| Judges may not be Sages |
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| Written by Rabbi Dow Marmur | |
| Friday, 21 December 2007 | |
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Israelis have lived in the shadow of terror since the inception of their state and before. Therefore, there has always been the danger that the rule of law would be held in abeyance out of security considerations. Had that been the case, Israel would long ago have ceased to be a democratic – and thus a Jewish – state. This is the opinion of the former President of the Supreme Court of Israel, Aharon Barak. He believes that, in the unique circumstances that prevail in the Jewish state, the judges must take on the role of custodians of justice, fairness and human rights. It’s not enough in his opinion to let the democratically elected government decide unchecked what needs to be done to protect its citizens, lest this leads to tyranny. He cited Hitler’s democratically elected government in 1933 that nevertheless trampled on justice and human rights to justify genocide in the course of which, among many others, six million Jews were brutally murdered. It’s a bitter illustration of the fragility of democracy which the law must protect. Barak saw himself and his colleagues as such sage protectors. He has written a book on the subject and last night he summarized it in a lecture at the Hebrew University, called, Can Democracy Overcome Terror? Barak’s answer is that it must; that the rule of law that protects human rights must prevail in peacetime no less than in war. Though security considerations must never be ignored, a balance has to be struck between security and freedom, often erring in favor of the latter. Judges must apply the law in all circumstances. When security measures are inevitable, the response must be proportionate, not excessive. The United States, by contrast, has had long periods of peace interrupted by short spells war, such as the Civil War, World War II, the Cold War, and now 9/11. Under such exceptional circumstances it may be proper to suspend or postpone legal action in order to get on with the battle for security and peace. This seems to have been behind the approach of the other distinguished speaker at the symposium, Richard Posner of Chicago, a retired judge and academic. Should Israel learn anything from it? Posner regarded terms like justice, fairness and human rights as abstractions to be avoided. He believed that democracy is the rule of the majority, beyond the provenance of judges, whom he saw as much more fallible and limited than did Barak. The two agreed to differ, ascribing their differences to the different backgrounds in which they practice law. Barak does indeed speak for Israel, yet I wasn’t persuaded. That was hard for me, because I’ve always admired Barak as the defender of Israel’s soul. I now came to realize that perhaps no human being has the right to claim so much sage wisdom and moral rectitude. Or are left-wing prejudices weakening? I’ve now even come to better appreciate why Israel’s present Minister of Justice is trying to curb the authority of the Supreme Court. I’d like to think that it’s not because he wants less democracy but because he wants the elected representatives of the people, not a small coterie of judges, to determine what democracy means. Even before I heard Posner’s response I was disappointed by Barak’s defensive, almost apologetic, tone, citing interminably his own judgments. He has always been my hero. I came away less convinced, despite his passion, erudition and enormous contribution to the State of Israel. Jerusalem 18.12.07 Trackback(0)
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