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Wednesday, January 6, 2010

The Judge in a Fascist Dictatorship: A Review of Judge Aharon Barak

Book review: The Judge in a Democracy by Aharon Barak.

I haven't read Barak's book yet, but I am familiar with Israeli politics in general, so I say the following from my general impression of Barak and Israeli "democracy", if it can be called that.

Judge Richard Posner (a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School) shows in his review of Barak's book ("Enlightened Despot", The New Republic, 23 April 2007, link) that Barak, unencumbered by a constitution, has complete free reign to do as he pleases. In America, separation of powers implies checks and balances. In other words, each branch of the government has power over the other, like a game of rock, paper, scissors. Each branch keeps the others in check. But in Israel, the judiciary has no one checking it; it can do as it pleases, with no limits. There is no constitution which the judge is expected to use to judge laws. Instead, the judge applies the "reasonability" test, which means the judge can strike down any law which he personally feels is unreasonable, according to his own ideology.

(I am indebted to my friend Tamar Har-Oz for pointing me to Posner's piece.)

Cf. "Opinion: Road to Nowhere", Nitsana Darshan-Leitner, Jerusalem Post, 4 January 2010, here:
The court claims that these rulings are based on what is known as the "reasonability" test, in which the justices assert the right to overrule any government action they deems unreasonable. When the court started using this test in the 1990s, critics warned that it would inevitably lead to judges imposing their ideology on the country, and replacing their judgment for that of elected officials - a slap in the face to democratic rule, according to which it is the voters, not the unelected judges, who ultimately decide whether their leaders are doing a reasonable job. The 443 ruling proves, again, that the critics were right.

Cf. Dr. Re'aya Epstein's appendix to Moshe Feiglin's book, Where There are No Men. On page 283, she writes (quoted in Michael Makovi, "Why I Won't Serve in the IDF: Being Jailed For IDF Conscientious Objection", link):
This [Israeli] regime does indeed comprise both liberal and totalitarian elements. Its liberal element is the liberal ideology proclaimed by the ruling oligarchy. Chief Justice of the Supreme Court of Justice, Aaron Barak, repeatedly emphasizes that the rulings of the judiciary generally and of the Supreme Court in particular are in conformity with the liberal world outlook of the 'enlightened public'. Hence it follows that those elements of the public that not subscribe to the views of of the 'enlightened public', as defined by Mr. Barak, fall outside the realm of judicial legitimacy and of democracy itself, since these, according to the school of thought represented by the 'enlightened' Justice Barak and his associates, are the exclusive possession of the 'enlightened public'.
In like wise, Robert Bork, in his review of Barak ("Barak’s Rule", Azure no. 27, Winter 5767/2007, here and excerpted here), he says,
The judge’s answer is unsettling: Not all people qualify as "the people." New fundamental principles require that "a process of ‘common conviction’ must first take place among the enlightened members of society regarding the truth and justice of those norms and standards before we can say that a general will has been reached that these should become binding with the approval and sanction of the positive law." The "general will" consists of the opinions dominant within the intellectual class at any given moment, so that the "people" who do the cherishing are academics, journalists, intellectuals, and, of course, judges. Judges will decide when a general will has ripened sufficiently, and then,without further ado, convert the norms and standards into positive law.

As Posner further says (op. cit.):
Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words. The leading abstraction is "democracy." Political democracy in the modern sense means a system of government in which the key officials stand for election at relatively short intervals and thus are accountable to the citizenry. A judiciary that is free to override the decisions of those officials curtails democracy. For Barak, however, democracy has a "substantive" component, namely a set of rights ("human rights" not limited to political rights, such as the right to criticize public officials, that support democracy), enforced by the judiciary, that clips the wings of the elected officials. That is not a justification for a hyperactive judiciary, it is merely a redefinition of it.

In other words, according to Posner: for Barak, democracy has nothing to do with the will of the people or the consent of the governed, or the social contract theory of John Locke. Democracy for Barak is an ideology, with certain concrete beliefs. It is what Epstein (op. cit.) calls an ideocracy, a reverse-theology. For Barak, democracy is a belief-system, much like the Democratic and Republican parties in America are. Thus, Barak can strike out any law he disagrees with, based on his own personal ideology, because his ideology IS democracy.

Bork seems to agree, saying,
There is a strong and all-pervasive suspicion of democracy in this book, as indeed there was in Barak’s performance on the bench. He seeks to deny the authoritarian nature of the trend he applauds by re-defining democracy, which consists, according to Barak, of two parts: "Formal democracy" (the rule of the people through elected representatives) and "substantive democracy" (including an independent judiciary, the rule of law, and human rights).

Similarly, Epstein (op. cit.) explains that in Israel, "democracy" has been defined to mean "peace" or "Oslo". Thus, even the right-wing candidates feel obligated to follow leftist policies, because these lefists polices are democracy, in this "Kafkaesqe" reality. In Israel, democracy has nothing to do with John Locke; democracy for Israelis is not a system of government, but rather, it is an actual ideology. Thus, she says,
In any case, the will of the people, which found expression in free elections, does not materialize as a decisive factor in this reality; what is more, this will is effectively neutralized. It is not only the will of the majority that is marginalized, but also the will of the minority groups (apart from the minority [viz. Labor] which has the real governing power), ... if they do not toe the line, the only politically-correct line, set in this state with its liberal-totalitarian regime.
And since the judges in Israel elect other judges (in America, Congress and the President together fill that role), the judiciary in Israel is a self-perpetuating oligarchy over which the people have no power, nor their elected representatives.

This anti-democratic nature of Israeli "democracy" is nothing new. According to Defense Minister Ehud Barak ("Barak: Hesder Arrangement with Har Bracha is Over", Gil Ronen, Arutz Sheva, 22 December 2009, link; quoted in Makovi, op. cit.):
One of the foundations of a democratic state is a monopoly on the use of force on the one hand; on the other is the state's authority over the citizens. The citizens express their stances through political activity and the ballot box. The State has an army and the army is under the authority of the State, and of no other body. We are not the only country in the world in which the army is called upon to carry out civilian assignments. When a state reaches the place in which it needs to enforce the law on citizens, in has no choice but to use its army. This instruction must also be carried out and obeyed, this is the true basis of democracy.

According to Epstein (op. cit.), the reason for Israel's anti-democratic nature is that:
This was due to the Israeli state's viewing itself openly (at least in the early days) as a loyal protege of Soviet Russia, which found expression not only in the red flags and the singing singing of the Internationale. From the Six Day War until the collapse of the communist regime in Russia, Israel passed through a stage of liberalization. However, this liberalization actually was limited to a change in terminology alone. The people, their way of thinking, the political culture, and above all, the deeply-rooted conviction that the right and duty hold the reins of power were vested exclusively in 'us' - remained as firm as heretofore. Thus the previous totalitarian democracy assumed the guise of liberalism, appearing as a liberal-totalitarian or totalitarian-liberal dragon - in other words, 'Israeli Bolshevism in the guise of Liberal Democracy'. ... In this manner an intrinsic continuity was preserved between the innovative Israeli liberalism and those factors that begot and nourished it, namely, the late Russian totalitarianism.

The anti-democratic nature of Israeli politics is thus nothing new. I'm not really sure why Israel is considered a democracy in the first place; I more consider it an elected dictatorship. Elect the Left, and you get the Left; elect the Right, and you still get the Left. In Israel, the media and judiciary together wield more power than the Knesset, and so the will of the people means preciously little. Israel is a perfect example of what happens when you foist democracy on a people with no history or political culture of democracy. They simply don't know what to do with it, and when their leaders abuse their power, the people don't even realize anything is amiss. Israel's Supreme Court, in the sedition trial of Moshe Feiglin, even held that non-violent civil disobedience is undemocratic! Every time a right-wing individual in Israel speaks up, the Left in Israel advocates revoking his free speech to preserve democracy! MKs Nahman Shai and Ophir Pines-Paz, for example, are very much guilty of this. Anyone with whom they disagree is "undemocratic" and must be denied free speech. (See my "Why I Won't Serve in the IDF: Being Jailed For IDF Conscientious Objection", op. cit.) According to Epstein (op. cit.),
There is a universal aspect to this degeneration of Israeli democracy, an aspect that reminds one of the American trauma of the '50s (the period of McCarthyism). Fear of the totalitarian power of the American communists almost converted the challenged democracy into a dictatorship. Similarly, in Israel, the Left's fear (real or imagined) of their opponents, who are always considered 'fascists', changed the 'democracy-on-the-defensive' into an aggressive dictatorship. ... [I]n Israel the communist approach to the essence of democracy (a totalitarian democracy) was embraced by the Left. Those sectors labeled by the Israeli Left as 'fascists' were actually more liberal in their world outlook and in their political behavior, much more than their uncompromising and antagonistic opponents. The story that unfolds in this book by Moshe Feiglin leads inexorably to this conclusion. ... This book by Moshe Feiglin, a rank-and-file Israeli Jew, will eventually find its way to its well-earned position as one of the earliest intellectual sources instrumental in the creation of a liberal democracy in Israel whose roots lie deep in Jewish foundations and wich does not feel required to contest them.

So Aharon Barak's book might be interesting. As Gershom Scholem said, "Kabbalah is nonsense, but the study of nonsense - that is scholarship!". Aharon Barak's words may not be democratic, and his book is likely mistitled. But the study of anti-democratic thought - that is scholarship!

4 comments:

Larry Lennhoff said...

Robert' Bork wrote a review of Barak's previous book available for download here. Azure magazine has had a number of good articles on Barak and on the Israeli Supreme Court in general, but they seem to have put up a paywall since the last time I was there.

The Israeli Supreme Court reminds me of the Agudah's Motzet in one important respect - both appoint their own new members, thus making any democratic input into the system impossible. To my mind, this is a fundamental flaw in both institutions. From their perspective this creates institutional continuity and perhaps even ensures a meritocracy (certainly it affirms the power for the elite).

Yitzchak Micha'el said...

In actual fact all WESTERN JUDICIARY MEMBERS (ue Judges) are in fact able to do just this declare what they want. However in most cases they play the PR game and tend to not be so ibvious about whereas in ISRAEL their is no sense of tact nor apparence of doing the right thing as the custom is in the US, UK AUS INDIA etc where they rule via JUDICIAL LAW.

Mikewind Dale said...

Or, as Posner says, all judges have a tether to a constitution. As Posner says, the tether may become long and tenuous and frayed, but it's still there. There's still something limiting the judge. But in Israel, there's no constitution; the judge literally and truly has NO limits at all. And since he cannot be impeached, he fears no one. He could declare himself king and void all Israeli laws, and who would stop him?

Larry Lennhoff said...

Yitzchak

I'm not going to talk about non-US systems, but in the US while the judiciary has a huge say they are not absolute. If they rule a law unconstitutional or interpret it differently than Congress intended Congress can pass a law to make its intent clear (as it did with the Religious Freedom Restoration Act) or attempt to pass a constitutional amendment (as it has tried to do with Flag burning amendments).

The Israeli Supreme Court as a matter of policy states that the 'unreasonableness rule' trumps everything else. There is no way to force them to change a ruling within the system as currently modified.

Finally, if the system breaks down sufficiently there are still remedies available. Impeachment is one possibility and finally you have the Andrew Jackson response "Justice Marshall made that decision - let him enforce it." These are extreme measures for extreme cases and I hope none such show up in the US.

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