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| Former Israeli Justice, Aharon Barak - inset: Jonathan Rosenblum (Mishpacha) |
Critics of the new government’s proposals for radical reforms to Israel’s judicial system gathered Saturday night to protest for a third consecutive weekend, with a major rally in Tel Aviv and smaller events in other cities.
Police estimated that some 110,000 people gathered on Tel Aviv’s Kaplan Street and at Habima Square, making it the largest protest yet.
My guess is that the vast majority of those protesters are grossly ignorant about their own Jewish identity. They live culturally Jewish lives and in many cases are traditional but do not necessarily see Halacha as required part of their identity. In some cases completely rejecting Halacha as archaic and does not apply today. And never should have.
What was the concern of these protesters? In interviews of individual protestors I saw on the news last nigh, their concerns were mostly along progressive lines (e.g. gay rights). They also fear that the new government’s attempt to reform the courts will result in losing their status as a democracy.
Is that fear justified? Does judicial reform really mean giving up democracy? I think the opposite is true - if done right.
In yet another brilliant oped in Mishpacha Magazine, Jonathan Rosenblum weighs in.
Jonathan is a Yale trained lawyer. Yale Law School is considered one of the top law schools in the country. If not THE top law school. If anyone is qualified to render an opinion, Jonathan is.
As he notes the power arrogated to Israel’s Supreme Court via the efforts of one man makes Israel anything but a democracy. (I urge everyone to read Jonathan’s article in full.) I don’t think his position is arguable. The following excerpts are some of the ‘money quotes’:
In a critical 2007 review of A Judge in a Democracy by Aharon Barak, who as Court president single-handedly established Israel’s High Court as the most powerful in the world, Judge Richard Posner, one of America’s leading legal thinkers as a professor and judge, concurred with the earlier judgment of Judge Robert Bork that Barak had established “a world record for judicial hubris.”
… In Barak’s view, the world is filled with law — i.e., there is no human action that is not subject to a legal norm, and judges are empowered to determine those norms. In furtherance of that vision, Barak did away with traditional legal doctrines of standing (who may bring a suit) and justiciability (what subjects are appropriate for judicial determination)…
As a consequence, no government action or failure to act was beyond the purview of the Barak Court. The late Professor Ruth Gavison charged that no high court in the world set out to determine every societal norm to the extent that the Barak Court did…
Barak, however, does not view morality and legality as separate realms. It is the judge’s duty, he argues, to give expression to the values of the “enlightened” and “progressive” members of the public. The standard of “reasonability” wielded by the ideal Barakian judge (i.e., Barak himself) is precisely what accords with the views of the enlightened public. Government actions that are unreasonable by those lights would be, according to Barak, illegal.
It is obvious to me that the only real power in Israel is the Supreme Court. They determine what is and isn’t moral based on what is “enlightened” and “progressive”. There can be no view of morality that isn’t progressive . Certainly not any kind of religious morality based on the Torah. which of course has no standing in a progressive court.
It would be one thing if the court had a more democratic way of choosing justices. But Barak made sure that selection of those justices should be done by the people ‘most qualified’ to do so: a “self-perpetuating sect” of like-minded individuals drawn from the same narrow societal stratum.
Instead of a check against the abuses of the executive and legislative branches of the Israeli government., they have become the sole arbiter of what is right and wrong with no entity having any say in the matter. As things stand now, when the Supreme Court makes its rulings they cannot be challenged by any entity regardless of what people with other than progressive values might hold.
With that kind of absoutle power vested in one self perpetuating branch of government, Israel can in no way be considered a democracy. It’s an autocracy led by a few progressive lawyers. Quoting the late American Supreme Court Justice, Antonin Scalia, Jonathan observes the following:
“A system of government that makes the people subservient to a committee of unelected lawyers does not deserve to be called a democracy.”
Unfortunately the less than .02 percent of Israel’s population tat protested ast night does not understand that. Their values are almost exclusively ‘progressive enlightened’ values. Placing very little importance if any on the values of the Torah.
Now it’s true that the .02 percent of progressive Jews that protested represents by far - a much greater proportion of Israelis than the .02 percent who attended the protest The fact is, however, that they are not the majority. The majority is represented by the elected representatives they voted for. Which are decidedly not progressive..
This does not mean that the courts should be stripped of all power. /That would be just as wrong. A democracy requires that the will of the majority be heeded and the will of the minority be protected. In a democracy this balance is achieved through a system of checks and balances such as the one that exists here in the US. Where no branch of government has complete authority over the other.
In my view judicial reform is clearly in order. The Supreme Court need to answer to someone other than themselves.
However, Israel must not go too far the other way - stripping the Supreme court of any power. Which is what would happen if Israel’s new Justice Minister Yariv Levin has his way- allowing the Knesset to overrule the court with a simple majority.
First, the way Israel’s Supreme Court justices are chosen has to be changed. The current method of self selection perpetuates a single political philosophy to the exclusion of all others. That has to end. Justices should be chosen outside of the court and then vetted and approved by the Knesset.
Second, Israel’s Supreme Court needs to be subjected to the same level of scrutiny as the other 2 branches. One way to do that would be to allow for a supermajority of the Knesset to override the court.
If those two things happen as a result of judicial reform, Israel will resume the right to call itself a democracy.