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, that denigrates the ideals and the 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.” 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. 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. 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 United States 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 by loyalty to the Democratic Party. This “enlightened” minority has a major influence on U.S. courts, although no U.S. judge has been as imprudent as Barak in articulating that fact.
Post-Zionism appears to be the Israeli version of the counterculture prevailing among the 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 U.S., Canada, and Europe, a culture war is raging and, as in those countries, the courts take the side of the New Class minority against the general public. Judicial activism and the culture war go hand in hand, and the enlistment of the 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.” I once wrote of the U.S. Supreme Court that a judge who looks outside the actual Constitution looks inside himself and nowhere else. 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; so, ultimately, may be Israel’s survival.
Perhaps the most significant immediate outcome is that, in the face of potential Supreme Court review, the Knesset is loath to pass laws that, in its judgment, 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. The comparison is especially relevant because the Charter served Israel as a model for some of the key provisions in the 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 aspect 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 fully to comprehend what has happened; the influence of elite groups favoring judicial policy-making; a feeling that the Knesset is so politically riven as to be ineffective; and the cult of the robe: the Court’s reputation as a nonpolitical body deciding fundamental matters on principle rather than from expediency or personal predilection.
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. 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 on matters 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 as a threat to citizens’ power to decide for themselves how their country should be run. Once more, a protest against any criticism of the Court erupted and a former Supreme Court Justice said that he was scandalized that anybody had “dared to speak harshly against the Supreme Court.” 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, to do so, would infringe on the 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 publicized 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 pales 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 the values to be applied as those of Israel as both a Jewish and democratic state, is gradually producing an Israel that is neither Jewish nor democratic.
1 The Israeli Court sits as either the Supreme Court or as the High Court of Justice. The latter hears petitions for the redress of grievances brought against the government. It is a court of first instance, or original jurisdiction: cases are brought directly to it rather than coming up on appeal from lower courts. The distinction between Supreme Court and High Court is irrelevant to much of the discussion here and, for convenience, the text will often refer simply to the Supreme Court.
2 The Basic Law follows the pattern of the Canadian Charter of Rights and Freedoms, stating rights in unqualified language and then, since government would be impossible if all rights were absolute, stating the conditions on which the rights may be limited.
3 In the United States, a similar sentiment led to the creation of the Office of the Independent Counsel, charged with investigating and, if warranted, prosecuting high executive branch officials. Like Israel’s attorney general, the independent counsel was accountable to no elected official. The innovation proved unsatisfactory to both political parties, particularly when the executive of their own party was subjected to the independent counsel’s ministrations. The office has been allowed to lapse unmourned.
4 The U.S. Office of the Independent Counsel was similarly an invitation to political abuse; some independent counsel resisted the temptation; others embraced it. One counsel, for example, filed a written report stating that, though he declined to indict, he believed a nominee to the post of attorney general had violated the law. Another probably influenced the choice of a president when, just days before the election, he filed an indictment of an official which noted, gratuitously, that he thought George Bush, the incumbent president, knew more than he admitted about supposed illegalities.
5 The United States has addressed a similar difficulty with respect to electronic surveillance in national security cases by creating a special court, whose proceedings are secret, to grant or deny applications for warrants to conduct such surveillance. Though this is not, and for obvious reasons, cannot be an adversarial proceeding, it does provide supervision by an independent judiciary that can take into account in advance the particular facts of each case.
4
THE
INTERNATIONALIZATION
OF LAW
In less than a decade, an unprecedented concept has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subject to systematic debate, partly because of the intimidating passion of its advocates. … The danger is that it is being pushed to extremes which risk substituting the tyranny of judges for that of governments; historically the dictatorship of the virtuous has often led to inquisitions and even witch hunts.
Henry Kissinger
The internationalization of law is happening with phenomenal speed and comprehensiveness. With that development comes law’s seemingly inevitable accompaniment: judicial activism. For some, usually those on the left, internationalism appears to be almost unalloyed good. The use of armed force between nations, it is said, must be tamed by being brought within a rule of law. The violation of human rights by nations against their own citizens must be diminished or ended by holding the perpetrators responsible in international tribunals or, in some cases, in other national court systems that are willing to take jurisdiction. International codes of individual freedom, similar in intention to the United States’ Bill of Rights, are enacted to protect persons from majoritarian rule.
To many people these goals seem entirely laudable, and so they would be if the realities lived up to the abstractions. But that outcome is impossible. Instead, internationalization will magnify many times over the defects already identified in the constitutional law of the United States, Canada, and Israel: the loss of democratic government, the incursion of politics into law, and the coerced movement of the culture to the left. The New Class is an international class and it displays its socialist impulse everywhere while waging an international culture war. The internationalization of law is one way of transforming parallel struggles in the various nations of the West into a single struggle waged across national boundaries. The explanation for this internationalization of law may contain an even more sinister element. The New Class in the United States has failed to press its full liberal agenda in Congress, the state legislatures, and, to some extent, in federal and state courts. By creating international law, a project at which it is particularly adept, the New Class hopes not only to outflank American legislatures and courts but to have liberal views adopted at a different level and then imposed on the United States. History shows that the citizens of individual nations have been unable and unwilling to resist the depredations of their national courts. There is no reason to expect they will be able to resist courts that are sitting in foreign countries, composed of judges of several nationalities, and operating under vague humanistic standards to which their own nations have, however ambiguously, pledged allegiance.
It will be possible to discuss only a few examples of judicial activism in the international arena. Conventions and treaties exist on most subjects: human rights; civil and political rights; economic, social, and cultural rights; genocide; racial discrimination; and discrimination against women. In addition to the committees and councils that supervise aspects of these prohibitions and guarantees, several courts have jurisdiction in different areas: the International Court of Justice (World Court); the European Court of Human Rights; the European Court of Justice; and the not-yet-operative International Criminal Court. Given the limitations of a single chapter, the discussion here will center on human rights and the use of armed force between nations.
The internationalization of law and the corresponding internationalization of judicial activism take various forms. The first is the recent tendency of national courts, when applying their own constitutions, to cite the decisions of foreign courts in applying their own constitutions. An allied form is international conferences of judges, professors, and social activists to discuss the means of creating new rights in each nation. One primary example was a conference held i
n London in 1999 to consider ways of making homosexual conduct a constitutional right in various nations.
Some national courts have agreed to try cases involving acts done abroad by foreign nationals against foreign nationals. Thus, some United States courts have accepted the jurisdiction to hear tort claims for actions that have no connection with the United States or its citizens. Other nations’ courts have claimed the authority to apply criminal sanctions to conduct having no relation to their own countries. The most prominent international tribunal in this area is the European Court of Human Rights sitting in Strasbourg.
What is called “customary international law” is used to pronounce judgment on the use of armed force by nations, despite the fact that there is no international law established by custom. If there were, it would not restrain international aggression but unleash it. The Nuremberg trials in the wake of World War II confirmed both the notion of such law and the idea that it represented civilized behavior. Those trials served two valuable purposes: they created a detailed history of the horrors perpetrated by the Third Reich, and they provided moral justification for the imprisonment or execution of those responsible. They should have been left at that, but the winning powers felt a need to justify the proceedings further by claiming that, before the Nazi regime came to power, an international law existed which forbade wars of aggression and the deliberate murder by a nation of its own citizens. No law justified the punishments meted out, though there was a moral necessity for them. The victors lacked the stomach to say that, however. Soon we became addicted to the idea of international law and began the proliferation of what we chose to call “laws” that guaranteed every good thing.
Coercing Virtue Page 12