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The Jerusalem Post13 Jul ’10
Kagan’s admiration for Justice Aharon Barak’s philosophy may have revealed her own predilection for radical judicial activism.
Americans may be wondering why the opinions of a former president of Israel’s Supreme Court may be so relevant to the selection of Elena Kagan as a member of the US Supreme Court, as some of her critics insist. These critics, among them several senators, claim that by repeatedly expressing her admiration for Justice Aharon Barak’s philosophy, even considering him as her mentor, Kagan revealed her own predilection for a radical judicial activism for which justice Barak is notorious.
One important issue that may be affected by Kagan’s admiration for Barak’s often articulated position is the issue of terrorism and the law. Barak and his followers insisted that the fight against terrorism must in no way affect, even in extreme emergencies, a strict adherence to the most liberal interpretation of human rights. Americans may be surprised to discover that an activist Supreme Court that was led by Barak habitually constrained Israel’s military from taking effective measures to protect innocent lives. It feared impairing Palestinian Arab rights to free movement or to a decent quality of life. Changes dictated by the Supreme Court in the security fence have cost hundreds of millions of shekels. Judicial interference in military operational details like the positioning of roadblocks resulted in fatalities, while insistence on Palestinian Arabs’ freedom of movement may have facilitated the penetration several times by suicide bombers.
LIKE ISRAELIS, Americans now debate, following several attempted terrorist attacks, how democracies can vanquish terrorism—and still fully respect human rights. How can democracies win the battle against terrorists exploiting our laws to undermine our civilized order?
Jurists hold two basic approaches on how the law should cope with terrorism: Judicial activists, like Barak and most likely Kagan, believe that human rights are God’s—or nature’s—sacred given rights. Such rights must be defined and strictly enforced by the judiciary even in times of war. Then there are the pragmatists who argue that the right to life of potential victims is no less sacred than the human rights of their assassins. They believe that even human rights must be weighed against other rights and adjudicated case by case.
These two approaches were debated in the recent past by two preeminent jurists, Judge Richard Posner of the Federal Court of Appeals in Chicago, a conservative jurist, and a guiding light of law and economics, and Barak. Barak, an avid practitioner of judicial activism and of the strict application of human rights, insisted that to fully preserve human rights “democracy must fight terrorism with one hand tied behind its back.”
Posner, who “preferred to fight terrorism with both hands,” argued that judges lacked qualification in military matters. They based their judgments on their values, their ideology and on their personal experience. Casting their decisions in terms of human rights was often a cover for imposing their ideology and personal bias under the guise of lofty principles. The rigid application of human rights at almost any cost, Posner asserted, sacrificed innocent lives to protect abstract principles.
Barak insisted that there are universal criteria judges must enforce even if they are not included in legislation because judges “have a special affinity with morality… This vested in the legal system extraordinary powers…”
Posner objected. The claim that everything is justiciable and that everyone can have standing in cases involving human rights upsets a vital and delicate balance between the legislative, executive and judiciary branches of government, setting up the judiciary as the final arbiter. It must lead to judicial despotism.
THE DIVISION between these two approaches has its roots in differing conceptions of human rights. Human rights activists treat rights as abstract platonic universals surrounded by the sacred halo of the law. But such universals, no matter how well formulated, are inevitably vague and therefore require constant interpretation. As Barak conceded the “human dignity and freedom” right is “a complex principle.” But he believed it can be based on “the freedom of each person to fashion his personality.”
No one can define, however, such “freedom” exactly; what are its contents, extent and limitations? Who exercises it and under what constraints? Tomes could be written on what is meant by “personality” and how “to fashion it.” A very complex internal process, it is hard to fathom and impossible to codify. Yet Barak and his followers insisted on making such a complex and vague notion as individual freedom “the principle right” from which all other rights derive.
This very vagueness, however, makes interpretive judges the real legislators of such rights. A dogmatic adherence to abstract human rights enforced by judicial activism therefore curtails the freedom of legislators and nullifies the democratic choice it expresses.
An abstract conception of human rights leads, moreover, to a divorce from reality. A Barak disciple, Prof. Alon Harel asserted that in 50 years people will look back at our obsession with terrorism “as we now look at those who engaged in witch-hunts.”
Terrorism being such a bugaboo, there is no justification, he believes, to deny full protection even to “ticking bombs,” to terrorist suspects who possess information that could help prevent the slaughter of innocents, but would not divulge it unless forced to do so by extreme pressure, even torture.
Even pragmatists like Posner objected to having the law sanction torture. Posner suggested a pragmatic compromise: Prosecutors should sometimes ignore the use of torture by law enforcers if they are convinced that it was the only way information could be extracted that would save lives. “I do not recall,” he said “many people being killed in the last 50 years by witches, but thousands have been killed by terrorists… I am amazed to hear such a dismissal of the danger of terrorism from a professor in a university that was attacked by terrorists. I think it is irresponsible…”
Is this debate between these two schools on how to handle a real terrorist threat relevant to the choice of a candidate to the US Supreme Court who mostly likely embraces the views of the very “liberal” school? Judge for yourself.
The Jerusalem Post30 Jun ’15
Israel’s last elections proved how right David Ben-Gurion was when he said that, in Israel, whoever does not believe in miracles is not a realist.
PJ Media20 Jun ’15
The security challenges facing Israel obscure other deep concerns about the viability of Israel’s economic system.
The Jerusalem Post7 Jun ’14
Unless the laggard Israeli economy is reformed soon, its problems—including its morally debilitating corruption—may threaten its future.
Israel Hayom15 May ’14
What does it say about Israeli society and the system of government when a prime minister is convicted of taking bribes?
Israel Hayom23 Feb ’14
What kind of education should it offer and at what cost?
The Jerusalem Post9 Jan ’14
The productivity of Israeli workers is only two-thirds that of Americans, and their salaries are much lower.
The Jerusalem Post11 Jul ’13
As he completes an exceptionally difficult 8-year tour of duty during a worldwide financial crisis, Stanley Fischer has achieved a unique status.
The Weekly Standard7 Jun ’13
When Israel finally discovered a bonanza of natural gas about five years ago everyone was happy. But then fierce arguments broke out—and rightly so.
The Weekly Standard22 Apr ’13
The economic future of Israel now rests in the hands Netanyahu, Lapid and Bennet. Will they succeed in fulfilling the most difficult and complex mission of liberating Israel’s economy?
Israel Hayom2 Jan ’13
The Israeli government could eradicate poverty by breaking the monopolies and spurring competition.
The Jerusalem Post7 Dec ’12
Our socialist and statist heritage bred our inefficient system. But foreign aid and remittances were serious enablers. The struggle against political and economic concentration could finally permit Israelis to overcome this destructive heritage.
Israel Hayom8 Nov ’12
The time to prepare the reforms is now, so that after the Israeli elections, the prime minister can immediately devote his time to moving them forward.
The Financial Times21 Jun ’12
Israel Hayom6 Jun ’12
To grapple with the impending crisis, Israel’s government must improve the nation’s competitiveness.
The Jerusalem Post7 May ’12
The Wall Street Journal3 May ’12
Reform-minded Prime Minister Benjamin Netanyahu is stymied by bureaucrats and monopoly tycoons.
Middle East Quarterly30 Mar ’12
As the high hopes for a brave new Middle East fade rapidly, Western policymakers must recognize that promoting market economics and its inevitable cultural changes are far more critical to the region’s well-being than encouraging free elections or resolving the Arab-Israeli conflict.
The Jerusalem Post17 Feb ’12
The choice is between an efficient, growth-inducing market economy or a welfare state, meaning a huge government that actually harms the poor and inhibits prosperity.
The Jerusalem Post25 Oct ’11
Aversion toward the rich has had strong roots in Zionism since its early leaders embraced Marxist practices.
Is capitalism in crisis? Of course.
The Jerusalem Post10 Aug ’11
The tent-dwellers’ revolt calls for the enforcement of ‘the will of the people’ (like all autocrats). It refuses to rely on Democracy.
The Jerusalem Post9 Aug ’11
David Lewis, the exceptional entrepreneur and philanthropist, and head of the Isrotel Group dies at 87
The Jerusalem Post20 Jul ’11
Although MKs appear concerned over rising costs, it was they who allowed this injustice to occur in the first place.
The Jerusalem Post28 Jun ’11
Who is to blame for the shameful situation in which millions of Israeli workers – who earn about half what American workers earn – have to pay double for goods?
The New Republic19 May ’11
A Middle East peace strategy that could actually work.
The Jerusalem Post15 Mar ’11
Israel needs to slash its state budget by as much as possible if it wants a chance at fighting waste and corruption.
The Jerusalem Post9 Mar ’11
Too little attention has been paid to how Egypt’s socialist past and welfare-state present shaped the current rebellion.
The Jerusalem Post7 Feb ’11
The Herzliya Conference has become an important international event, but one central issue is absent: Israel’s debilitating economic concentration.
The Jerusalem Post22 Jan ’11
It’s highly unlikely that government can ever learn to make long-term plans and execute them efficiently.
The Jerusalem Post23 Dec ’10
How can one dare compare narrow-minded religion with the all-embracing faith of universality and equality that is socialism?
The Jerusalem Post1 Dec ’10
Many of the social and economic troubles we are experiencing are due to the public’s lack of understanding of the need for economic literacy.
The Jerusalem Post17 Oct ’10
The PM’s courageous decision to tackle economic concentration was misrepresented by several of our media publications—owned of course by tycoons.
The Wall Street Journal8 Oct ’10
Economic concentration hurts the country’s viability and the chances for peace.
The Jerusalem Post4 Oct ’10
A damaging ethos of ‘welfarism’ and distributive politics has come to dominate not only academia but our cultural, military and even our business elites.
The Jerusalem Post19 Aug ’10
The reformers must know the importance of the reform’s success both for Israel and for their careers, and what damage they will incur if it fails.
The Jerusalem Post30 May ’10
We must dismantle the oligarch-owned monopolies that impoverish the Israeli consumer and choke our economy.
The Wall Street Journal18 May ’10
The OECD’s invitation to Israel is a “seal of approval” but the country still needs more reforms.
The Jerusalem Post10 Feb ’10
The world’s astonishment at Israel’s response to the Haiti disaster is insulting. What we saw there was Israel’s true face.
The Jerusalem Post10 Jan ’10
Individual initiative and freedom are essential for creativity—in hi-tech as in all other spheres.
The Jerusalem Post14 Oct ’09
As far as Rose Friedman was concerned, public kudos did not matter that much. She persisted in being a rose, no matter what.
The Jerusalem Post22 Sep ’09
Lasting peace must grow from the bottom up, from an “economic peace process” that proves what advantages peace has to offer on a daily basis. It cannot come from signing peace agreements with radical and corrupt entities propped up by corrupting Western handouts.
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