Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

6 Tammuz 5761 - June 27, 2001 | Mordecai Plaut, director Published Weekly








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Shema Yisrael Torah Network

Opinion & Comment
If this is not Judicial Imperialism, What Is?

by Rabbi Nosson Zeev Grossman

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.

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