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Enlightened Despot

Richard A. Posner is a judge on the U.S. Court of Appeals for theSeventh Circuit and a senior lecturer at the University of ChicagoLaw School.

The Judge in a Democracy By Aharon Barak

(Princeton University Press, 332 pp., $29.95)

Aharon Barak, a long-serving justice (eventually the chief justice)of the Supreme Court of Israel, who recently reached mandatoryretirement age, is a prolific writer, and this is his most recentbook. It is an important document, less for its intrinsic meritsthan for its aptness to be considered Exhibit A for why Americanjudges should be extremely wary about citing foreign judicialdecisions. Barak is a world-famous judge who dominated his court ascompletely as John Marshall dominated our Supreme Court. If therewere a Nobel Prize for law, Barak would probably be an earlyrecipient. But although he is familiar with the American legalsystem and supposes himself to be in some sort of sync with liberalAmerican judges, he actually inhabits a completely different--and,to an American, a weirdly different--juristic universe. I have mydifferences with Robert Bork, but when he remarked, in a review ofThe Judge in a Democracy, that Barak "establishes a world recordfor judicial hubris," he came very near the truth.

Barak is John Marshall without a constitution to expound--or to"expand," as Barak once revealingly misquoted a famous phrase ofMarshall's ("we must never forget it is a constitution that we areexpounding"). Israel does not have a constitution. It has "BasicLaws" passed by the Knesset, Israel's parliament, which Barak hasequated to a constitution by holding that the Knesset cannot repealthem. That is an amazing idea: could our Congress pass a lawauthorizing every American to carry a concealed weapon, and theSupreme Court declare that the law could never be repealed? Andonly one-quarter of the Knesset's members voted for those laws!

What Barak created out of whole cloth was a degree of judicial powerundreamed of even by our most aggressive Supreme Court justices. Heputs Marshall, who did less with more, in the shade. (He borrowedfrom Marshall the trick of first announcing a novel rule in a casein which he concludes that the rule does not apply, so that peopleget accustomed to the rule before it begins to bite them.) Amongthe rules of law that Barak's judicial opinions have beeninstrumental in creating that have no counterpart in American laware that judges cannot be removed by the legislature, but only byother judges; that any citizen can ask a court to block illegalaction by a government official, even if the citizen is notpersonally affected by it (or lacks "standing" to sue, in theAmerican sense); that any government action that is "unreasonable"is illegal ("put simply, the executive must act reasonably, for anunreasonable act is an unlawful act"); that a court can forbid thegovernment to appoint an official who had committed a crime (eventhough he had been pardoned) or is otherwise ethically challenged,and can order the dismissal of a cabinet minister because he facescriminal proceedings; that in the name of "human dignity" a courtcan compel the government to alleviate homelessness and poverty;and that a court can countermand military orders, decide "whetherto prevent the release of a terrorist within the framework of apolitical 'package deal,'" and direct the government to move thesecurity wall that keeps suicide bombers from entering Israel fromthe West Bank.

These are powers that a nation could grant its judges. For example,many European nations and even some states in the United Statesauthorize "abstract" constitutional review--that is, judicialdetermination of a statute's constitutionality without waiting fora suit by someone actually harmed by the statute. But only inIsrael (as far as I know) do judges confer the power of abstractreview on themselves, without benefit of a constitutional orlegislative provision. One is reminded of Napoleon's taking thecrown out of the pope's hands and putting it on his own head.

Barak does not attempt to defend his judicial practice by referenceto orthodox legal materials; even the "Basic Laws" are mentionedonly in passing. His method, lacking as it does any but incidentalreferences to enacted provisions, may seem the method of the commonlaw (the judge-made law that continues to dominate many areas ofAnglo-American law, such as contracts and torts), except thatcommon-law rules are subject to legislative override, and his rulesare not. The significance of this point seems to elude him. Hetakes for granted that judges have inherent authority to overridestatutes. Such an approach can accurately be described asusurpative.

Barak bases his conception of judicial authority on abstractprinciples that in his hands are plays on words. The leadingabstraction is "democracy." Political democracy in the modern sensemeans a system of government in which the key officials stand forelection at relatively short intervals and thus are accountable tothe citizenry. A judiciary that is free to override the decisionsof those officials curtails democracy. For Barak, however,democracy has a "substantive" component, namely a set of rights("human rights" not limited to political rights, such as the rightto criticize public officials, that support democracy), enforced bythe judiciary, that clips the wings of the elected officials. Thatis not a justification for a hyperactive judiciary, it is merely aredefinition of it.

Another portmanteau word that Barak abuses is "interpretation,"which for him is remote from a search for the meaning intended bythe authors of legislation. He says that the task of a legislaturein passing statutes is "to bridge the gap between law and society,"and that the task of the judge in interpreting a statute is to"ensure that the law in fact bridges the gap between law andsociety." This is very odd--isn't the statute the law, rather thanthe intermediary between the law and the society? What he seems tomean, as further suggested by his statement that "whoever enforcesa statute enforces the whole legal system," is that a statuteshould be interpreted so that it is harmonious with the spirit orvalues of the legal system as a whole, which as a practical mattermeans with the judge's ideal system, since no real legal system hasa unitary spirit or common set of values.

This understanding of Barak's approach is further suggested by hisstatement that a judge, in addition to considering the language andbackground and apparent purpose of a statute, should consider its"objective purpose ... to realize the fundamental values ofdemocracy." This opens up a vast realm for discretionary judgment(the antithesis of "objective"); and when a judge has discretion ininterpreting a statute, Barak's "advice is that ... the judgeshould aspire to achieve justice." So a regulation that authorizesmilitary censorship of publications that the censor "deems likelyto harm state security, public security, or the public peace" wasinterpreted by Barak's court to mean "would create a near certaintyof grave harm to state security, public security, or public peace."It is thus the court that makes Israel's statutory law, using thestatutes themselves as first drafts that the court is free torewrite.

Barak invokes the "separation of powers" as further support for hisaggressive conception of the judicial role. What he means byseparation of powers is that the executive and legislative branchesare to have no degree of control over the judicial branch. What wemean by separation of powers, so far as judicial authority isconcerned, is that something called the judicial power of theUnited States has been consigned to the judicial branch. Thatdoesn't mean the branch is independent of the other branches. Ifeach of the powers (executive, legislative, and judicial) wereadministered by a branch that was wholly independent and thus couldignore the others, the result would be chaos. The branches have tobe mutually dependent, in order to force cooperation. So"separation of powers" implies "checks and balances," and thejudicial branch has to be checked by the other branches, and notjust do the checking. And so rather than our judiciary being aself-perpetuating oligarchy, the president nominates and the Senateconfirms (or rejects) federal judges, and Congress fixes theirsalaries, regulates the Supreme Court's appellate jurisdiction,decides whether to create other federal courts, determines thefederal judiciary's budget, and can remove judges by means of theimpeachment process. Moreover, the judicial power of the UnitedStates can be exercised only in suits brought by persons who havestanding to sue in the sense of having a tangible grievance thatcan be remedied by the court. And because the judicial power is notthe only federal power--there are executive and legislative powersof constitutional dignity as well--the judiciary cannot tell thepresident whom to appoint to his cabinet.

In Barak's conception of the separation of powers, the judicialpower is unlimited and the legislature cannot remove judges. (Andin Israel, judges participate in the selection of judges.)Outfitted with such abstractions as "democracy," "interpretation,""separation of powers," "objectivity," "reasonableness" (it is "theconcept of reasonableness" that Barak would have used to adjudicatethe "package deal" for the release of the terrorist), and of course"justice" ("I try to be guided by my North Star, which is justice. Itry to make law and justice converge, so that the Justice will dojustice"), a judge is a law unto himself.

Barak's jurisprudence may seem to hold no interest for Americansother than as an illustration of the world's diversity. But in factit has important implications for the controversial issue ofwhether American judges should cite foreign cases as authority. Imust explain what I mean by "as authority." There is no objectionto citing a foreign judicial opinion because it contains an insightthat bears on the case at hand, just as one might cite a book or anarticle. But that is different from treating the foreign decision asa "precedent," in the legal sense of a decision that has weightirrespective of the cogency of its reasoning. Some American judgesthink that just the fact that a foreign court has decided a case ina certain way is entitled to some weight in deciding a similarAmerican case. So if a foreign supreme court has held thatexecuting juvenile murderers is unconstitutional, its decision,even if not impressively reasoned, is one more twig to place in oneof the pans of the scales of justice.

But what we learn from Barak's book is that some foreign legalsystems, even the legal system of a democratic nation that is aclose ally of the United States, are so alien to our own systemthat their decisions ought to be given no weight by our courts.American judges distinguish between how they might vote on astatute if they were legislators and whether the statute isunconstitutional; they might think it a bad statute yet uphold itsconstitutionality. But in a Barak-dominated court, it would be verydifficult to tell whether a judgment of unconstitutionality wasanything more than the judges' opinion that it was a dumb statute,something they would not have voted for if they were legislators.And such an opinion would have no significance at all for thequestion of constitutionality.

When Robert Bork attributes "judicial hubris" to Barak, he is usingas his benchmark the American system. Many Israelis think Barakhubristic, but whether he is or is not in the Israeli setting isirrelevant to Bork's judgment. All Bork means is that a judge whothinks like Barak is playing outside the boundaries within whichAmerican judges operate. Not that there are no hubristic Americandecisions, of course; but their authors make some effort to tetherthem to orthodox legal materials, such as the constitutional text.The tether is long and frayed when, for example, a judge decidesthat criminalizing abortion, or refusing to grant a marriagelicense to a homosexual couple, is a deprivation of liberty withoutdue process of law. Such decisions could be thought lawless in thesense that the judge is making a discretionary judgment that owesnothing to an authoritative text and everything to the judge'spersonal values. So there is a sense in which Barak merely carriesto its logical extreme a tendency discernible in our courts. It isa matter of degree, but at some point a difference in degree canrightly be called a difference in kind.

Barak's book is not introspective. He purports to derive hisjudicial approach from the abstractions that I mentioned, but theycannot be the real source of his jurisprudence, because they are asempty as they are lofty. In places the book is naive, as when Barakwrites that "other branches [of government] seek to attainefficiency; the courts seek to attain legality." Or when, indefending a ruling made during the Gulf war in 1991 requiring theIsraeli army to distribute more gas masks to residents of the WestBank, Barak says that "we did not intervene in militaryconsiderations, for which the expertise and responsibility lie withthe executive. Rather, we intervened in considerations of equality,for which the expertise and responsibility rest with thejudiciary." Yet the book strongly commends the balancing ofcompeting interests as a technique of judicial decision-making,implying that in the gas- mask case the court should have balancedagainst considerations of equality whatever military reasons thearmy gave for distributing fewer gas masks on the West Bank than inIsrael proper, such as that Iraq was more likely to aim itsmissiles at Jews than at Arabs. A few pages after the gas masksBarak writes inconsistently that when deciding whether toinvalidate a security measure, "the court asks if a reasonableperson responsible for security would be prudent to adopt thesecurity measures that were adopted."

The book is, in fact, rather unsophisticated, as if written for anonprofessional audience. (It is also riddled with minor errors,such as renaming me "Robert Posner.") But it has some good points,such as its discussion of the things besides justice that judgesshould consider in interpreting a statute, bridging that mysteriousgap between law and society, and objective purpose "at the highestlevel of abstraction" (the level at which the objective purpose isto realize the ideals of democracy). And the chapter on terrorismthat I have just been criticizing rightly observes that judicialdecisions restricting civil liberties in wartime may serve asprecedents for restricting such liberties in peacetime, which tosome extent has happened in the United States since September 11,and also that we do not need two systems of balancing security andliberty, one for wartime and one for peacetime--we can use onesystem, while recognizing, as Barak to his credit does, thatsecurity does have more weight in time of war. Nor do I mean tosuggest that Barak's judicial oeuvre as a whole is hubristic. The"Basic Laws" may not be a constitution, but they provide anadequate textual basis, even in American terms, for decisions thatBarak has written forbidding discrimination against homosexuals andagainst Israel's Arab citizens.

And whatever the weaknesses of the book, Barak himself is by allaccounts brilliant, as well as austere and high-minded--Israel'sCato. Israel is an immature democracy, poorly governed; itspolitical class is mediocre and corrupt; it floats precariously ina lethally hostile Muslim sea; and it really could use aconstitution. Barak stepped into a political and legal vacuum, andwith dash and ingenuity orchestrated a series of (in LaurenceTribe's words on the dust jacket) "surprisingly agreeableoutcomes." He was a legal buccaneer, and maybe that was what Israelneeded. But there is not a hint of an acknowledgment of this in thebook. Barak writes not only without self-doubt, but also without asense that his jurisprudence may reflect local, as well aspersonal, conditions. (He survived the Holocaust as a child inLithuania, and this may help us to understand a position of histhat would be thought unacceptably illiberal in the United States:that no member of an anti- democratic party can be permitted tostand for election to the Knesset, since the Nazi Party came topower in Germany democratically.) He pities our Supreme Courtjustices their timidity. No wonder he frightens Robert Bork.

By Richard A. Posner