Richard Posner has a review in this week's New Republic of The Judge in a Democracy, by former Israeli Supreme Court Chief Justice Aharon Barak. It is a typical example of the Posnerian art of the takedown. Although Barak "supposes himself to be in some sort of sync with liberal American judges," Posner writes, "he actually inhabits a completely different -- and, to an American, a weirdly different -- juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak 'establishes a world record for judicial hubris,' he came very near the truth." And more: "What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade." And more: "Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words." His concept of democracy "is not a justification for a hyperactive judiciary, it is merely a redefinition of it." Barak "purports to derive his judicial approach" from various abstractions, "but they cannot be the real source of his jurisprudence, because they are as empty as they are lofty."
Posner attempts to use Barak as an example of why American judges shouldn't cite foreign cases as authority. By "authority," he means treating foreign decisions as having some weight in and of themselves rather than because of the rightness of their arguments, which he would permit. I think this argument is a red herring. Few American judges even purport to cite foreign cases as "authority" in the sense in which Posner means it. On those occasions when they have, I doubt they were really doing so as all; they were actually convinced by the rightness of those opinions. And even when they seem most clearly to be treating foreign decisions as "one more twig to place in the pans of the scales of justice," they generally only do so after having mustered an array of purely domestic arguments in favor of their opinions; even then, they still only use the "twig model" to suggest the extent to which a variety of judges, foreign and domestic, have given the same shape to abstract words contained in our Constitution itself. Posner's argument on this point is overstated and based on a questionable description of the actual American practice of citing to foreign law; his critique of Barak adds nothing to the scales on that argument.
But it is still a useful critique. American lawyers and legal academics, insular as they are, may not fully appreciate Barak's influence, both in Israeli law and in constitutional law in a variety of other countries, including Canada. (He seems to be plugged in somewhat at Yale, but I am not sure that institution meets the definition of "American law school.") In many respects he is a model of the constitutional judge in a variety of legal systems with 20th-Century constitutions. And like Posner, I think his is a dangerous model. Canadian judges have been writing for several years now about phrases like "human dignity," also used by Barak. They are no closer to a meaningful and predictable definition of that phrase, nor are they closer to justifying it as a useful and constraining constitutional principle that does all they would have it do; they can never get closer. Posner writes that Barak "was a judicial buccaneer, and maybe that was what Israel needed." But a legal system can only stand so many buccaneers, let alone a whole judiciary that attempts to sail under the privateer's flag. Barak may have been a great judge, in other words, but it is far from clear that he was a good one, and other constitutional courts should be leery of taking him as their beau ideal. Read the whole thing, as they say.
I should say that this is a pretty opinionated post, and that I am more familiar with Barak through his extrajudicial writings than through his opinions. I welcome the reactions, however critical, of my Israeli and Canadian colleagues on this blog. Have at it.