Anne Herzberg on The Judge in a Democracy, by Aharon Barak

, November 4, 2010

Jewish Political Studies Review 22:3-4 (Fall 2010)

“One of the most ridiculous aspects of democracy will always remain… the fact that it has offered to its mortal enemies the means by which to destroy it.” – Joseph Goebbels

Goebbels is symbolic of the Nazi evil, but he identifies a real problem inherent in democracies that the Nazis exploited to seize power in Germany in the 1930s and which ultimately prepared the ground for the Holocaust. Today, with the threat of terrorism, asymmetrical warfare, and globalization, the question of how democratic societies can guard against those who would take advantage of their institutions in order to destroy them, continues to resonate. The conundrum is a fundamental question for Aharon Barak, former president of Israel’s Supreme Court, who personally experienced the horrors of World War II. Barak’s attempt to answer this question is the focus of The Judge in a Democracy.

Barak’s work is the companion to a book with the same title published in Hebrew in 2004,[1] and is largely based on a 2002 Harvard Law Review article.[2] It was written while he was still serving on the Supreme Court and offers insight into his philosophy of adjudication: that the role of the judge is to “bridge the gap between law and society,” through what he deems “purposive interpretation.” He expounds on a range of judicial and constitutional concepts, albeit superficially, including separation of powers, checks and balances, reasonableness, judicial discretion, judicial review, and standing. While Barak refers to many of his decisions from the bench, the book is less about the Israeli experience and more of an overall theory that judges around the world could apply.

An essential aspect of Barak’s ideology, and to which he continually returns in the work, is the centrality of human rights in a democracy. “[W]ithout these rights,” he believes, “we cannot have democracy…democracy loses its soul.” The main task of the judge, therefore, is “to protect and uphold human rights.” He cautions, though, that these rights are not absolute and that the “right of the individual is also limited by the needs of society.”

Judicial Power and Democracy

Barak introduces the essential concept of “defensive” or “militant” democracy.  He recognizes that “human rights are not a stage for national destruction” and that “a constitution is not a prescription for national suicide.” He stresses that democracy’s existence cannot be “taken for granted. We must fight for it.” And he sees judges on the front line of this battle.

In the middle of this discussion, Barak addresses the character of Israeli democracy, namely, that Israel was founded as a state of the Jewish people. He emphasizes that Israel’s Jewish character cannot be separated from the conception of democracy in Israel: “[t]he reason for the existence of the State of Israel is its existence as a Jewish state. That character is central to its existence and is ‘an axiom of the state.’ It is a fundamental principle of our law and our system. We therefore cannot allow a list or an individual seeking to negate this reason and this foundation….” He does not go into further detail on this issue, choosing, as other reviewers have noted, to grant the book a more universal aspect. Given the increasing attacks on Israel’s legitimacy as the homeland for the Jewish people, broader treatment of this basic position would have been welcome.

What is ultimately disappointing about this book, however, is the limited discussion regarding the most controversial aspects of his tenure on the court – and which have cemented Barak’s reputation as one of the world’s leading judicial activists – namely, the implementation of near-limitless judicial review and the elimination of standing requirements. An explanation of how these approaches are consistent with Barak’s views on balancing the rights of the individual with the rights of society is missing. Similarly, there is little substantive treatment as to how such expansive judicial power enhances “defensive democracy,” particularly for those democratic societies confronted by ongoing terrorism and asymmetrical warfare.  Indeed, it could be argued that transforming the Israeli High Court into a court of first instance open to all, albeit for the well-meaning goal of fostering individual human rights, may actually and ironically contribute to the undermining of Israeli justice and the weakening of human rights and democracy.

Barak’s inadequate treatment of these issues is found in chapter 16, “The Problem of Terrorism.” He endorses an “open door,” “real time” policy for the courts because “there are no black holes where there is judicial review.” And indeed, under Barak’s leadership, the court heard hundreds of petitions that in other countries, such as the United States or the United Kingdom, would be deemed nonjusticiable acts of state or political questions.

The Israeli Supreme Court has heard cases on nearly every conceivable issue related to terrorism: due-process rights for terror suspects, interrogations, use of human shields, house demolitions, the route of the security barrier, compensation for wrongful acts of the army. More controversially, however, the court has also reviewed military operations as they were underway and even while the Israeli government was in the midst of conducting political negotiations on the very issues brought before the court.

One of the cases that Barak refers to at several points, Almadani v. IDF Commander in Judea and Samaria,[3] is instructive. The governor of Bethlehem and two Israeli Arab Members of Knesset initiated this case demanding that the IDF provide food and electricity to a group of Palestinians, including thirty to forty terrorists wanted for murder of Israeli civilians, who had barricaded themselves inside the Church of the Nativity. At the time the suit was filed, Israel was in the process of negotiating with the terrorists on precisely these points. The court declined to dismiss the case on grounds of non-justiciability and considered it on the merits.

Barak justifies adjudicating this case in “real time” on the basis of strengthening the “rule of law” and “human rights.” But this general explanation is unsatisfying.  Barak does not refer to specific legal or constitutional principles in support for the micromanaging of military operations or the far-reaching interference into the executive branch (including hampering negotiations intended to bring the dispute to an end!). Nor does he offer more specifics as to what he means by “human rights.” What human rights should a judge take into account when deciding whether to hear such a case on the merits? How should he weigh, for instance, the right to due process of terror suspects versus the right to life of the citizenry threatened by those individuals? Most democracies endorse the concept of “hot pursuit,” which allows for extraordinary means by the executive in cases where a crime is underway or has just been committed (and perhaps all the more so when terrorism is involved). On what legal basis does Barak rely to justify judicial interference at these times? Where should a judge draw the line?

The reader is also left uncertain as to how Barak’s expansive judicial review coincides with his idea of “defensive democracy.” Although he applies this principle narrowly to the exploitation of elections by nondemocratic political parties, it seems that it should apply to all aspects and institutions of democracy.  Do judges need to protect the courts from those who seek to destroy democracy, and in Israel, those who seek to erase its Jewish character? How should such protection be accomplished? Why should combatants in the midst of military action against the state – individuals who Barak rightly acknowledges have no respect for the rule of law and often exploit it – be entitled to benefit from appeal to the Israeli courts to facilitate their ability to fight asymmetrical war?

Nor does Barak offer thoughts on how a democracy should deal with members of the legislature who sympathize with the state’s enemies and may bring “real time” suits in order to undermine the state’s ability to combat terror. What message is sent to terror groups who know they can exploit the courts to delay or even frustrate military operations? Finally, Barak does not appear to address the potential danger to democracy that may result from excessive encroachment by the judiciary into military or executive affairs. Does such interference make it more likely that the military may simply ignore judicial orders after a certain point?

A Supreme Court Open to All

Similar questions arise with respect to Barak’s view that standing requirements (the right to seek judicial enforcement of a claim based on a sufficient interest or connection to the matter in which that claim relates) are unnecessary. Legal commentators note how standing “likely enables better judicial decision-making… allowing judges to craft narrow as-applied relief.” Standing also “conserves judicial resources” and “can reduce conflict between the judiciary and the political branches, particularly the executive branch.”[4] Moreover, the “requirement of actual injury redressable by the Court…tends to assure that the legal questions presented to the court will be resolved…in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”[5]

Why should individuals or organizations that may have no real stake in a case and do not have to live with the consequences of a judicial decision be allowed unlimited access to the courts? In Israel, several organizations that are “repeat customers” at the High Court and are often the most involved in trying to litigate military operations, are also the very same groups that routinely defame the court and the Israeli justice system internationally, particularly in UN frameworks.  Some of these organizations have litigated the same case many times in Israel, only to turn to foreign courts in hopes of obtaining a favorable outcome, because they do not respect Israeli rule of law. And in several instances, these cases have only been kept out of the courts of Canada, the United States, England, or Spain because the judiciary in those countries were willing to apply justiciability doctrines.[6]

In conclusion, The Judge in a Democracy offers a rare glimpse into the workings of one of the most prominent judicial figures. The lack of a real, in-depth discussion of the issues he raises is disappointing, especially because Barak’s most substantial contribution to international legal jurisprudence lies in his efforts to preserve human rights even in the midst of a vicious and ongoing terror war. In his book, Barak often refers to the importance of “public confidence” in democracy and the rule of law. In Israel, however, perhaps because the public frequently sees inexplicable judicial overreaching, it is not always clear whether or not Barak’s approach adequately “bridges the gap between law and society.” At one point Barak laments that “the future does not hold positive developments [regarding public confidence in the judiciary].” Until these questions are resolved, he is probably right.

 

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Notes

[1] Menachem Hofnung, “Review of The Judge in a Democracy,” 16 Law and Politics Book Review 824 (2006), www.bsos.umd.edu/gvpt/lpbr/reviews/previous/2008/01/judge-in-democracy.html. Hofnung’s review compares both works, and he remarks that “the comparison between the two has proved to be an intellectual adventure; one basic text by the same author, written in two languages and addressing two different audiences. The Hebrew version explains Barak’s legal philosophy while speaking to a Jewish audience suspicious of the Court and seeing it as a bastion of western liberal values.” The English version targets an international audience, which sees Israel as a closed society somewhat detached from universal values.

[2] Aharon Barak, “Foreword:  The Role of a Supreme Court in a Democracy,” 116 Harv. L. Rev. 16 (2002).

[3] H.C. 3451/02, http://elyon1.court.gov.il/files_eng/02/510/034/a06/02034510.a06.pdf.

[4] Joshua L. Sohn, “The Case for Prudential Standing,” U. of Memphis L. Rev. 727 (2009).

[5] Ibid.

[6] See Anne Herzberg, “NGO Lawfare: Exploitation of Courts in the Arab-Israeli Conflict,” NGO Monitor Monograph Series (2008, 2d ed. 2010), www.ngo-monitor.org/data/images/File/lawfare-monograph.pdf.

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ANNE HERZBERG, the legal adviser for NGO Monitor, is a graduate of Columbia Law School and was formerly a litigator in New York.

Anne Herzberg

Anne Herzberg, the legal adviser for NGO Monitor, is a graduate of Columbia Law School and was formerly a litigator in New York.