Barak vs. Posner at Hebrew University

Dr. Yitzhak Klein,

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צילום: ערוץ 7
Dr. Yitzhak Klein
Dr. Yitzhak Klein heads the Israel Policy Center, Jerusalem, which is dedicated to strengthening Israel's character as a Jewish democracy. He can be contacted at ...

Many Israelis have died as a result of Barak's interference in the country's ability to wage war in the name of the enemy's civil rights.

Two legal giants debated how a democracy can guard itself from its enemies, and its liberties from itself

Last night I had the privilege of hearing Aharon Barak, former Chief Justice of Israel's Supreme Court, debate with the eminent, conservative Judge Richard Posner, who sits on the US District Court for the 7th Circuit and teaches at the University of Chicago Law School.  The venue was the Hebrew University and topic was "Law and the War Against Terror."  What added to the piquancy of the event is that some months ago Posner wrote a devastating review of Barak's recent book, The Judge in a Democracy.

Many Israelis have died as a result of Barak's interference, in the name of the enemy's civil rights, in Israel's ability to wage war.  23 reservists died in Jenin in 2002 assaulting a building packed with terrorists.  Israel's air force could have flattened the building with one bomb, but refrained from doing so lest there were civilians within.  Barak has decided where company commanders can and cannot shoot in combat, and where Israel should build its security fence in Judaea and Samaria  Had Barak's court not prevented Yitzhak Rabin in 1994 from expelling 400 Hamas leaders to Lebanon, Israel might not face Hamastan in Gaza today.  Hamastan continues to exist because the legal legacy Barak left continues to make it impossible for the Israeli army to fight effectively in the built-up areas of the Gaza Strip.

In the debate Barak argued that judges, as experts in civil rights and in interpreting the law, are uniquely equipped to determine the balance between national security and civil rights.  He asserted that the role of the judge is to be the guardian of democracy and civil rights, and that the law cannot be one thing in wartime and another in peace. He stated that the decisions of judges in wartime are more important than those of generals and politicians, because judicial compromises on civil rights leave a legacy while political and military decisions in wartime are passing phenomena.  He did not see fit to mention that when someone dies because the court prevented his country from defending him effectively, that death is as permanent as any judicial decision, or that whole countries can die from lack of an effective defense.

Posner opposed Barak on almost every point.  Democracy, he said is rule by the people.  The presumption is that
Posner said justice, fairness, or civil rights are abstract concepts of uncertain meaning, and a judge doesn't necessarily understand them better than anyone else.
their will should prevail.  Provocatively, he said that he did not intend to talk about justice, or fairness, or civil rights, because these are abstract concepts of uncertain meaning, and a judge doesn't necessarily understand them better than anyone else.  That's why, in the US, the Constitution assigns a relatively modest role to judges and gives Congress control both over the budget of the judiciary and over the extent of the courts' jurisdiction. 

It's absurd, said Posner, to assume the law must be the same in peace and war.  In the civil war Lincoln suspended the right of habeas corpus, probably illegally, but that was justified by the war situation and few made an issue of it.  After the war the American people's commitment to liberty returned stronger than ever.  US courts don't make strategy in real time as Israel's Supreme Court does, but adjudicate specific disputes after the fact. It takes years for a case to wend its way up to the Supreme Court, giving the court the time and perspective to consider the long-term consequences of the case before them.  As to the right of "interpreting" the law that Barak claims, Posner argued that "interpretation" actually means creation, and can lead not to the rule of law but to rule by judges.  To my surprise and pleasure, a large minority of the audience applauded.  The hall of course was largely packed with Barak groupies.

Barak arose to rebut.  In contrast to his initial talk, which was wooden—he cited his own judicial opinions nine times—now he was casual, and even permitted himself to be passionate.  One couldn't help liking this side of the man.  "I do believe in justice, fairness and civil rights," he said.  Could Posner's position actually reflect adequately the American legal tradition of Benjamin Cardozo or William J. Brennan?  Barak the liberal had harsh criticism for the Patriot Act:  "You Americans lectured Israel for years on how we ought and ought not to conduct our wars, and then when you got into a war yourselves—you lost your trousers."  This was also payback time for that harsh review.  Barak called Posner's view of the role of a judge in democracy "narrow and shallow."  "I am disappointed by your criticism of my theory of judging.  I can survive that criticism very well."

Posner waived the right of response.  Indeed, his ability to make one is hampered by his not being an Israeli or familiar with Israeli jurisprudence under Barak's aegis.  The real question Israelis have a right to ask Barak is:  If you assert the right to be considered the guardian of democracy and civil rights, how well have you executed that high trust?  What about politically motivated decisions that led to the closure of Arutz 7, and many other decisions, involving exactly equivalent issues, in which right and left were treated unequally? 
The real question Israelis have a right to ask Barak is: If you assert the right to be considered the guardian of democracy and civil rights, how well have you executed that high trust?
What about the greatest violation of civil rights in Israel's recent history—disengagement, where the guardian of liberty, in his written opinion, deferred to the judgment of the Knesset and refused to defend rights because that was the position he had voted for in the privacy of the polling booth?  And what about the fact that the court has, finally, emasculated Israel's self-defense and confronts the country with the choice of either feebly absorbing the blows of its enemies or else trashing its judicial system and starting over?

One more noteworthy thing emerged from the debate.  Richard Posner is skeptical about the unique wisdom of judges because he has immense, and justified, confidence in the American people's wisdom and love of liberty.  Underlying Barak's viewpoint is a fundamental lack of confidence that Israel's people can be trusted to maintain their own liberty.  One wonders if this lack of confidence is not equally justified.

Comment on the Talkbacks

I don't usually comment on talkbacks.  Blogging means letting the public comment frankly on one's views.  One should take valid criticism like a mensch, without arguing back, and ignore impertinent criticism.  But the responses this week raise interesting point for further discussion--and for some reason my computer won't let me do that through the ordinary talkback function, so I'm doing so here.

To sk:  Bingo.  I omitted to mention that Posner opened his remarks with precisely your observation, that the US Constitution relies on the balance of powers, of which the judiciary is only one, to check the excesses of democracy.  Fundamentally, the issue of how society can maintain both liberty and its own survival goes back to a perspective shared by Plato, Aristotle and (l'havdil) Jeremiah:  A society without virtue cannot stand.  The fundamental assumption of the US founding fathers, hitherto largely vindicated, is that the American people possess the virtue to maintain their liberties.  Since there are now 100 times more Americans than there were in 1789, something is clearly enabling Americans to propagate a culture of virtue both in time and with respect to numbers.  But I don't think it's compatible with the views of government you (with the authors of the Federalist) express to assume that it's government that does it.

BTW Posner does not agree with your view of Barak; he said that if there were a Nobel prize in law, Barak would be a candidate.  Which leads one to wonder why Posner doesn't have one--say, in economics.  Coase and Buchanan got theirs, but they (I think Coase as well) were economists coming from the quantitative side, which apparently makes a greater impression in Sweden.

I would be pleased to get an email and learn who "sk" is.

To Adina, to ingather exiles from the four corners of the earth, form a free society, and defend it for generations against deadly enemies requires vast reserves of public virtue.  It is interesting to note that the haskala movement and the movement of the vast majority of Jews to integrate (descend?) into modern secular culture began about the same time as the American political experiment.  My great fear is that an Israeli society founded on modern/postmodern secular culture may not possess the reserves of virtue necessary to survive.  I think Barak shares this view--though as a child of that culture, he is crippled by lacking the concepts and habits of mind to think in the terms I am using.  He viewed it as his task to supply the necessary virtue "from above."  Is this-in him-virtue, or immense hubris, as you argue?  Both traditional philosophy and modern historical experience ought to have warned him that it was likely to be hubris.  But children of modern culture seem impervious to that message and always assume they have the wisdom to fix the world.