The Supreme Court of Israel ironically often violates the rule of law. That's why Israel badly needs judicial reform. The Supreme Court of Israel ironically often violates the rule of law. That's why Israel badly needs judicial reform.

Rule of law v. terrorist releases

In brazen defiance of justice and the rule of law, Prime Minister Benjamin Netanyahu has slavishly adhered to the policy of releasing Arab terrorists as a “good will” or a “confidence-building” gesture to the Palestinian Authority, a consortium of terrorist organizations that know nothing of good will.

Why any rational person would bow to this time-proven futile policy is a subject more suitable for psychiatric than political analysis. As Einstein famously said, to pursue repeatedly the same failed policy is indicative of insanity. However, psychological analysis of Netanyahu’s mentality aside, let us consider his insane policy in terms of the democratic language he employs to justify his adherence to the 1993 Israel-PLO Agreement, namely, that a democracy must abide by its agreement – which he emphasizes despite the fact that the PLO has violated this agreement countless times during his tenure as prime minister.

Sacrificing the rule of law

Rather than accuse Netanyahu of cowardice – the judgment of a leading journalist of The Jerusalem Post – let us limit our analysis to his trashing the democratic principle of the rule of law. However, to be fair, we must point out that violation of the rule of law is quite consistent with the judicial philosophy of former Supreme Court President Aharon Barak, as I shall demonstrate below. We want to the reader to see that contempt for the rule of law in Israel transcends the high-handed policy of this or that Prime Minister.

In fact, disregarding the rule of law in Israel is largely a consequence of the fact that this secular state lacks a genuine constitution. The reader needs to see that this lack of a constitution–one that has been reviewed and ratified by the people of this country–makes it all the easier for Israeli prime ministers exercise virtually unlimited Executive power, including the power (1) to make agreements with terrorist organizations; (2) to release terrorists; and (3) to reward terrorists with Jewish land—as Netanyahu did when, without Knesset or public debate, he endorsed the creation of a Palestinian state in Judea and Samaria in clear violation of the rule of law.

Prerequisites of the rule of law

Former Supreme Court President Aharon Barak, whose judicial legacy rules this country, was profoundly ignorant of the prerequisites of the rule or law or has simply ignored it to enlarge his and the Court’s power, as was stated by Reuven Rivlin, former Speaker of the Knesset, in an interview with Ha’aretz Magazine on 5 June 2003.

That said, it must first be emphasized that 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—which consist of an assortment of ad hoc laws enacted since 1958—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, or inspire citizens with inspire reverence for law.

The enactment of Israel’s Basic Laws has been so haphazard and arbitrary, and so poorly known or understood by the general public, that they cannot possibly foster respect for the rule of law, much less a sense of national character. When the rule of law is a reality and not a ruse or a shibboleth, citizens will have a steady and keen awareness of their rights and duties, without which mutual trust and cooperation among them is impossible. The rule of law therefore cultivates among diverse citizens a sense national solidarity. These obvious prerequisites of any civilized and stable community – say of a respectable democracy – had no support in the mentality of Judge Aharon Barak!

Defining the rule of law

To justify this provocative statement, it will first be necessary to define the rule of law in democratic terms. Professor Harry Jaffa offers this 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.[1]

Despite his democratic pretensions, Judge Barak repeatedly violated this democratic understanding of rule of law. Under his leadership, the court rendered countless decisions “without regard to general rules established by and through the authority of the whole community.” Indeed, many of its decisions violated basic values of the Jewish heritage.

Anti-Jewish decisions

To cite only a few of many example, the Barak court (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).

These anti-Jewish decisions exemplify the permissiveness and nihilism of post-modern democracy. They clearly indicate that Judge Barak tacitly regards all lifestyles and aesthetic values as equal, such that none should have any legal preference. Notions of right and wrong, beautiful and ugly, are purely subjective. Yet Judge Barak repeatedly declared that no conflict exists between democracy and Judaism! Is it not obvious, therefore, that Barak substituted his own subjective preferences for the judgment of the Knesset and for the time-honored teachings of the Prophets and Sages of Israel? This is not all.

What is reasonable?

Few people would venture to call the Supreme Court a subversive institution. Yet, in 2002, in the midst of the Arafat War, the Barak Court not only prohibited 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” was 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). 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 is judicial arrogance, and it fosters contempt for the rule of law.[2]

Egalitarianism and the Rule of Law

Barak’s judicial decisions, consistent with his avowed democratic propensities, are radically egalitarian. It never occurred to him 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.[3]

Is it not ironic, therefore, that Israel, from whose Torah mankind derived the idea 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, great lawmakers are rarer 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?

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 everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

Reverence for law

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. Nevertheless, Israel’s Basic Law: Human Freedom and Dignity law was enacted by the absurd vote of 32-21, i.e., with less than half of the Knesset’s membership voting! And Judge Barak interpreted this law as endowing the Court with the power of judicial review!

Judicial review presupposes a fundamental law superior to ordinary legislation.[4] Clearly, 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. It seems to have escaped his intelligence that if Basic Laws are easily, and therefore frequently, changed—as he insists—what need is there of a Supreme Court or of Judges with 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.

Laws should not change often

Contrary to Judge Barak, James 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 very much to the anti-traditional jurisprudence of Judge Aharon Barak.

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 was less interested in the rule of law than in the unfettered rule of his ultra-secular oriented Supreme Court. Examination of the enormous scope of his court’s decisions—unequalled in any democratic country—reveals that what Barak understood by the rule of law is whatever the Court says it is. The rule of law in Israel is nothing more than the arbitrary rule of men. The benighted citizens of Israel have been conditioned to this judicial despotism.

Recommendations

The mode of appointing judges of the Supreme should be overhauled. The judges should be nominated by the Prime Minister with the advice of a judicial council consisting of jurisprudents learned in secular and Jewish law. They should be vetted in public sessions of the Knesset, and their appointment should require a three-fifths vote of the Knesset’s membership.

Finally, we need legislation that no person convicted of a felony will be released from jail prior to the termination of his sentence without approval of a parole board consisting of qualified private citizens. This will preclude the release of terrorists.◘


Endnotes

[1] Harry Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Doubleday, 1959), 195.

[2] See Evelyn Gordon, “Fast Track to Anarchy,” Jerusalem Post, April 23, 2002, who cites examples of public officials who, in imitation of the Barak court, have substituted their personal preferences for the laws of the State.

[3] Jaffa, 231.

[4] See Paul Eidelberg, The Philosophy of the American Constitution (Free Press, 1966), 217-234.

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Israel, judiciary, Middle East, politicians, terrorism

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