05 September 2007 - "Anything is justiciable"

One of the last things I did before leaving Israel was buy a copy of Aharn Barak’s The Judge in a Democracy, in which the former President of the High Court of Israel explains his judicial philosophy and recalls some of his more famous judgments. The book is an interesting read, but Barak’s legacy is more likely to be his famous saying, which sums it all up: “Anything and everything is justiciable!”

This memorable phrase not only expresses Barak’s philosophy but could serve as a slogan for an entire generation of justices that has expanded the powers of judicial review all over the world. Few jurists believed in this doctrine so fervently or practiced it so diligently as Barak did during the 1990s and the early years of the twenty-first century. His judgments shaped not only Israeli but international law.

Some of these judgments are famous for their substance, such as the High Court’s ban on torture in H.C. 5100/94, Pub. Comm. Against Torture in Isr. V. Gov’t of Israel (1998-9). (Given that the book discusses so many cases from Israel and other jurisdictions, I would have thought it would provide a table of cases at the beginning or end; sadly, it does not—the reader is left flipping through footnotes.)

I think jurists around the world recognize the immense difficulty of the balancing act that Israel’s High Court chooses to perform on such occasions, weighing the need for security against the world’s most acute long-term terror threat against the need to defend human rights principles in one of the world’s most robust democracies. Such judgments stand as a guide for courts in other countries.

This is so despite the fact that Barak’s legacy is highly controversial in Israel itself. Many religious conservatives believe that the High Court has adopted an unbridled left-wing activism and want to rein it in. Many human rights activists I spoke to felt that the High Court was not activist enough—that even though “anything is justiciable,” it had failed to declare the occupation of the West Bank itself illegal.

Substance aside, Barak’s influence as a judge is important because it expresses so clearly the spirit of a particular era in global jurisprudence—perhaps the first era in which one could even speak of “global jurisprudence.” Barak believes the role of the judge in a democracy is to mediate between law and society, an idea that Richard Posner finds outrageous but with which many judges outside the U.S. probably agree.

There are a couple of things about the book that I find a bit hard to swallow. Barak writes at length about constitutional law, but his entire judicial career was spent in a country that has no formal constitution. In addition, he says that “dignity” is the essence of human rights. That might be why people feel rights are important, but it seems a bit sentimental: the right to life must surely trump dignity in some cases.

I also found Barak’s treatment of opposing schools of thought, in particular the originalism or textualism represented by U.S. Supreme Court Justice Antonin Scalia, rather shallow. And I would not go as far as Barak does in arguing that judges make the law instead of simply interpreting or applying it. It is an important admission, but Barak also seems to believe it is a maxim for judges to live by.

To be fair, Barak does acknowledge some of the questions that his approach raises for the doctrine of the separation of powers, which he describes as the “backbone of democracy.” It is not ideal, he admits, for the judiciary alone to judge itself. However, he seems to think that the judiciary is at least qualified to do so—and that this arrangement, while not “ideal,” is at least “optimal.” (44)

Israel is now experiencing a backlash against this “optimal” solution—a backlash not unlike that which many other countries have experienced in the course of the “constitutional revolution” of the past twenty years. In some countries, this backlash has led to the restructuring of the courts altogether; in the U.S. it has led to the appointment of “strict constructionist” judges to the federal bench.

But these backlashes have rarely done away with the judicial review of legislation, even if they may have curtailed it somewhat (usually in favor of the executive, not the legislature, it seems to me). People seem to have become used to the idea that the courts should act as a brake on the government. Presidents who want to curtail judicial power have to do it the old-fashioned way: by stacking the courts.

The Palestinian Authority has a (very) short tradition of constitutional law, inseparable from the Fatah-Hamas rivalry. Most human rights issues of interest to Palestinians continue to be decided by Israel’s High Court. This week, the Court ordered that portions of the security fence built on land belonging to the village of Bil’in be moved, a victory for the activists who have protested there every Friday and for Israel’s legal system as a whole. That sort of judgment, “activist” or not, tends to boost the Court’s international esteem.

My main problem with Barak’s approach is it does not distinguish between constituional and judicial supremacy. Judges, too, must obey a higher authority, “optimal” or not. Nevertheless, Barak’s book is an interesting window onto the thinking of the Court and the man who defined Israel’s early proto-constitutional jurisprudence as well as the activist spirit of the first “globalized” judicial era.