fugitive peace

I know nothing about law, but I’ve always been oddly fascinated by Israel’s supreme court. It’s probably the paradox of a court known worldwide for having civil rights at the centre of its agenda—in Israel, if you think your civil rights have been violated, you go straight to the top, bypassing the lower courts—in a country known worldwide for its dubious record on those same rights.

The short answer to the paradox, of course, is that the civil rights we fondly think of as universal are totally not. It’s courts and parliaments that get to decide what the rights should mean, how much scope they should have, and what to do when individual freedoms clash—as they inevitably do—with the good and security of the collective. And though judges are more independent than legislators, they are still products of the same system; they have their ideologies, social consciences and political pressures, as well as personal agendas. How they interpret individual freedom suits the country they are in.

This came home to me yesterday at a seminar on “The Interface between Law, Intelligence and Terror” at the Shasha Centre at the Hebrew University. The main part was a closed session packed with retired generals, senior spies and supreme court justices, where the average age was at least three decades above mine. Most of the talk was, not suprisingly, about the need for laws to give the security services greater powers, plus a lot of sniping at the recent US National Intelligence Estimate and its claim that Iran had halted its nuclear weapons programme.

In the evening, there was a public debate in the evening between Aharon Barak, the recently retired president of the Israeli supreme court, and Richard Posner, an influential and iconoclastic American appeals court judge.

These two are oceans apart ideologically. Barak’s motto “everything is justiciable” shaped the present-day Israeli supreme court. Posner is one of the most controversial judicial conservatives in America, infamous for arguing that a free market in babies (or rather parental rights, he later clarified) would be better than government-regulated adoption. He wrote in his review of Barak’s book The Judge in a Democracy that Barak had created “a degree of judicial power undreamed of even by our most aggressive Supreme Court justices”. Barak, in turn, rather cattily hinted that Posner’s opposition to judicial activism was so extreme even in American terms (let alone Israeli terms) that he was simply wrong about how US judges actually work.

Both enjoy using rhetoric to win points, which made for some disagreements that were largely cosmetic. For instance, Barak said a judge’s role is to protect democracy, while Posner said a judge is meant to act as a brake on democracy. It didn’t take much to see that, in Barak’s words, they were “reading different dictionaries”: Barak’s “democracy” was the liberal values that underpin democratic societies, while Posner’s meant majority rule. In reality they both think the judge has to keep the will of the majority from overly restricting the rights of the individual, though they disagree on how.

But some of the differences are profound. Barak has a somewhat exalted view of judges’ wisdom and importance to society, while Posner describes them as “rather limited”, “not knowing very much”, and vulnerable to “the deformations of their profession”, meaning their tendency to privilege legalism. To Posner legislative limits on judges are essential, while Barak fought them tooth and nail; since he left the job the government and the supreme court have been at war over attempts to make the judges more accountable to politicians. Posner said that words like “justice”, fairness” and “human rights” were “empty much of the time” and to be avoided; Barak, looking incredulous, riposted with “you cannot judge without justice”. To Posner, and to at least a couple of other Americans at the seminar, the idea of the supreme court intervening in military decisions, as Israel’s regularly does, was simply mind-boggling.

In short, they had totally different views on what judges should do to protect civil rights. Yet what struck me was how much of the disagreement could be explained not by ideology but by differences in the way Israel and the US function as countries. It starts from basic procedural stuff. The fact that Israel’s supreme court can be a court of first instance (the reason, I was told, is that the British wanted to limit challenges to the government’s decisions during the Mandate, so they didn’t let lower courts hear such cases) means it sometimes has to intervene on specific cases while they’re still hot—whether to permit a military action that might harm innocent people, for instance—rather than waiting for a body of experience about the issue to build up and set a general precedent.

Then there’s history. For instance, Posner, argues that personal security matters to people more than civil liberties (though one might retort that in practice they usually have to choose between their own security and other people’s liberties, so it’s hardly a fair fight) and it’s therefore reasonable to restrict civil rights in times of war or crisis. In American history, he noted, this is what has happened, and after each crisis—the Civil War, World War II, etc—civil rights have grown stronger again. 9/11 brought new infringements, but as the feeling of threat recedes, these are being challenged. Now, even in the US this idea is a red rag to anyone who believes in the sanctity of constitutional rights. Barak, though, had a much more pragmatic response: Israel doesn’t have short crises punctuated by long periods of peace, but frequent, extended patches of conflict, and without judges to act as a buffer against public mood swings, civil liberties would be in terrible shape.

The Israeli court is also a buffer against a far more volatile politics than in America. Plus it fills the vacuum left by the lack of a constitution. Indeed, the starting criticism that judicial conservatives have of Barak is that he arrogated to the court the powers to overturn legislation and treat the “Basic Laws”, which are merely ordinary laws that require a larger majority to change, as if they were a real constitution. But, as Posner admits, in an “immature democracy, poorly governed” with a “mediocre and corrupt” political class, surrounded by enemies and with no constitution, someone like Barak may have been just what Israel needed.

Meanwhile, Barak’s critics at the other end of the scale are human-rights groups who point out that his court may have been very progressive on civil rights in Israel proper, but when it comes to petitions from occupied Palestinians, it has mostly sided with the government and its security services. Yesterday’s lecture was interrupted repeatedly by a handful of American students shouting “what about the civil rights of the Palestinians?” In another country one might have expected a hall mostly full of other students to be a little sympathetic. Here they immediately began shouting at the protestors to shut up, and burst into loud applause when the security guards finally hauled them out of the hall. It was a reminder that even judges who stand as the ultimate guardians of civil rights cannot avoid reflecting the views of their society.