JUDGE BARAK, EGALITARIANISM, AND THE RULE OF LAW
By Professor Paul Eidelberg
May 24, 2002
Although Aharon Barak, President of Israel’s Supreme Court, ostensibly believes in the rule of law, he seems to be profoundly ignorant of its prerequisites.
The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet judge Barak made the astonishing remark that Israel’s Basic Laws should be easily changed. (Jerusalem Post, Dec. 20, 1995.) But if Basic Laws can be easily changed—as in Israel—they can hardly be “basic” let alone become old and venerable. Mutable laws, basic or not, cannot possibly inspire reverence for law.
There is a related defect in judge Barak’s mentality. Judge Barak’s judicial decisions, consistent with his avowed democratic propensities, are radically egalitarian. It so happens, however, that the democratic principle of equality implies not only equality between individuals but also between generations, which is obviously subversive of reverence, the precondition of the rule of law.
When all is said and done, however, it may be that judge Barak’s intellectual shallowness masks a Machiavelian lust for power. It would not be difficult to show that Barak, who notoriously declared “everything is justiciable,” is less interested in the rule of law than in the unfettered rule of his Supreme Court and its elitist, ultra-secular agenda.
Examination of the scope of his court’s decisions—unequalled in any democratic country—reveals that for Barak the rule of law is whatever the Supreme Court says it is. But this means that the rule of law in Israel is nothing more than the rule of men, above all, judge Aharon Barak. Shallow pundits are content to call this “judicial activism.” It is nothing less than judicial despotic power!
“Judicial activism” is also evident in decisions of the American Supreme Court, but on a lesser scale than in Israel because of America’s constitutional system of checks and balances, something lacking in the Jewish state.
One way to diminish the despotic power of Israel’s Supreme Court is for the Knesset to amend Basic Law: The Judiciary so as to limit the court’s jurisdiction to organic laws in contradistinction to ordinary legislation. This is done in France and other European democracies. However, thanks to the leveling of moral distinctions by egalitarianism, moral decay and disrespect for law are quite prevalent in France, indeed, throughout the democratic world. Nor is this all.
While undermining reverence for law, egalitarianism also undermines deference. This is one reason why great leadership is not to be expected in democratic societies. The only meaningful deference evident in any democracy is that of yeshiva students toward their rabbis. Yet many rabbis, who obviously revere the Torah, proclaim their devotion to democracy whose egalitarianism (as well as libertarianism) is logically and existentially subversive of reverence along with deference! Judge Barak displays no deference to the wisdom of the Prophets and Sages of Israel.
Egalitarianism also erodes national pride. Think of the internationalism or shallow cosmopolitanism fostered by the UN General Assembly, where all nations, regardless of their intellectual and cultural accomplishments, are equal. In any event, the erosion of national pride is most pronounced in Israel’s egalitarian Supreme Court. Judge Barak has held that Jewish law should not be given a preferred status vis-à-vis other systems of jurisprudence. He writes: “It should never be said that a particular [legal] system has the primary claim to interpretive inspiration.” Needless to say, this dictum also augments the arbitrary power of the Supreme Court and makes nonsense of the rule of law.
Thus far I have painted democracy in a dismal light. Few Jews have the intellectual courage to acknowledge democracy’s shortcomings, let alone its pernicious influence on Judaism and the Jewish state. After all, who can deny democracy’s blessings: its liberation of talents long suppressed by tyranny, its equality of opportunity, its alleviation of poverty, its religious tolerance. True, some complacent observers remind us of Churchill ’s celebrated maxim: “Democracy is not the best form of government, but all others are worse.” Inasmuch as Israel, in the absence of the rule of law, may be described as an “anarchy punctuated by oligarchy,” Israelis should heed Churchill’s maxim and transform their country into a genuine democracy! They might begin by limiting the powers of the Supreme Court, a self-perpetuating oligarchy.
However, contrary to Churchill’s maxim, Israel’s form of government can be made superior to democracy by deriving its principles of freedom and equality from the Torah’s conception of man’s creation in the image of God. Freedom and equality would then have the ethical and rational constraints of Jewish law. This would foster reverence and deference as well as Jewish national pride. It would restore the rule of law and thus put an end to the rule of Aharon Barak.
© Prof. Paul Eidelberg - All Rights Reserved
Professor Paul Eidelberg a Political scientist, author and lecturer is the co-founder and president of The Foundation For Constitutional Democracy with offices in Jerusalem and Washington, DC.
Professor Eidelberg was born in Brooklyn, New York. From high school he enlisted in the United States Air Force where he held the rank of first lieutenant. He received his doctoral degree in political science at the University of Chicago. While studying at the University, he designed and constructed the electronics system for the first brain scanner used at the Argonne Cancer Research Hospital.
Professor Eidelberg wrote a trilogy on the statesmanship of America'sfounding fathers: On the Silence of the Declaration of Independence; The Philosophy of the American Constitution, and A Discourse on Statesmanship.
Eidelberg joined Israel's Bar-Ilan University faculty in 1976. He haswritten several books on the Arab-Israel conflict and on Judaism:Demophrenia provides a psychological analysis of Israel's foreign policy. Jerusalem versus Athens and Beyond the Secular Mind apply Jewish concepts for an understanding of modern problems. Judaic Man develops concepts for a Jewish psychology. His most recent book, Jewish Statesmanship: Lest Israel Fall, provides the philosophical and institutional foundations for reconstructing the State of Israel. It has also been published in Hebrew and in Russian.
Professor Eidelberg is on the Editorial Board of Israel's premier journalNativ, as well as on the Advisory Council of the Ariel Center for PolicyResearch. He has written more than 800 articles for newspapers andscholarly journals in the United States and Israel.
Eidelberg has lectured before Israel's Foreign Office and has writtenpolicy papers for various Knesset Members. He chaired a panel discussion on the topic "Why Israel Needs a Constitution" at the 1997 American Political Science Association conference in Washington, DC. He has drafted a Constitution for Israel which has been published in Hebrew and Russian.
During the past two years, Professor Eidelberg has been conducting seminars on constitutions, diverse parliamentary electoral systems, Jewish law, and related topics at the Jerusalem center of the Foundation for Constitutional Democracy.
Address: P. O. Box 23702 Jerusalem 91236 Israel, E-Mail: [email protected]