JUDGE BARAK,
EGALITARIANISM, AND THE RULE OF LAW
By
Professor Paul Eidelberg
May
24, 2002
NewsWithViews.com
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.
