The Barak Convention

Writing this post in the half hour before I have to run to class. So don't except editing or proofreading or any of that fancy-shmany stuff. I just got back from a panel on religion and law that's part of a three day convention celebrating Chief Justice Aharon Barak's retirement (an unfortunate choice of phrasing, I know, but theirs, not mine).

And I have to say- and I preface this with the usual disclaimer that I am in no way an expert on Israeli law, judicial practice, or anything else really- but I have to say that the judicial mindset in this country drives me flipping crazy.

First, a story, or rather a fragment of a memory. I must have been ten or eleven, and my father was telling me about some famous Supreme Court decision or other. He asked me something about how you could derive that Congress has the power to make such and such a law, and I remember answering, "I don't see how you can get that. I want it to be able to and all, but I just don't see how you can get it into the law."

This approach, to my personal disappointment, is becoming less and less popular in America, but in Israel it seems to already be entirely dead. One of the panelists this morning ended her analysis of Israeli family law by saying, "The system needs to be changed. And if the legislature fails to do so, then the court must do it themselves."

What the heck? I mean, what? But that seems more or less to be the Israeli approach. Certainly the approach of Barak himself. Our classes, and certainly our analysis of Barak's decisions, spend a heck of a lot more time on public policy and balance of interests and so on and so forth than the actual law.

And you know what? It's totally fine with me if law professors want to think that way. After all, it's part of their job to approach law ex ante as well as post facto, to analyze what law should be and why it is or isn't and how it got there and where they wish it should go.

But that's not the job for a judge. A judge, in my rather old-fashioned opinion, ought to interpret the law. His first and foremost concern should be what the law actually says. I know this sounds like basic strict-interpretationalist ranting, but it's a concept that so frequently seems to get swept under the carpet amid the philosophy and cost-benefit analyses and whatnot.

And it's not that the judges actually ignore the law. It's just that... it seems almost like an afterthought, the tool through which you can force your personal theory of life onto the populace. The technicality through which your ginormous vision of a brave new world can come into being.

There seems to be to be an infuriatingly elitist/paternalistic attitude on the part of the court. And I can see how there would be. I mean, here you are, a bunch of the smartest people in the country- and you know it- with the best knowledge of how law ought to work and why. In a position to do basically whatever pops into your head, with full knowledge that you're appointed for life by a bunch of other judges that think just like you. Is it really reasonable to expect you to choose to bind yourself with the flimsy threads of the laws that the legislature- a bunch of feuding, illogical politicians- decided to create for you? Is it really reasonable to ask you to refrain from doing what you know would be wiser, more just, all around a better idea, just because the bickering children in the Knesset weren't able to come to the right conclusion? Is it reasonable to expect you to be subservient?

Well, of course, my answer would be yes. That is, after all, your job. As a judge and all. But it's a hard thing to ask, and harder still from people who come from academia and are used to thinking about law as it should be. And even harder when, technically speaking, you haven't got any official sort of document or system that defines what they should or should not do. And, of course, even harder to expect, when you happen to believe that it's your duty to shape the country as it ought to be, law or no law.

And the saddest thing is that you barely see the legislature fighting back. Yes, every here and there they mumble something or clear something up, but in general, they have a frankly annoying tendancy to write laws that just throw up their hands and ask the court to ride in on their white charger and save the day by making up anything that chances to come into their heads.

Now, I don't know what the Knesset meant by the basic law of "The Dignity of Man and his Freedom", but they had to have noticed that the court was taking it and running with it, turning it not only into a constitution, but into a constitution that says practically nothing specific, leaving huge gaping holes in terms of just about everything, that, conveniently enough, get to be filled by none other than the court itself. Now, if I were a legislature who saw that sort of thing happening- and considering the fact that it's just an ordinary law that needs ordinary majority to amend- I would have run back and stuck in a paragraph telling the court to chill.

But the Knesset didn't. I don't know why. Maybe they like having the court solve all their problems, and maybe they have accepted the vision of the court as arbitor of justice and so forth. Maybe they're just tired of a losing battle against the court, and maybe they just have better things to do with their time. I really couldn't say.

But what's created is the very worst, most arbitrary, most well-meaning, and most annoying sort of plurocracy out there. With judges- unelected, unconnected with the popular will, and frankly, not omniscient- holding almost absolute power to shape the society. To turn things like "reasonable man" and "good faith" into towering monsters that level carefully worded laws and guidelines and build in their place beautiful castles in the air where everyone is sweet and lovely and run around singing happy songs of getting-alongness.

And there's a reason why we don't like the idea of absolute power in the hands of an unelected, elite few. And it's not that we might not 100% believe that they are brilliant and well-meaning. But they aren't perfect and they aren't the popular will and they aren't the right way for a country to shape its legal system. And even if they choose, at times, to restrain themselves, and even if the country and legislature choose, at times, to ignore them, it's not the way a democratic society ought to work and it's not the way a system should be. And it really, really annoys me sometimes.