The High Court's decision and actions with regard to many
issues, including the drafting of yeshiva students, prayer
at the Kosel, and more have had a consistent direction of
undermining the remnant of genuine Judaism that subsists in
public life, and creating new standards, quite dangerous
ones -- all in the name of pluralism.
Many of us are amazed when confronted with such offensive
court decisions. How can a handful of judges have the nerve
to make revolutionary changes that wipe away what is
accepted by most of Israeli society? Such decisions are
likely to spark off a kulturkampf whose end cannot be
foretold.
The answer to these questions can be found in
a speech delivered by Aharon Barak, the chief justice of the
High Court. This revealing speech was delivered when some
new High Court judges were sworn in several years ago.
In a lengthy speech full of explanations, Barak presented
his outlook about the essence of the Israeli judiciary
system in general and the High Court in particular. The
speech detailed explicitly a terrifying picture of the
country being ruled by court dictatorship, allowing the
judges to render decisions on whatever topics they wish. The
magistrates would be allowed to act in such a fashion
because of the arbitrary and unlimited authority that is,
according to Barak, granted to them. They have, he says, the
right to set new social norms without asking the majority,
and sometimes even to set up norms that are opposed to the
nation's will.
This speech has great significance in any attempt to
understand the judicial system which we are forced to
confront at present, and therefore we will cite some
pertinent passages (emphasis supplied by Yated).
First, began Barak, the High Court functions in three
spheres. Besides clarifying facts and reaching judicial
conclusions in accordance with them, it also needs "to
determine the law" -- the court must decide which law
applies to the case appearing before it. When the law is
known and accepted the court has no problem, and then it
serves only as a mouth for the legislative branch. "But,"
continues Barak, "not in all cases is the law like that.
There are `difficult cases' in which the law's meaning is
ambiguous. Sometimes there is more than one legal or
constitutional option, whereby the law can be explained in
more than one way. In such cases, the law declared by the
High Court is also the creation of the law by it. The
law as it is before the judicial decision and afterwards
is not the same. Before the judicial decision, the
law -- even a Basic Law which needs an absolute Knesset
majority to change -- spoke to us with several voices. After
the judicial decision, the law speaks with one voice.
Because of the many possibilities, the transition from
uncertainty to certainty involves not only proclaiming what
the law is but also creating the law itself. The
judge uses his sense of good judgment in creating the law.
The judge is not merely a mirror reflecting the law's image.
He is also a craftsman who creates the picture with his
own hands.
"This creation of law," Barak continues, "can be carried out
by any judge in the judicial system, but it has singular
significance when done by the highest institution of
justice," which stands at this system's summit. "Creating
law" by the High Court "influences society at large and
applies to the general public. It acts as an
inclusive rectifier. It is the creating of law in its
functional sense."
Barak claimed that the High Court must reach many decisions
not only by being a "mouth for the legislative branch" but
by "creating law." The logic behind this perceived license
to create law is "there are judicial problems that have more
than one legitimate solution. The decision among the valid
legal possibilities is made by the High Court through the
system of judiciary, by using their sense of judgment."
Most likely Barak did not feel comfortable
about the reactions that he might reasonably expect. After
all, a claim that the High Court has unlimited authority to
actually create laws that do not exist is liable to
arouse the indignation of any democratic person. His opinion
poses an apparent danger to the authority that is given in a
parliamentary system only to its legislative branch. Barak,
therefore, quickly added that this is not "judicial
imperialism." In his polished style, Barak explained that
there is a need for "flexibility" that transfers the
authority to solve unforeseen problems to the High Court.
But if anyone is not yet convinced that a genuine judicial
imperialism is being formed in front of our eyes, he will
clearly see it in the speech's continuation, which was its
central part.
How can the High Court "create the judicial solution" that
is not found in the legislative framework? The answer is, of
course, by using their "sense of good judgment." The obvious
question is: What guides their sense of judgment? According
to Barak, the judge must be bound by the "fundamental
values" he can infer from other laws and precedents.
"However, above all he learns this from the general
national experience, from the essence of the governmental
system as democratic, and from his grasp of the nation's
fundamental concepts."
If the judge's task is to represent the nation, might it not
be simpler -- and better -- to ask the nation itself through
a public referendum, or by referring the question to the
legislative house chosen by the people themselves? The
judge, however, does not function according to the nation's
desire, but according to what the nation should want,
all according to the judge's opinion and his personal
judgment! The court serves as a mouth "to the neshomoh
yeseirah of the nation," which in Barak's opinion the
judge represents, even when it is certain that most of the
nation disagrees with the judge.
"The values that direct the judge are fundamental values.
They are not the results of a survey to determine public
opinion. It is not an attempt to be popular with the masses.
These fundamental values are not fashions that change," says
Barak. He then clarifies this in a more decisive fashion:
"When society is not true to itself, the judge is not
obligated to express momentary views. He must oppose such
views!"
The court determines, according to Barak, "the basic
principles and the "ani ma'amin" [sic!] of society.
This is the reason that the judge does not have to be
influenced by the desire of the majority of the nation." In
such a case, Barak determines, it remains in the court's
hands to find that "the society is not true to itself" and
then the court must "oppose such views."
If this is not judicial imperialism, then what is judicial
imperialism?
During his speech Barak repeatedly says that
judges have the right to create new decisions that
were not discussed or accepted in any democratic resolution.
In addition, the judge must "adapt the law for the needs of
a changing society," comments Barak. At this point he had to
resort to a convoluted and paradoxical -- if not
contradictory -- line, and he found it. "The law is stable
only when it is in motion. The judge preserves the
stability of the law only when he changes it."
How is a judge able to arrive at decisions and "create laws"
concerning topics about which a democratic decision has not
yet been reached by the majority through the customary
parliamentary way? Here Barak again repeats his precept that
the judge expresses "the long-range beliefs of his society."
He wraps this in additional refined phraseology ("the judge
expresses the values that will eventually form our
constitution as they are understood by the nation's culture
and tradition moving throughout history. The judge expresses
the fundamental philosophies of the nation, the national
`ani ma'amin' ").
His conclusion is that because of a judge's abovementioned
duty, the High Court should be given "the power to declare
any law that opposes our constitution to be null and void.
By being able to annul a law the judge expresses the
profound values of his society, which he wants to
protect even from the power of the majority!"
All know that the Torah-observant do not view
the secular judicial system in general and the High Court in
particular as a true authority that can decide every topic.
This system is not of our choosing and has been imposed upon
us at present. However, this is the reality and we accept
court decisions as long as they do not contradict the
halocho. Our stand is that this judicial system,
which does not make its decisions according to the Torah, is
similar to non-Jewish ones. It is there and it has its
place, but it is not the system of first resort.
But Barak's speech also violated the rules of the game as
played by democracy. Until now the state's democratic
structure allowed the general public to express its opinion
and to advocate its beliefs, and within this framework the
chareidim too have worked to safeguard religious affairs.
In many areas we even have backing from the "silent
majority" of the Israeli populace. These people, although
far from observing mitzvos, want matters concerning
marriage, divorces, and the like to be handled according to
the Torah, as our forefathers have always done. These people
do not see any need to promote the sectarian interests of
Reform clergy, especially since they have very few followers
in Eretz Yisroel. In advancing such matters the High Court
has been acting completely opposite to the nation's desire.
Its rulings about the legitimacy of certain abominable acts
and turning them into an accepted norm are also rejected by
most of the populace.
All of these revolting rulings were made following the
assumption that Barak professes: that a judge is permitted
to change the law according "to the needs of a changing
society" without the need for the accepted democratic
decision. The fact that these rulings infuriate the masses
does not bother him in the least. On the contrary, he is
proud that he can see to it that what he considers "the
profound values of society" will be enacted. Such values, in
Barak's opinion, supersede even the will of the majority.
The moment that the High Court feels that "society is not
being true to itself" it will make sure to "educate" the
nation and oppose it.
What are these "profound values of society?" What is the
"neshomoh yeseirah of the nation" and when does
"society stop being true to itself"? All this will be
decided by two or three people, who will consult only their
exclusive "sense of judgment," even though it disregards the
nation's will and that of its democratically chosen
representatives.
There used to be a bitter joke in totalitarian countries: if
the nation does not like the government, that does not mean
there is anything wrong with the government. It, however,
does mean that something must be changed: it is time "to
change the people."
This sarcastic joke is actually expressed in Barak's speech.
Although he wraps his intent in flowery language and
academic phrasing, his conclusion is similar to the old
joke. He also says that there is no need to pay attention to
the nation's desire. The government (in this case the
judicial system) will determine what is good for them and
will force upon them "profound values" that are not accepted
by the people.
Barak's aims are not only distasteful in
practice, they also teach us about the hypocrisy of
"enlightened secularism." Those heretics do not believe in
the Divine moral values given to us. They profess only self-
made social values, adopted through democratic choice which
expresses man's needs, each person according to his desires
and inclinations. The nation can, therefore, sometimes
change governments and its parliament can annul previous
laws and enact new ones. All is done according to the
changing will of the public. These are the democratic "rules
of the game" which are not at all expected to represent any
absolute supernal truth.
Democracy's aim is to make cooperative life possible,
according to the majority's decision together with
consideration of the minority's views.
Now it seems that the judges, Aharon Barak and his
colleagues, are creating a barren value system, a pseudo-
supernatural system not dependent at all on the people's
will. Barak has his own "Torah" that is mightier than the
opinion of millions of citizens.
Barak himself understood that such a proposition is
problematic, and therefore felt the need to explain why
judges should have unlimited power. So he turns the tables
and says that precisely because a judge is not elected he is
permitted "to resist the day-to-day waves in order to
express society's long-range fundamental objectives, and not
momentary short-range needs." In his opinion, "there is no
one to compare to a judge -- who benefits from independence,
and who is not elected every few years -- for being the one
to properly express the nation's fundamental values. The
judge more than any other . . . is both able and fitted to
express the fundamental concepts of the nation. Being free
of the need to be regularly reelected is precisely what
saves the judge from needing to express transient fashions.
This independence gives him the ability and the power to
express our most profound values, which are sometimes likely
to be unpopular."
In other words, democracy, according to Barak, is by its
very nature and essence problematic, since the
representatives are dependent upon the nation's desires and
must realize their wants. If the democratic process makes
representatives dependent upon the nation's will, and aware
that they must faithfully represent the citizens who elected
them, that is, according to Barak, a most dangerous
situation. In such a case the High Court justices are
needed, since they have "a terrific advantage" in that they
are not chosen by the public. These judges, according to
Barak's approach, can save the nation from itself and bring
it back to its "profound values," which the nation itself is
not aware of, and with which it does not even agree. The
judges can in that case force the people to adopt various
"long- range objectives" even against their will.
The question only remains why there is any need at all for
democratic elections every four years for a parliament to
represent the nation's will. According to chief justice
Barak's claim, it is impossible to rely on these
representatives, since occasionally "society is not true to
itself." Let us cancel the elections and the Knesset, then,
and be satisfied with being ruled by a oligarchy of Barak
and his colleagues. They can sit by themselves and decide
every time what is best for the nation.
Barak's belief in the unlimited power of the High Court aims
at totally demolishing the democratic structure of the State
of Israel. Although we do not see any kedushah in a
parliamentary democracy, it is surely preferable to the
judicial imperialism that Justice Barak is advocating. It is
understandable -- and bitter experience, too, proves it --
that this approach tends to harm religious matters more than
all others. For this reason Barak's speeches and acts in
this area are especially dangerous for the Torah-
observant.
A parliamentary democracy is the "lesser of two evils," a
makeshift compromise that allows us to survive in a secular
state until Moshiach comes and the Creator removes
the non-Torah government from Eretz Yisroel in favor of the
Torah's rule. Through this compromise we are able to
maintain our minimum needs, and to protect what is still
left of genuine Judaism among the general populace against
the attempts of the anti- religious to uproot everything.
However, should the moment ever arrive that Barak's
pretentious approach is accepted, and it is agreed on that
his "sense of judgment" should override the will of the
nation, then we will have a real problem. The problem is, in
fact, liable to become severe in the future because of
Barak's views concerning the separation of religion from the
state. This is, then, not merely the revolting
pretentiousness of one individual who aspires to be the "Big
Brother" of the nation; it is an extremely severe threat to
the existence of religious life in the Holy Land.
