Tuesday, December 18, 2007

Barak Was Boinged Tonight

This was the scene of the Hall at the Hebrew University this evening as the debate between Richard Posner and Aaron Barak finished.

Richard A. Posner, Judge of the United States Seventh Circuit Court of Appeals and Senior Lecturer at the University of Chicago Law School, engaged in a debate of sorts with recently retired President of Israel's Supreme Court, Justice Aaron Barak.

I don't think that many people at the crowded hall were aware of this book review Posner published, entitled Enlightened Despot and which contains this opinion of Barak:-

only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon's taking the crown out of the pope's hands and putting it on his own head.

and this here:-

In 2006, he [Barak] published "The Judge in a Democracy", an examination of his judicial philosophy, in which he describes the role of a judge, beyond dispute resolution, is to connect law with society and to protect the constitution and democracy. He also espouses the role of purposive interpretation to reading constitutional texts. The book was savagely reviewed by conservative legal scholars who felt that Barak is advocating Judicial supremacy. Richard Posner's review, who characterized Barak as a "judicial buccaneer",

Robert H. Bork, law professor, published an article in Azure here wherein he wrote, inter alia:-

it would appear that Barak is unconcerned that the rule of law -- which he praises as part of “substantive democracy” -- is in fact being replaced by the rule of judges, a trend to which he himself is the major contributor. Perhaps he believes that judges are simply intellectually and morally superior to other actors in the nation’s politics, and thus judicial authoritarianism is necessary.

Anyway, after interruptions by fanatic anti-Israel pro-Palestinian activists poorly dealt with by the security detail, the fireworks started. I don't think Barak was truly aware of what Posner, in a low-keyed address, was going to do to him. He notched Barak down. Posner bluntly said judges have no expertise outside the law so where does Barak come off lecturing about human rights. He insisted by implication that judges like Barak mystify their calling and use rhetoric.

Barak kept on quoting himself and his decisions and using the word "constitution" when Israel has no constitution. He sounded pitiful. He even said that Posner was in a sense justifying Nazi Germany because they also ruled themselves by law.

I saw Caroline Glick there and I hope she really tears into Barak, too.


Anonymous said...

A couple of points that you seemed to have missed:

1. Although the people who all got themselves thrown out of the hall were anti-israel idiots, towards the end of the program, some nebuch idiot screamed out,"and what about the human rights of the gush katif evacuees?" He was begging to get himself thrown out as well.
I think by that time security had had enough, and basically just told him to shut up.

2. You are unequipped criticize Barak's legal theory because you don't understand it.
I'm not advocating that everything he does is proper, however, there's a lot you don't understand.
Barak did not sound pitiful when using the word constitution, because he (and the current supreme court justices) believes that there is a constitution.
And if he thinks there's a constitution, then believe me, there's a constitution.
There was a constitution even before the passing of the basic laws (what he calls a חוקה מהותית)- for example, the right to free speech was famously upheld in the Kol Haam case, by none other than American oleh, Chief Justice Shimon Agranat.
Once the Knesset passed Basic Laws preserving certain rights, that became the Israeli constitution (called the מהפכה חוקתית. Google it.)
The fact is, that Barak and Posner live in different societies, as they each stressed, and what's appropriate for one society is not necessarily appropriate for another. I'm not sure why you don't simply take them at their words for that.

YMedad said...

Dear Jerry, yes I did miss a few things but as it was late and I usually write pithily, that's what happens. Did you notice that neither speaker saw any need to refer to any specific Jewish sources when referring to human rights, justice, fairness, etc.? Barak's negligible "Jewishness" character in his legal philosphy and practice is notorious. And this is the "Jewish, democratic" state that Barak , under duress, is willing to agree to. He is a brilliant thinker and a sham. Israel has no constitution. What it does have are Supreme Court usurptions of interpretation, at times, against the intention of the lawmaker. The arrogance of his "enlightened" doctrine is a form of minority rule. Anyone who has read anything about the debate in Israel on judicial activism (and I have, "unequipped" as you see me) or these two articles by Evelyn Gordon here
and here for example, as well as having heard Ruth Gavison and read Zev Segal and spoken at length with Mordechai Kremnitzer and Aviad HaCohen, as I have, as well as having a dauhgter who practics what one could call constitutional law as well as having appeared in court cases before Barak and others of Bagatz, believe me, I know what I write. I do understand.

Barak was "cut off at the knees" last night. Posner's reference to "mystification" was lovely as well as his "we judges have no expertise but the law" was also a slash.

Take the Temple Mount case: the judges at Bagatz, and not only Barak, created a legal fiction called "sensitivity". Despite the law explicitly permitting a human rights element of freedom of worship, the judges disallowed that in the name of "sensitivity". That is judicial corruption. Once the law defines a location as "holy", it is obvious to anyone, even without a law degree, that the right of worship (not unlimited, but exisiting) needs to be fulfilled. Bagatz says "no", "nada". Who rules - the law or the judge?

I'll stop now.

Anonymous said...

Firstly, I didn't mean in any way to insinuate that you might be unequipped to deal with issues that you brought up. I read over my post, and I see that I didn't word it as I should have. I apologize. I don't know you, but from a quick perusal of your writing, you seem to be equipped to speak about many issues, not only constitutional democracy.

A couple points about Barak-
I actually once had the opportunity to ask him why he doesn't quote Jewish law in his decisions, and why he doesn't hold of a more Jewish flavor for the Jewish state (which Barak would agree to not only under duress- the Jewishness of the state is clearly stated in the preamble to the basic laws. No supreme court judge could ever take that away).
He said that he simply doesn't know that much about Jewish law or traditional Judaism.
Now, this answer shouldn't really suffice. If he thought it was important, he should learn about it. Ask Judge Elon, who he sat next to for so many years.
It may have just been an excuse, but he wouldn't dare say that he doesn't believe in the Jewish nature of the state.
In fact, I believe that he expressed his agreement for Elon's decision regarding end of life issues, where Israel has her own take, which is in opposition to that of most modern states.

As for the Constitution issue- I certainly understand why one would think that Barak is overstepping his bounds as a judge.
However, he sees the role of a judge as one who protects minorities from oppression by a democratic majority.
In most cases, this is done by a constitution which the judges simply uphold. however, in Israel, without a document that one could definitively call a constitution, minorities rights are in danger.
It is for that reason that Barak feels the need to create/expand a constitution which has not been created where it should be- in the legislature.
In a democratic society, there simply must be freedom of speech. If the knesset has never passed a law saying such, can you possibly argue that a judge is overstepping his bounds to uphold that freedom?
I can't imagine you could.
And regarding the sensitivity issue, firstly, it is not a creation of the Bagatz, rather European. With our reference point being the US, it is very difficult to understand how sensitivities should be taken into account when rights are involved. However, please recall that it goes both ways. Sensitivity is the reason we will restrict freedom of movement and not allow cars on rechov Bar-Ilan at certain times on shabbat. Sensitivity also led to a film not being allowed to be screened in German on Israeli TV not long after the Holocaust.
I think that most people can understand the volatile nature of our little state, and that sensitivity for others will sometimes mean curbing certain rights can be appropriate. Just remember it goes both ways.
And while one can certainly argue that Barak looks out more for the rights and sensitivities of the Arab minority, the simple reason for that is because they are the ones who are in danger of having their rights quashed. If the Jewish majority doesn't like a given situation, or even a decision made by the court, they can always change it through legislation.
The minorities don't have that luxury.

p.s. if memory serves (and i could be wrong), didn't Elyakim Rubenstein sit on the most recent temple mount case, and join with the verdict?

YMedad said...

Btw, here's Caroline Glick's take on it:

The debate, sponsored by the Shasha Center for Strategic Studies, was titled "Can Democracy Overcome Terror?"

There, retired Supreme Court president Justice Aharon Barak, who founded this view, was pitted against Judge Richard Posner, from the US Court of Appeals in Chicago. It was a fair match. For the American legal community, Posner's intellectual standing is equal to Barak's in Israel.

Quoting extensively from his own judgments, Barak explained his view that the duty of a judge is to protect democracy. Barak defined this role as protecting human rights, justice and fairness.

In his view, there is a constant tension between human rights and a state's security considerations. The fact that judges in Israel are not elected insulates them from public sentiment, which Barak noted is nearly unanimous in times of terror and war. Barak asserted that no distinction should be made between human rights in wartime and human rights in peacetime. If restrictions are placed on human rights in wartime, he warned, they will serve as dangerous precedents in peacetime.

Moreover, Barak explained that judges must intervene in real time in executive and military decisions even when those decisions are reasonable. As defenders of human rights, judges, he claimed, are better situated than politicians and military commanders to distinguish right from wrong.

Posner disputed all of Barak's positions. He argued that judges have no special expertise to determine norms and values. In his words, "I try to avoid using words like justice, fairness and human rights. I don't like these words because they are empty and used as substitutes for grappling with hard realities." Given their ignorance of military affairs, judges should be modest in their judgments.

Posner also objected to Barak's description of democracy. Democracy, he explained, is simply the rule of the majority. And judges limit democracy by checking the actions of the elected legislative and executive branches in government. They, in turn, protect democracy by checking the actions and limiting the scope of judicial oversight. Unlimited judicial independence, Posner argued, is tantamount to the overthrow of democracy in favor of judicial tyranny.

Then too, Posner rejected Barak's distinction between security considerations and human rights. The most basic human right, he argued, is the right to security - which is a collective right. And since security is a human right, it cannot be weighed against other human rights.

Finally, Posner strongly disputed Barak's assertion that limitations of rights during wartime impact those rights in peacetime. Citing example after example from American history, Posner demonstrated that limitations placed on rights in times of war were abrogated when the wars ended and never served as peacetime precedents. (over here)

And Dr. Klein's take is here

As for Rubinstein, he's also the Atty-Gen who told Sharon that he is basically helping the Pals. 'kick the history' of the Jewish people in relation to the Temple Mount.

So, no, I don't accept your critical remarks and am set with Barak, and my other opinions.

mnuez said...

Ah, to have no intellectual allegiances...sucks. A right-winger can be happy sometimes, a left-winger too, but one who belongs to no tribe but that of his reason?? As he rejects the invincibility of others, so do they reject him as well. alas...

All of which is meant to say that I dislike Barak and Posner. Not a personal level you understand, but on a professional level. Most of the Right's criticisms of Barak are valid and most of the Left's criticisms of Posner are on-the-mark too!

One of these days I think I'll just flip a coin and decide what team to join.

Membership has its privileges.