Thursday, December 28, 2006

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.


Richard said...

"ex ante" and "post facto" are not parallel, in that 'ex' and 'ante' are both prepositions, whereas 'facto' is a noun, and the object of 'post' (another preposition).
Thus you have "from before ___" and "after [the] fact."

There is a principle that we are treated how we let people treat us. Having no information on the subject outside this post, my analysis says that because the K'nesseth does not do anything about the situation, the Court continues to take more power for itself.

mike said...

But what if amending the law goes against the spirit of the basic law than the Supreme could strike down the amendation and it becomes a snoake eating its tail situation.

Tobie said...

Richard- I don't speak Latin, but I feel as if I am using those terms more or less in accordance with general law usage. And I think that Knesset's inaction and the court's overaction may both stem from a single common cause- their judicial philosophy, the general society structure, or something- as well as feeding off of each other.

mike- it might be, but then wouldn't the amendment be part of this constitutional basic lawness? not like it's ever going to happen, but the idea is interesting.

mike said...

Tobie how could it be part of the basic law if it goes against the Basic Law. You've got a lot to learn as a lawyer.

David said...

At least in America, a lot of times it is hard for the courts to be subservient to the legislature when the legislature is obviously stupid so often. The partial-birth abortion law is a good example, where the legislature included "legislative findings" that the procedure was never medically necessary and was not actually taught anywhere. These assertions are manifestly false. What is the court supposed to do in such a case?

There are other instances of legislators approving a law which they publicly acknowledge to be flawed, because they publicly profess that the courts will fix it. Again, can the courts really be expected to be subservient to this nonsense?

Tobie said...

David- That's rather the paradox of the judge- he may well know himself to be ever so much more clever than the legislature- and there's no denying that he really is smarter and probably better at making up law- but nonetheless, that's not his job. And I'm sure it's terribly annoying when you know that the legislature is stupid, but doesn't ignoring the bits of legislation that you find stupid simply destroy any theoretical seperation of powers? And when you're neither elected nor subject to any popular impeachment or unelection, than your ignoring legislation carries the more important problem of destroying democracy.

As for the specific examples, I agree that as a judge, I would be tempted to subvert the law to my private purposes. And when the law blatantly contradicts reality, it might practically speaking be difficult not to. And it's quite probable that I wouldn't withstand the temptation to do so myself. But a few relevant points 1) what a few "lawmakers" publicly acknowledge may not be reflective of the whole or even of a majority of the legislature. 2) If judges would stop being so interventionalist, I doubt legislatures would continue to rely on them to fix up laws. 3) Most laws are not that extreme. Often, they are perfectly decent laws that simply fail to reflect the values that the judge prefers.

rachelsoloveichik said...

The beautiful thing about democracy is the fundamental fairness. In other words, if a stupid law exists, then it's the fault of the legislature. And ultimately the people pick the legislature - so it's their own fault. On the other hand the stupidity of unelected judges aren't the fault of anybody except themselves

Suffering for your own stupidity and laziness is morally acceptable in a way that suffering for other's stupidity is not. For example Israel's high taxes might have lots of bad consequences - but it's not my problem. If the people mind they could change the taxes in an instant.

Right to Silence said...

Speaking as a lawyer I rather prefer the Israeli debate to the English one. In the English system everything is done as a discussion of precedent - creating the impression that the Courts merely interpret the law. But that impression is false - The Courts are just as capable as rewriting legislation to suit as any other courts. And the urge to refrain from that varies from Judge to Judge.
In Israel (and Canada and Australia - don't know enough about the US) the same discussion takes place against a backcloth of public policy and balance. The fact that a court's decision might change the law only LOOKS more obvious. And it is more honest - if the legislature wants to change the result it need only legislate.
No legal system suggests that when a statute is ambiguous the question ought to be referred back to the legislature. Every Court interprets law and the gap between interpretation and creation is often unrecognisable. If the government doesn't like what the Courts do to its legislation they should draft it more carefully. In England the drafting nowadays is usually pretty rubbish - tough.

Tobie said...

Rachel- In a more broad sense, I suppose that the Israelis are plenty responsible for all of the problems with the judiciary, if only because nobody has done anything or even seems to want to do anything about the system. I doubt, of course, that the average Israeli knows much about the judiciary or wastes time caring, but I do wish that the Knesset would be different.

Right- Of course every system of judiciary is going to be interpretation, and that interpretation necessarily is going to be a matter of values and public principles. Nevertheless, I would suggest that there is quite a sizable gap between interpreting ambiguities in the law in a reasonable way, such that it conforms with your values, and out-and-out transforming every possible legal opening into a vehicle for your policy changes. For example, I cannot imagine a serious legalist in America saying that if the legislature does not change the system that they put in place for family law, then the judiciary should. In Israel, on the other hand, the statement was tossed out off-handedly and nobody seemed shocked, dismayed, or even impressed. And that is the attitude which ignores me.

Naturally, much of the blame must also fall upon the legislature. I'm afraid to say that I share much of the judiciary's distaste/distrust with the Knesset; I also see them as a bunch of feuding factions. It may be due to Israel's unique and constant set of more dire emergencies, it may have something to do with the national temperment, it may simply be a result of a country that has been going for almost sixty years without any official constitution or anything else to set what should be happening, once and for all, but for whatever reason, I don't consider the Knesset a very effective or safe legislative body either. However, a) they're all we've got, and they're who the people choose to elect, so let's deal with that, and b) if the judiciary is going to be entrusted with massive legal power and basically become the source of law, then at the very least, they ought to be elected so that their agendas can in some small way reflect national opinion. Because no matter how hard they try to keep balance (they have their religious seat, their Arab seat, and so forth) and no matter how hard they say that they will weigh public values rather than their own (Barak's motto), they are still going to be a self-perpetutating oligarchy and I really, really, don't trust the entire legal system in their hands.

David said...

The problem is that there's often a big difference what the courts and legislator should do in theory and what the roles the find themselves in compel them to do. Typically, judges are more educated and more insulated from the political process than legislators, while legislators are often political hacks and/or demagogues. Also, the legislature "goes first", meaning that it is possible for them to pass laws for symbolic and crowd-pleasing reasons while the courts actually have to pull the trigger. The court simply is not going to enforce a bad law because "that's the way the system is supposed work"

Tobie said...

Typically, judges are more educated and more insulated from the political process than legislators, while legislators are often political hacks and/or demagogues.

Well, yes, but another way of expressing that could be "judges are unelected representatives of the intellectual elite, while legislators actually gain office through a democratic process".

I'm sorry, but what exactly gives the courts unilateral power to decide that a law is "bad" and should not be enforced, despite the fact that the legislature was very clear about its desire? If it wants to go the unconstitutional path, that's one option, though a tricky one in Israel, but other than that, there is simply no justification for the courts to trump the legislature. Which is what you're advocating- not interpreting creatively, even, but simply waving your magical judicial hands, declaring a law bad, and ignoring it. That scares me.

Shmuli said...

"judges are more educated"

Why would you say such a thing? Because all judges have law degrees and legislators only overwhelmingly do? In any relevant way, the judiciary is the least educated branch of government in the US. The Legislative and executive branches make much greater use of a novel method called "specialization". I remember my tax law professors constantly complaining how the Supreme Court mucks up tax law because none of the infallible nine understands the area. The same cannot be said of the senior members of the Congressional tax committees or the equivalent personnel in the Treasury.
The US judiciary seriously aggravates the situation by staffing itself with a bunch of neophytes right out of law school. Congressional staffers are generally far more experienced and far more expert in their duties. The same is true of the executive branch.

mike said...

David judges are frequently demagogues and hacks as well. You talked to Dad lately about it?

Tobie said...

mike- that comment came out rather wrong, and besides, I'm not entirely sure whether this david is the one of whom you are thinking.