals. As rhetoric, those words are highly persuasive; as operational concepts, they have often proved highly deleterious.
Interference with the Workings of Government
The court’s activism became undisguised imperialism when, in a bold and unprecedented stroke, it revolutionized the internal structure of government and the distribution of governmental power — by anointing the attorney general as the supreme authority within the executive branch. In the 1993 Pinhasi case (Amitai-Citizens for Good Government and Integrity x The Prime Minister of Israel), the issue was whether Deputy Religious Affairs Minister Raphael Pinhasi had to resign when he was indicted for tax and party-funding violations 10. Prime Minister Yitzhak Rabin would not fire Pinhasi because that would endanger the thin parliamentary majority in favor of the Oslo accords. The attorney general, who had sole authority to represent the government in litigation, announced that he would not defend Rabin’s decision. The court went beyond the legal merits of the case to announce that the government (though not the court) was bound by the attorney general’s decision-effectively converting that officer into a judge dominating the executive branch from within.
Perhaps not surprisingly, jurists proclaimed the court’s decision a victory for the rule of law. It is difficult to understand, however, why making a subordinate government official the arbiter of the government’s actions, responsible only to his own sense of discretion, is not the antithesis of the rule of law. The government may have quite respectable legal arguments opposed to the attorney general’s view, but those views cannot be heard by the court. Still worse, an attorney general’s decision is effectively final even when it is not based in law but is a conclusion about policy. “In Israel, with the world’s most liberal rules of standing and justiciability,” Jonathan Rosenblum noted, “the only party that cannot get a ruling on the legality of governmental action is the government itself, if the Attorney General refuses to defend the government’s position”. 11
Pinhasi was the culmination of a series of aggrandizements by which successive attorneys general expanded the powers of the office. Foremost among them was none other than Aharon Barak, who later wrote the Pinhasi opinion when he was on the court. His prosecution of numerous powerful figures in the Labor Party, including the wife of the prime minister, “did much to cultivate the idea that only a truly independent attorney general, free of any political concerns, could effectively combat corruption in high office, “according to Evelyn Gordon. 12 In the process, however, independent Israeli attorneys general have committed a series of outrages, or what other democracies would consider outrages. 13
Attorneys general have, for example, objected to independent telecommunications and postal authorities, not on legal, but on economic grounds; conducted a vitriolic campaign against a new Knesset faction and its leader; and judged the propriety of political compromises essential to the formation of coalition governments not on the ground that they were illegal, but merely because, in the opinion of the attorney general, the compromises were “inappropriate.” A man was denied the position of minister of public security because the attorney general said an indictment for violation of privacy disqualified the applicant from holding any position with access to sensitive personal information. The indictment ignored the fact that he already had access to all classified documents as a member of the special “security cabinet.” He was acquitted, but too late to reverse his disqualification. As Evelyn Gordon justly said: “With the alacrity of a seasoned despot, [the attorney general] managed to take his own, wholly unlegislated notions of political propriety, translate them into a legal presumption of guilt without trial, and impose them on the composition of government without having to convince anyone he was right-handing a major setback to the innocent [man] and the tens of thousands of voters who had found voice in his party”. 14
The full extent of the abuse to which the powers of the attorney general lend themselves was disclosed when Prime Minister Benjamin Netanyahu named Ya’akov Ne’eman as justice minister. A petitioner hostile to Ne’eman accused him of a number of crimes, most of which had already been investigated and found baseless. Though Ne’eman was initially investigated on a charge of suborning a witness, the prosecution found insufficient evidence to bring a case. But simultaneously with its announcement that there would be no indictment for subornation, the prosecution announced that suspicion remained and that Ne’eman would be indicted instead of perjury and obstruction of justice for his conduct during the subornation investigation. The evidence for that charge consisted of trivial mistakes about such things as dates in his affidavit, anomalies he discovered himself and corrected. Some months later Ne’eman was acquitted in court, but he had already resigned because of the attorney general’s charges. As Gordon remarks, “The mind-boggling assertion that the role of the nation’s top law enforcement officials includes besmirching public officials whom they fail to indict-an assumption that met with virtually no public opposition-speaks volumes not only about the tendentiousness of [the law enforcement officials] but also about a poisonous admixture of the legal and moral responsibilities that the public has come to expect in the attorney-general”. 15 Similarly, when the attorney general found there was not enough evidence to indict either Prime Minister Netanyahu or Justice Minister Tzahi Hanegbi, he issued a report that there was nevertheless “real suspicion” that Netanyahu was, in fact, guilty 16.
The powers the court has lodged in the attorney general can hardly be overestimated. The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon arose from Attorney General Elyakim Rubinstein’s ruling that Sharon could not use his son, Omri, as an emissary to Yasser Arafat 17. Although Omri was not to be paid, Rubenstein said it was nepotistic, not in accord with the norms of good government, and therefore impermissible. He qualified that by saying Omri could be used if it were really a “life-or-death” situation. Ignoring the ruling, Sharon continued to use Omri, saying that all such missions are potentially matters of life or death for Israel. The Movement for Quality Government went to court, arguing that Sharon was breaking the law by violating Rubinstein’s directive. After a few hearings, Sharon surrendered and told the court that, although he thought Rubenstein wrong in principle, he would not use Omri without Rubenstein’s permission. Rubinstein replied that if he received such a request, he would consult with various security and defense officials before giving or denying consent. The unelected attorney general, rather than the elected prime minister, now decides when a life or death situation exists and when it does not.
The prime minister was further hamstrung when the court, in denying a new government the power to replace the civil service commissioner, announced a rationale that, at the very least, strongly suggests that no attorney general may be dismissed at any time, even by a new government. Even the government’s authority to choose an attorney general when the post becomes vacant may be put in question. Bills were drawn up by both the Netanyahu and Barak governments that required the government to submit its proposed candidates for attorney general to a five member committee. The committee could also propose its own candidates. The committee’s choice would be referred to the Cabinet, which could approve or reject the nominee. The committee, headed by a retired Supreme Court justice, would be composed, additionally, of a former justice minister or attorney general appointed by the Cabinet, a member of the Knesset chosen by the Knesset Constitution Committee, an attorney chosen by the Bar Association, and an academic chosen by the deans of Israel’s law schools. The committee could reject any candidate it considered “improper,” a term that meant having personal or political ties to someone in the government. That process severely undercuts the government’s ability to choose someone known to be sympathetic to its agenda. Owing to changes in the Knesset, these bills were never enacted. They reflect, however, the widespread opinion, perhaps influenced by the Supreme Court’s decisions, that the attorney general should play a role independent of, and even contradictory to, the elected government policies.
Even without these proposals, as Gordon makes plain, “the reality is grim enough. The government is now saddled with a senior official who has the legal authority to veto virtually any government action or policy, against whom it has no means of appeal, and of whom it can rid itself only with the utmost difficulty, if at all, and with an outside committee which has the power to veto any candidate who would be too likely to use his power in line with the government’s wishes”. 18 It is extraordinary that the Israeli public should accept the idea of an attorney general capable of hamstringing the executive branch that the public votes into office. There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them. “Replacing the normal methods of democratic oversight with the oversight of a single, all powerful unelected official, “Gordon concludes,” is not entirely different from replacing democracy with autocracy”. 19 If the court is added to that summation, democracy is actually slowly being replaced by oligarchy.
The Supreme Court has adopted a standard of reasonableness for judging government decisions and actions, making nearly every government action subject to potential judicial review. And indeed, the court has dramatically increased its involvement in the day-to-day governance of the country and, in recent years, has ruled on governmental decisions and actions that were denied review in the past. For example, after the defense minister exempted full-time yeshiva students from compulsory army service, there were a series of challenges to the law. In 1981, the court ruled that the issue was not justifiable. In 1986, it ruled that it was justiciable, but that the exemption was a reasonable exercise of the minister’s authority. In 1998, however, in Amnon Rubinstein v. Minister of Defense, the court decided that the exemption was unreasonable because the number of yeshiva students had increased. 20 This ruling substituted the court’s judgment for the discretion the Knesset had lodged in the defense minister. The court was now deciding how many exemptions defense policy could afford. It deferred implementation for one year to give the Knesset time to enact legislation, and then granted additional extensions. The Knesset ultimately legislated a further two-year continuation of the exemptions while it considered the issue. In response to a petition that this extension be held unconstitutional, the court created an eleven-justice panel to consider the issue, but no ruling has yet been handed down.
The court’s self-arrogated authority to overturn government decisions solely on the court’s judgment that the action in question is “unreasonable” was again displayed when the Transport Ministry’s traffic supervisor, who is legally authorized to close major roads, decided to close a street that the Haredi (ultra-Orthodox Jews) wanted closed on the Sabbath. The court recommended that the government appoint a commission to study the issue, which the government did. But the commission agreed with the closing. The court then resumed hearings and prohibited the closure. 21 The justices cited no law or right that had been violated, but simply thought it unreasonable and, therefore, illegal.
The reasonability standard disregards the separation of powers. In judging reasonableness, the court necessarily nullifies the legislative process. It claims that it uses the power to overturn unreasonable government decisions only where the decisions are so egregious that “it is inconceivable that any reasonable authority would be likely to make (them) -which must mean that a majority of otherwise sensible people are behaving so irrationally as to approach temporary insanity. But the cases in which the power has been used show that the standard of unreasonableness is much lower than the court suggests and amounts to no more than second-guessing.
The Israeli Supreme Court’s standard of “reasonableness” is equivalent to the U.S. Supreme Court’s “substantive due process” and the Canadian Supreme Court’s “fundamental justice.” All these terms are formulations of the judiciary’s never-ending quest for a form of words that will justify judicial power that is essentially lawless. The three formulas differ in only one respect: the American and Canadian courts perverted the plain meaning of procedural guarantees in order to seize an authority over the substance of legislation, while the Israeli court simply imported an innocuous-sounding standard to achieve the same radical assumption of illegitimate power.
The court has vetoed the Cabinet’s choice for director general of a government ministry, overturned the Knesset’s decision to lift the parliamentary immunity of a member of the Knesset so he could stand trial, and denied the government right to continue a fifty-year-old ban on importing nonkosher meat. It has overturned the attorney general’s decision not to try certain public figures, prevented the government from dismissing its civil service commissioner, and even overturned the Israel Prize Committee’s choice of a prize recipient. In Raphael Pinhasi v. Knesset House Committee and others, the court overturned the Knesset’s decision to lift Pinhasi’s parliamentary immunity so he would stand trial for violations of tax and party-funding laws on the ground that the Knesset was playing a “quasi-judicial” role and had not met standards of judicial fairness. 22 Members had not, for example, been given copies of the indictment or had enough time to read the protocols of the House Committee’s lengthy analysis of the issue. The quasi-judicial rationale was preposterous because the Knesset did not try or convict Pinhasi of any offense but merely gave permission for him to stand trial, where he would have been entitled to full procedural regularity.
There appear to be few limits to the Supreme Court’s willingness to interfere in political matters. In Yosef Zherzhevsky v. Prime Minister, the court overturned a coalition agreement between the Likud and a small faction in which the Likud agreed to cancel a debt that the smaller party owed it. 23 The court said that this agreement was equivalent to buying power and therefore illegal. In Ze’ev Welner v. Chairman of the Labor Party, Labor and Shas (a religious political party) agreed that, “If the status quo in religious affairs is violated [by a decision of the Supreme Court], the two sides promise to correct the violation by means of appropriate legislation”.24 The attorney general declared the agreement” inappropriate, and not to be acted upon. ” During initial hearings, the justices made it clear they were likely to rule the same way. Labor and Shas then altered the wording: “In any case where the two sides think the status quo has been violated, the two sides will investigate, in a serious and reasonable manner-considering each case on its own merits-how it is possible to restore the status quo, and will act accordingly …. If it becomes clear that the only way to restore the status quo is through legislation, the two sides will use their discretion as to the appropriate content of such legislation. ” Labor promised Shas that this wording meant the same thing as the previous form of the agreement. It must have taken some acrobatic lawyering to produce the identical promise disguised in verbose prose. Even so, the agreement slipped by the court by only a three-to-two vote.
Interference with National Security
In assessing the Supreme Court’s performance in the area of national security, it is essential to remember the nation’s extremely precarious position in the Middle East. All the nations surrounding Israel ardently desire the country’s destruction and, indeed, the annihilation of the Jews. Arab terrorist organizations regularly commit bloody outrages against the civilian population. A significant portion of Israeli citizens are Arabs, some of whom are of dubious loyalty. Considering the dangers continually confronting Israel, its responses to terrorist attacks and the threat of invasion have been quite moderate, sometimes arguably too moderate. Be that as it may, one would suppose that the nation’s courts would stay out of life-and-death decisions about national security and defense. Yet the opposite has been the case.
The court suggested in Committee Against Torture v. Government of Israel that it may take over the supervision of the methods of interrogation employed by Israel’s General Security Service (GSS) against suspected terrorists 25 The GSS had been using both psychological and physical techniques, such as shaking, sleep deprivation, and placing those waiting for interrogation in the “Shabach” position (the prisoner seated on a low chair tilted forward, hands tied uncomfortably behind his back, head covered by an opaque sack, while powerfully loud music was played in the room). Although very unpleasant and potentially damaging, these techniques did not come close in severity to those used by many other security forces around the world. The GSS’s decision to use physical force in each case was based on internal regulations that required permission from various ranks in the GSS hierarchy and that were themselves approved by a special Ministerial Committee. President Barak’s opinion for the court acknowledged that Israel “has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding”.26 The difficulty was that the Basic Law: Human Dignity and Liberty contains clauses guaranteeing freedom from violation of a person’s body or dignity and from restrictions of liberty by imprisonment. The rights could be violated only “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”.27 But the Knesset had never passed legislation authorizing GSS interrogation techniques or even authorizing the existence of the GSS. The court’s decision disapproving of the techniques was, therefore, correct, but the rhetoric was so disapproving that any legislation authorizing the GSS’s techniques would probably be very unlikely to pass the court’s interpretation of values, proper purpose, and least-restrictive means. An additional problem is that the decision to use force and the degree necessary will always depend on the facts of a particular case. It is difficult to see how the Knesset can do more than articulate general principles, and even then the court may well disapprove of their application.28
Terrorist organizations, often in cooperation with Arab governments, seize and hold Israeli soldiers hostage. The Israel Defense Force (IDF) retaliates in a variety of ways, among them by holding terrorists in order to assist negotiations leading to an exchange of prisoners. In John Doe v. Minister of Defense, the Supreme Court of Israel ruled that the IDF had to release eight Lebanese prisoners, members of Hezbollah, whom it had held past the expiration of their prison terms as leverage in securing the release of Israeli prisoners of war.29 In a six-to-three vote, President Barak, writ ng for the majority, ordered the Lebanese prisoners set free. No law prevented the IDF from using this “bargaining chip” tactic, but Barak wrote hat holding the guerrillas violated their dignity and freedom. An important means of preserving national security was taken away by the court.
These cases do not stand alone. Kedan v. Israel Lands Administration, known as the Katzir decision after the community involved, held that the government could not refuse Arab citizens of Israel the right to establish residence in Katzir, which was situated along with seven other communities to create a buffer zone against areas with large Arab populations 30 The admission on of Arabs, citizens of Israel or not, to such communities would endanger and perhaps defeat the defensive purpose of the buffer zone policy. Barak wrote the opinion holding that using criteria of nationality or religion was discriminatory and therefore a violation of the equality principle. The disingenuity of the reasoning need not detain us. The important point is that, once again, universalistic principles were deployed to harm Israel’s security, with it adequately weighing Israel’s particular circumstance and needs.
These three cases indicate the direction in which the court is headed. Perhaps the Israeli public should begin to take seriously President Barak’s assertion that the court has the authority to rule on the deployment of military forces in wartime.
Homosexuality
The Supreme Court has been active in normalizing homosexual conduct. Given its absorption with abstract versions of equality, freedom, and dignity, it could hardly be otherwise. Still, the decision in Berner-Kadish v. minister of Interior must have come as a shock: The court’s protectiveness of homosexual relations, in this case, led it to redefine the family unit.31 A lesbian couple asked that both of them be registered as the mothers of a boy whom one had borne and the other adopted under California law. (California has a peculiar culture. Americans have a saying that the continent is tilted and that everything loose rolls to the West Coast. Israel should be wary of adopting California’s policies.) A split three-justice court ordered that both women be listed as the mother, in direct defiance of Israel’s law that adoption can only be done by a husband and wife. The court majority held that the minister had no right to question the legal documents showing both women as the mother. Apparently, Israel has lost the authority to define what constitutes a legal family on its soil whenever a foreign country recognizes some other arrangement as a family.
In another case, the Minister of Education, relying on a panel of experts, determined that a program in which four teenage homosexuals discussed their sexual preferences should be made more balanced before being shown on Educational TV. A three-judge panel of the Supreme Court, including President Barak, assumed that a positive portrayal of homosexuality could have no impact on its incidence and ordered the program broadcast.32 Not a single statute or precedent was cited. In his comment on the case, Jonathan Rosenblum asked that we imagine a program in which four Haredi teenagers discuss their lives. If Educational TV refused to broadcast the show, “Does anyone dream that the Supreme Court would … order the program shown? The [petitioners] would more likely be assessed court costs for filing a frivolous suit”.33 It is quite true that, in the court’s view, homosexuals are a favored class and Orthodox believers a disfavored one.
Religion
The court’s obsession with equality determined its decision in Hoffman v. Director-General of the Prime Minister’s Office.34 Overturning a practice that had existed for centuries, the court ruled that Women of the Wall, a women’s prayer group, had the right to hold prayer services at Jerusalem’s Western Wall. As David Hazony has commented, “it has been an important judicial tradition in Israel to rule consistently for the preservation of extant practices in the holy places of all faiths” because such places are “a tinderbox of sensibilities and passions”.35 The alteration of such practices in Jewish, Christian, or Muslim shrines” risks disrupting the delicate balance which in Israel among competing religious interests and between those and the state. “Whatever the merits of the particular dispute, believed the ruling set a” potentially catastrophic “precedent.36
What may save the ruling from being catastrophic is that the court seems unlikely to extend a decision that is partly responsive to feminists but vociferously opposed by other groups. But there is a worrisome explanation why the decision went as far as it did in satisfying feminists. The court has repeatedly upheld the government’s prohibition of Jewish and Christian worship on the Temple Mount because such prayer would offend Muslim sensibilities and would be liable to provoke Muslim riots. The government’s argument in Hoffman was that women’s prayer at the Wall would offend ultra-Orthodox sensibilities and would be liable to provoke ultra-Orthodox riots. Concern for Muslim sensibilities was reasonable, but concern for ultra-Orthodox sensibilities was not.
The court’s rejection of specifically Jewish values was also evident in its that the importation of nonkosher meat may not be banned; munities sited for defensive purposes may not be limited to Jews; Haredi youth groups may not be funded by the government as other youth groups are. As Rosenblum wrote: “For Israeli civil libertarians, free religion and the religious seems to be the highest civil liberty”.37
“The World Is Filled with Law”
In Jane Dde v. State of Israel, three justices sitting as the final appellate court it is criminal for a parent to use the mildest corporal punishment (e.g., a light slap on the hand) in disciplining a child.38 The court interpreting a provision of the Criminal Code prohibiting assault, in clear violation of the Knesset’s intent. The opinion purported to what Gordon says “is fast becoming the Supreme Court’s justification for judicial lawmaking, the 1992 Basic Law: Human Dignity and Freedom.39 That law says nothing, and was not intend to say anything, about reasonable spanking. Nor is the court’s position supported by any of the other sources it cites. Worse, there was no reason for the court to have taken up the subject. The facts of the particular case showed that a mother had clearly assaulted her children with par violent beatings. The court should have stopped there. Instead, it went on to legislate against even mild physical discipline, an issue not before it. Not only did the court deform the Criminal Code but, since reasonable physical discipline of a child is not a violation of civil law, the court managed to accomplish the feat of declaring behavior that is not even a tort is a crime, punishable by two years in prison.
This, Gordon wrote, is the court’s “most significant incursion to date into Israelis private lives”.40 Indeed, that incursion follows from Barak’s view that “the autonomy of the individual … exists because it is recognized by the law.” Barak worries that some aspect of life, somewhere, may escape the court’s domination: “The moment that a certain realm is not justiciable, the wielder of power does whatever he wants”.41 He cites the executive branch, the police, and actions taken within “normal family relations.” In other words, no freedom of the individual may exist without the court’s approval It is possible to lament the decision as a violation of parents’ personal autonomy, but it is also reasonable to view it as a radical expansion of the child’s autonomy (An increase in one person’s autonomy often necessarily requires the diminishment of another’s.) Much of the opinion reads that way.
Punishment that causes pain and humiliation does not contribute to the child’s character or education; it infringes on his rights as a human being. It damages his body, his feelings, his dignity, and his proper development … We must not endanger the physical and emotional integrity of a minor by administering any corporal punishment at all 42.
That passage reflects not merely the court’s desire to confer radical personal autonomy on the child, but also the strain of softness and aversion to discomfort that is characteristic of modern liberalism.
Speech and Expression
The government’s Film Censorship Board, which is charged with the duty of judging a film’s debauchery according to contemporary community standards, decided that a film was pornographic and could not be shown. In an obvious parallel to U.S. Court decisions on pornography, the Supreme Court, despite the judgment of a majority of both the censorship board and the panel of independent experts consulted, decided that the testimony of those few experts who thought the movie was “art” was enough to warrant the films protection on free-speech grounds.43 The decision of a government body acting responsibly and fully within its legal mandate was overturned in favor of a free-speech principle that had no legislative basis whatever.
“Dignity”
The direction of the court’s activism is indicated in cases of less gravity than those discussed above. In Akiva Nofx Ministry of Defense, the court ruled in favor of a secular bearded man who demanded that the government ment supply him (free of charge) with a special gas mask that, unlike ordinary masks given to the public, could fit over a beard.44 The government wanted him to pay a fee, since the special mask cost the state two and a half times as much as the ordinary mask. Orthodox Jews were given the special masks free; only the secular bearded were required to pay. That distinction was correctly ruled discriminatory, and the court could have told the government either to fund everyone or no one. Instead, the government was told to fund everyone, but the court apparently could not resist producing a parody of New Class values. It ruled that “a beard is part of the man’s self-image” and the right to determine one’s self-image is implicitly protected by the Basic Law: Human Dignity and Liberty. Concern for radical personal autonomy, free of cost, can hardly get sillier. The court said that there was no need to ascribe this right to any explicitly mentioned right in the law because “human dignity, as a protected constitutional value, has a broader meaning than the sum total of the recognized specific rights.” That argument closely resembles the reasoning, discussed in chapter 2, by which Justice William J. Brennan of the United States Supreme Court concluded that what the Constitution really protects is dignity, and he would decide what dignity demands, and by which Justice William O. Douglas of the same Court found a right of privacy broader than the sum total of recognized specific rights, although the right of privacy was not one of them.
Jewish and Democratic Values
Barak and his court are redefining Israel’s values so that, in area after area of Israeli life, the Jewishness of the state matters less and less. Barak has written that Jewish values should be interpreted at the highest level of abstraction-freedom, equality, justice-so that Jewish values become indistinguishable from democratic values. In this situation, Jewish particularism disappears into the mists of abstract universalism — part of what I have called the socialist impulse — with predictably dire consequences. An Israeli court that rules on the basis of the same set of ideas as its American, Canadian, or German peers, and that insists on universalist principles, cannot sustain the particularist Jewish laws and framework set up by Israel’s Zionist founders. Nor does it take into account Israel’s uniquely precarious situation in the Middle East. Given the centrality of the Supreme Court in Israel, the idea that Israel’s Jewish character ought not to influence its decision-making is likely to influence other branches of government as well as a growing segment of the citizenry.
It is impossible not to recognize the court’s performance as one strand of a much wider weave: post-Zionism. This is a new frame of mind, propagated mainly by Israeli academics and others of the intelligentsia, which denigrates the ideals and narrative of the Zionists who founded the Jewish nation. It is to be found in education curricula at all levels. As Yoram Hazony wrote, “The only Israeli institution likely to rival the Education Ministry in its ability to shape the Jewish character of the state of Israel is the country’s Supreme Court 45 Education and law are each powerful forces. In tandem, they may prove overwhelming.
According to Barak, when the values of Israel as a Jewish state cannot be reconciled with its values as a democratic state, the decision must be made according to “the views of the enlightened community in Israel.” The court decides who is “enlightened” and who is not, but in practice, the “enlightened community” is another term for the New Class. As Hillel Neuer points out, however, Barak’s enlightened community is not a community at all; the phrase is a metaphor for a particular set of values, which is to be made dominant by judicial decision. 46 The enlightened community holds tight to the values of universalism and progressivism, which include the defense of individual rights and equality. Given the value of universalism, in cases where the general public would prefer a value specific to Judaism, that public is effectively left without a voice or the ability to govern. A liberal world view is, willy-nilly, forced upon it. This is very much the same, though far more explicitly expressed, as
the powerful tendency of the U.S. Supreme Court to be influenced by the values of the academy and the intelligentsia. Barak’s critics say the enlightened are an identifiable set of people recognizable by postal zip code, social affiliation, and party loyalty. In the United States a similar set is identifiable by faculty status, particularly in places such as Cambridge, New Haven, Ann Arbor, and Palo Alto; by occupation, especially journalists, professors and teachers, and television and motion picture personnel; and by politics, such as loyalty to the Democratic Party. This “enlightened” minority has a major influence on our courts, although no American judge has been as imprudent as Barak in articulating that fact.
Post-Zionism appears to be the Israeli version of the counterculture prevailing among elites of other Western nations. That counterculture, which is no longer counter but dominant, represents the outlook of the New Class. In Israel, as in the United States, Canada, and Europe, a culture war is raging and courts side with the New Class minority against the public. Judicial activism and the culture war go hand in hand, and the enlistment of courts on one side of the war gives the New Class an extraordinarily powerful weapon. “At the end of the day,” according to Neuer, “one is left with a sense that a judge who searches for the values of the ‘enlightened community’ is likely to find them inside himself and then use the metaphor to justify his subjective conclusions.” 47 I once wrote of the US Supreme Court that a judge who looks outside the actual Constitution looks inside himself and nowhere else. 48 Some commentators, usually of the liberal variety, try to make the difference in judicial approaches a question of interpretation, but it is not that at all. A judge who is not bound to the original understanding of a document’s principles interprets nothing but his own state of mind.
Though the displacement of democratic government by judicial rule is far advanced in many Western countries, realization of the degree to which the public has been disfranchised and the executive branch emasculated in Israel comes as a shock to most outside observers. In all probability, the more friendly to Israel such observers are, the greater the dismay. The diminution of democratic governance is worrisome enough, but an equal peril may be presented by the Supreme Court’s promulgation of the abstract universalisms of equality, radical individualism, and rationalism. That this set of universalistic notions should have invaded the Israeli intelligentsia is a major threat, that it should have captured a breathtakingly imperialistic Supreme Court is a calamity. More than Israeli democracy is endangered by the New Class’s post-Zionism; ultimately, Israel’s survival may be at stake.
Perhaps the most significant immediate outcome is that, in the face of potential Supreme Court review, the Knesset is loath to pass laws that it fears a Barak-led court would likely overturn. In effect, Barak’s “constitutional revolution” has effected a far-reaching judicial preemption, the consequences of which differ little from those of actual judicial review. To understand what might be in store for Israel once the Supreme Court actually engages in judicial review, Neuer finds it instructive to look at the experience of Canada, since it underwent a similar constitutional transformation in 1982 with the adoption of the Charter of Rights and Freedoms.49 The comparison is especially relevant because the Charter served as a model for some of the key provisions of Israel’s Basic Laws. This replication accounts for the strong Israeli interest in Canadian judicial and academic interpretations of the Charter. Several Israeli judges, Barak first among them, increasingly refer to Canadian constitutional jurisprudence.
Given its addiction to universal values, moreover, the decisions emerging from the Israel Supreme Court will likely continue to neutralize the Jewish aspects of the Basic Law, while causing ever-greater alienation of those “unenlightened” segments of the population who hold such values dear. The more such cases are adjudicated by a Barak-inspired court, the less Jewish Israel is likely to become and the harder it will be to distinguish it from secular democracies such as Canada and the United States.
The Israeli public participated not at all in the alleged framing of a constitution. That public, however, has been surprisingly quiescent in the face of what could easily be described as a judicial coup d’état. The reasons for that passivity are probably several: the public’s failure to comprehend fully what has happened; the influence of elite groups favoring judicial policymaking; a feeling that the Knesset is too politically riven to be effective; and the court’s reputation as a nonpolitical body that decides fundamental matters on principle.
The “enlightened segment” of the Israeli population does not take kindly to criticism of the role that the Barak-led court has assigned itself. When editorials highly critical of the court and its president appeared, the result was a torrent of denunciations of the newspapers.50 Complaints were filed with the police, charging the papers and their editors with sedition and defamation. There were calls for closure of these newspapers, while prominent politicians from almost every party vied to produce the most vicious castigation of the “crime.” When the chairman of the Israeli Bar Association censured the court for intruding in matters that were properly for the Knesset, there were further denunciations, complaints to the police, and demands that the man be removed from his position both at the association and on the committee that appoints judges. The bar’s ethics committee recommended that he face disciplinary charges.
After the road-closing decision, the Haredi newspapers waged a campaign against Barak, pointing out that the rule of the people had ended and that the court was dictating policy on matters that the Knesset should govern. Instead of finding a sympathetic audience, the entire political establishment went into outrage. Once more there were demands for indictments and drastic legal action against anybody who criticized the court severely. That reaction came from politicians, the mainstream press, and the legal establishment.
The Haredi papers referred to Barak as the driving force behind the sophisticated battle waged against the Jewish viewpoint in Israel. He should be portrayed, the paper said, as a danger to the character of Israeli democracy and a threat to citizens’ power to decide how to run their country. Once more, a protest against any criticism of the court erupted and a former Supreme Court justice said that he was scandalized that any body had “dared to speak harshly against the Supreme Court.” 51 There were calls for a police investigation of the papers for engaging in sedition. One chairman of a Knesset committee demanded that the government shut down the newspapers
Many of these attacks came from the Left, but the Right also assailed critics of the court. The legal community, including the deans of the country’s four major law schools, issued a statement that the editorials were intended to intimidate judges. The Association of Municipal Attorneys asked that action be taken by the attorney general against the papers. It was even said that the attacks would undermine the faith of the public in the judiciary as a whole and in the Supreme Court in particular. An independent judiciary, it was argued, was fundamental to the existence of the rule of law and the preservation of a democratic regime in Israel. That was particularly odd because there is no rule of law when judges’ personal sentiments rule and when the court, far from preserving the democratic regime, is undercutting it. The Haredi papers kept up the attacks, but there were virtually no voices defending what they had written or the right of the papers to publish criticism. The attorney general declined to act on any of the criminal complaints because doing so would infringe on freedom of speech and cause more harm than benefit, but he still made it clear that he did not oppose social pressure to suppress the writers’ views. He said that one of the disadvantages of an indictment was that a published trial would give the editorialists another platform from which to express their views. Even Prime Minister Netanyahu decried what he called unrestrained attacks on the court and its justices. The American Bar Association’s attacks on critics of activist American courts pale by comparison with the fury unleashed in Israel.
Israel has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere. The sad irony is that the Supreme Court, operating with a Basic Law that specifies Israel’s values are both Jewish and democratic, is gradually producing an Israel that is neither Jewish nor democratic.
CONCLUSION
The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions which they have created. (Walter Bagehot)
One of the indispensable institutions of Western civilization is the rule of law. That rule is central to democratic government, a vigorous economy, and individual liberty. A functioning rule of law requires that law be understood to have force and moral weight of its own, independent of the political and cultural struggles of the moment. That is another way of saying that the rule of law, when it is observed, guarantees the supremacy of process in public affairs; self-government, stability, and safety depend on that supremacy.
It is, therefore, ominous news that the rule of law has become confused with-indeed subverted by-the rule of judges. That subversion is precisely what judicial activism accomplishes. Activism in constitutional rulings can be employed in the service of any desired result; an honest reading of a constitution cannot be so employed. Activism elevates the objectives of a dominant minority above the democratic process. In this case, that minority is the New Class, at least for the foreseeable future, a group as authoritarian in its outlook as any other.
The old civics lessons were sound. Rule by the people, the foundation of all Western democracies, means that voters choose legislators and executives according to the policies the candidates offer; those who are elected are expected to enact rules, which judges and juries must apply impartially and as intended. Unless that pattern is at least roughly followed, public debate, elections, and legislative deliberations have little significance. Process comes first, substance follows.
The judiciaries of the West are by no means alone in flouting the rule of law. Jury nullification-the refusal of jurors to be bound by either law or evidence when the results do not fit their personal views-is increasing and, in America at least, there is even a national organization devoted to justifying and encouraging jury lawlessness. That group urges prospective jurors to lie about their views and their willingness to follow the law during the jury selection process. Lawlessness is also built into the bureaucracies that intrusive and ubiquitous governments require. Bureaucracies lay down most of the law that governs us with minimal accountability to either the people or their elected representatives and with minimal concern for consistency.
Perhaps a preference for immediate victories is part of the spirit of our times. No doubt to a large extent that is true. It seems unlikely that these developments could occur without public inertia and weariness with the long-term safeguards and benefits of process for the short-time gratification of desires. That is always and everywhere the human temptation.
But it is precisely that temptation that a constitution and its judicial spokesmen are supposed to protect us against. Constitutions speak for permanent values, and judges are supposed to give those values voice. Instead, national and international judiciaries are, all too often and increasingly, examples of disrespect for the rule of law. Their example at the pinnacle of the legal system teaches a lesson of disrespect for process to all other actors in that system and to the public at large. A judiciary faithless to its duty teaches that winning outside the rules is legitimate and that victory, in the legislature or in the courtroom, is the only virtue.
Both in itself and in the example it sets, judicial activism undermines the foundations of Western democracies. Born in Europe, central to the American and Canadian foundations, and fundamental to Western civilization, the ideal of the rule of law no longer commands much more than verbal allegiance. It has descended to the status of a phrase that judicial adversaries fling at one another. If we do not understand the worldwide corruption of the judicial function, we do not comprehend the full scope of the political revolution that is overtaking the West. The political revolution in Western nations is the gradual but unceasing replacement of government by elected officials with government by appointed judges. The areas of national life in Western nations now controlled by the judiciary were unthinkable, not many years ago. What is now unthinkable may well become thinkable in the next half century.
The political revolution brings with it a cultural revolution. In reading the opinions of many judges, it is apparent that they view their mission as preserving civilization from a barbarian majority motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like. The New Class heartily dislikes bourgeois culture. Hence, courts everywhere displace traditional moralities with cultural socialism.
We are witnessing the growth of an international constitutional common law. It is international because national courts have begun to seek guidance from the decisions of the courts of other nations and because of the recent and rapid proliferation of international tribunals applying treaties, conventions, and what they choose to call “customary international law.” It is constitutional in that courts insist that their rulings control legislatures and that the legislatures obey. It is common law because the courts piece together, case by case, a fabric of law composed of New Class virtues. This new international constitutional common law is illegitimate in each of its aspects.
Internationalism is illegitimate when courts decide to interpret their own constitutions with guidance from the decisions of foreign courts under their national constitutions. The American Constitution, for example, was framed and amended in the light of specific American history, culture, and aspirations. It has a meaning given to it not only by judicial decisions but by the practices of national and state governments. It is not apparent why an American court should take guidance from the decisions of the courts of Jamaica, India, and Zimbabwe, reflecting their very different histories, cultures, aspirations, and practices. Nor is it apparent why the United States or any other country should submit to the jurisdiction of international tribunals that will override their own national interests.
Activism renders illegitimate the claim of this international law to be constitutional. We have seen activism at work in the United States, Canada, Israel, Europe, and tribunals claiming worldwide jurisdiction. We submit to the authority of courts on the understanding that they are truly and accurately expressing the meaning of constitutions and treaties we have approved. When it becomes apparent, as it has over and over again, that the courts are not expressing the meaning of those documents but merely using the documents as launching pads for the reforms they prefer, the claim of constitutionality is revealed as fraudulent. So it is with much international law and its tribunals.
Finally, the common law aspect resides in the fact that courts everywhere are making up the rules by which we are governed, even as the early English judges made up English law before Parliament became the dominant maker of policy. The difference, of course, is that it shortly came to be understood that Parliament could change or abolish the rules the common law judges had created. There is no mandate to be found anywhere in democratic theory for judges to make irreversible major policies when elected legislatures are in business.
The problems created by activism are magnified as law seeps into the crannies of life. As Gertrude Himmelfarb has stated, “Today, in the absence of any firm sense of manners and morals, the law has become the only recognized authority. Just as the state often acts as a surrogate for the dysfunctional family, so the law is the surrogate for a dysfunctional culture and ethos. ” One might add that the law invented by judges is a major cause of the dysfunction that it seeks to cure. “To all the other ‘diseases of democracy,” she continues, “we may now add the mania for litigation. As the law has become more intrusive, so has the judiciary. … The law, we are discovering, is too serious a matter to be left to lawyers or even judges”.1 Our dilemma is that we have so far found no way to retrieve constitutional law from the exclusive control of judges and to restore it to democratic legitimacy. Such action would require that judges conform to their rule to principles actually found within the constitutions they apply and, in turn, practice republican virtue. As Himmelfarb says, “Republican government means self-government-self-discipline, self-restraint, self control, self-reliance-‘republican virtue, ‘in short” 2 Judicial coercion of New Class virtue is the antithesis of republican virtue.
The liberal mindset refuses to recognize that real institutions can never even approximate ideal institutions. The pursuit of the ideal necessarily teaches an abstract, universalistic style of reasoning and legal argument. It leads to an incessant harping on rights that impoverishes political and legal discourse, but it inflicts more damage than that. Rights become weapons in political, cultural, and legal struggles for moral superiority accompanied, of course, by the redistribution of wealth and privilege. The advantages of special rights are obvious, and so the claims of rights proliferate. Given the power of rhetoric rights, there is no easy defense or resistance. The result is a clamorous public square, with groups pitted against one another, and the consequent deterioration of the community’s fabric. One outcome is the further politicization of law, as courts decide which groups are to receive the rights and which must surrender portions of theirs. In that process, nothing resembling a rule of law can be discerned.
Universalistic rhetoric, which is what rights talk is, teaches disrespect for the actual institutions of any nation, perhaps particularly democratic nations. The institutions of such nations are designed to allow compromise, to slow change, to dilute and tame absolutisms. Such institutions embody inconsistencies that are, on balance, wholesome. They are designed, in short, to do things, albeit messily and democratically, that abstract generalizations about the just society bring into contempt. Abstract ideals can never be realized in practice, but the search for cosmic justice continues and drives courts on, carrying them away from the only task they are even tolerably fit to perform.
It may be that whenever the care of a constitution is given to judges, the outcomes described in this book are inevitable. Wherever there is judicial review, two forces are placed in opposition: the democratic principle of the elected branches of government and the antidemocratic principle of the judiciary. It seems not to have occurred to the designers of such arrangements that one or the other of these principles might in time gain ascendancy. But that is precisely what happened in the twentieth century, and the ascendant and aggressive principle is the antidemocratic one. The crucial question for all nations that desire to remain self-governing is how to tame and limit the antidemocratic aggressions of their judiciaries and of the international tribunals and forums we are so blithely and thoughtlessly creating.