Tuesday, April 17, 2007

Posner on Barak

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.


egarber said...

For a little perspective on American judges citing foreign courts, how many constitutional provisions even invite the dynamic in the first place? I'm no lawyer, but I don't recall ever reading about foreign courts in first, fourth, and fifth amendment cases, for example.

Off the top of my head, I come up with these where it *could* (and maybe has to a small degree) apply:

1. Eighth Amendment cruel and unusual punishment

2. Interpreting the "laws of war" when referenced in statute.

3. Interpreting Treaties to the extent they apply in any given case.

Is there much more than that?

Michael C. Dorf said...

Though neither a Canadian nor an Israeli, I have visited both Canada and Israel, and more importantly, I have taught numerous students from those two countries, so I feel I have some ability to comment on Paul's post. (I have also met Barak and like him very much personally. When the full story is written, I would be surprised if his magnetic personality did not account for some substantial portion of his influence.) On the merits, I think Barak's jurisprudence is much less aggressive than his theoretical writings suggest. (In this way he's like Posner, who's a pretty conventional judge and usually a very good doctrinalist.) Yes, Barak made the incredibly bold move of converting Israel's "Basic Laws" into a source of judicial review of ordinary legislation, but he did not then strike down laws passed by the Knesset willy-nilly. If you ranked the Israeli Supreme Court under Barak on a scale of invalidations of legislation, I'd be surprised if it didn't come in somewhere in the middle, certainly behind the German Constitutional Court. Moreover, unlike American constitutional law but like Canadian constitutional law under the notwithstanding clause, Israeli constitutional law is "soft" in the sense that the Knesset could, through ordinary legislation, repeal or modify the Basic Laws. Its failure to do so can be taken as a kind of gruding consent to the role that Barak assumed for the Court (although Israeli politics is so fractious that it's hard to infer anything affirmative from inaction).

The foreigner said...

Okay, I’m taking on the challenge. So, I have two points, going the opposite direction in which you wrote. The first one regards Barak. Yes, I am an Israeli, and Barak (the judge) and Barak (the legacy) is, as you probably know, quite questionable in Israel too. Was he a buccaneer? I wouldn’t go that far, though he was not an ordinary judge. He wasn’t an ordinary judge, in part, because he judged under exceptional circumstances: he was appointed to the Supreme Court on 1978, only 30 years after the establishment of the State of Israel. At the time (as is today) Israel didn’t have a constitution or basic laws, and as some would argue, the law itself was not developed enough. Barak emerged into this reality and tried to change that law, and in some areas actually created the law.

Most of his followers and opponents largely relate to his work on constitutional matters. But, the truth is, Barak was much more activist in other fields of the law. If one were to map his decisions, we would find that every few years Barak focused on different legal field and “cleaned it up.” He started with his specialty – private law – beginning with corporate law (in the early 80s’), moved to tax law, then to torts (mid 80s’) and finally in the early 90s’, he transformed Israeli contract law. He only started his “constitutional revolution” around the mid 90’s. In each of these fields he was extremely activist, holding, for example, that in interpreting tax laws judges should not focus on the language of the statute but rather attempt to realize the purpose of the legislation. Perhaps his most activist decision was in contract law, when he determined that in interpreting a contract judges can (and should) rely on the intention of the parties rather than the language of the contract. This decision not only changed the way contracts are being interpreted and litigated, but also the way in which they are crafted.

Even though these ruling changed significantly Israeli law on torts, contract, corporate and taxes, Barak became famous due to his rulings on administrative and constitutional matters. But did he really create a constitutional revolution? Was the Court activist under his stewardship, as some argue? I think that the Court was more activist in his rhetoric than his actual rulings. Don’t get me wrong; when Barak cancelled the standing requirement and declared, “Everything is justiciable” he changed the role of the Supreme Court in Israeli society, by enabling anyone to bring a petition to the Israeli Supreme Court against practically anything. Yet, while the Court was willing to hear it all, the Court wasn’t necessarily willing to rule on it all. One of the tactics Barak often used was to postpone the hearing (or the ruling) in high profile cases, hoping that other institutions (well, mainly the Knesset) would take on the challenge. This was the course of action in almost all “hot potato” cases. The case against the exemption from military service given to Ultra-Orthodox Jews started in 1970 (!) and only ended (partially) in 2006. After the Knesset legislated the “Tal Statute” (the statute that exempted Ultra-Orthodox Jews from military service), four different petitions were brought before the Court (in 2002), but the first hearing in these petition took place after two years (and the second hearing, a year after). The Court’s decision on the legality of Israel’s security fence was delivered 14 months after the ruling of the international court in Hague. A petition to allow registration of civil marriages was filed in 2000 and (as far as I know) is still awaiting a decision. The petition to allow seculars students to receive income support (as their Orthodox counterparts) was filed in 2000 and still waiting a decision. There are many other examples. It is not a coincidence or a result of heavy caseload (though there is one). It is a tactic that is meant to encourage others to act. And while I think that the procedures the Court has taken are highly problematic, I do agree with the assumption that it is better that a different organ would decide these cases. A second tactic, by the way, was to recommend the establishment of public committee – hoping that a committee would rule instead of the Court (a wish that in most cases did not come true). Whether these tactics are useful or not and whether they contributed to the Court’s loss of legitimacy is a different matter, but it does, I believe, illustrates that Barak wasn’t hurrying to decide some of the controversies in Israeli society. Lastly (on this point), it may be useful to get the facts right. While the Court intervened in some of the controversial issue in Israeli society, he took no part at all in many others. Issues relating to the decision to establish the settlements (or evacuate them); economic decisions that largely affected Israel’s economy or the Courts typical absenteeism from engaging in the development of social and economic rights.

In other words, while I’m not trying to argue that Barak is a minimalist judge, I do suggest that we separate the rhetoric from the actual intervention of the Court. And one final remark (I promise), while Barak, in person, is very quiet and very gentle, he is so charismatic and I do believe that his charisma, and, of course, rhetoric, contributed to his “all mighty judge” image.

Moving to the second point. After spending several years in the US, I am still puzzled by the American obsession when it gets to using foreign law as authority. Maybe it’s just me, but I don’t get it. Why is it so problematic? Why can’t it be one source out of many you look for guidance? Isn’t it interesting to know how people in other places have analyzed a case? Sure, such an analysis should be done cautiously. To borrow from one of Barak’s famous phrases “the law is part of its surrounding” (it sounds much better in Hebrew), meaning, when one looks at a ruling made by a judge in a different country with a different culture (legal and nonlegal), she should consider these differences. But, I trust judges can understand the specific context in which a decision was made. The only explanation I have is cultural, I guess (none of the logical explanation I heard have convinced me). I assume that Americans (and not just American courts) are highly sensitive with it comes to other cultures and other places. American society, as I have learned, is a pretty close society that is not always open to different cultures. The only problem I have with this explanation is that it doesn’t really apply to the American context. Because, while I admit I only visited in few places in the US, New York, trust me, is closer (culturally) to Tel Aviv than it is to Ohio.

Unknown said...

To comment on just one aspect of Richard Posner's review: citation of foreign law,

Posner has claimed in recent years that he is a pragmatist (though to be sure, not a philosophical pragmatist, as he himself puts it). If that's the case, then I see no problem at all with citing Aharon Barak's judicial opinions or his extrajudicial books.

Pragmatically speaking, we wouldn't be bound by precedent, not even our own. We do what's best in this moment; what we did yesterday informs that judgment but stare decisis is hardly a pragmatic doctrine. But when Posner argues against citing Barak's opinions, isn't he saying that what Barak wrote is not precedent, is therefore not entitle to stare decisis authority, and not any use to cite?

To a pragmatist, however, precedent should matter little in terms of its pedigree. If Barak's book or H.L.A. Hart's article is right about what is better for us on how to interpret a statute, even though those texts are contrary to our judicial precedents, that should not matter to a dedicated pragmatist, I think.

Didn't Benjamin Cardozo in The Nature of the Judicial Process say that four score ago?

E.V. said...

So, I'm a Mexican law student, and I work at the Supreme Court. We just published Aharon Barak's article "A Judge on Judging...", prelude, in a way, to "The Judge in a Democracy". And I'm about to suggest for them to publish Posner's "How Judges Think".

I find this discussion so interesting. It's quite a paradox. Uhm. I speak English, and in a way, through college have been reading nothing but American texts. A lot on sociology of law, economical analysis of law, constitutional law... A few times we've read things from Spain (specially for administrative law)... But, in a nut shell: I'm used to looking at "others" for guidance.

I don't know how many of you know something about Mexico, but basically the biggest dilemma we're facing right now (besides the whole "narco" drug traffic thing) is the democratic transition, and of all the things this has moved, one of them has been the position of the Supreme Court. From being subordinate to the Federal Executive, it is starting to be "used" to solve a lot of the political problems arising out of... well, the party-divisions in Congress, the fights between the Executive and Legislative Branch, and the Federation and the States... And, in my probably naïve and mostly viceral opinion, they have no freakin' idea what to do...

And, one of the problems, I think, have to do precisely with the lack of... legal discussion, or in other terms, legal exposure to OTHER works. People here cite the same ol' books, make reference to the same academics, it's just this cycle. And not in the way Americans have it (who wouldn't go back to Marshall or the Federalist? Damn, even I love them). A blogger from a teacher in one single university? What the hell is that... A discussion between several academics, constantly challenging each other and replying to each other on different journals? Nope, not heard of... I see the rèsumes of the US Supreme Court Justices, and I want to cry... Posner? He's not even a Justice, and look at him. I'd take Barak over any of our Justices any day... Jesus.

And what's tragic is that most people don't even speak English. Let's not even mention German, Hebrew, or French (to mention a few)... And we need to look beyond our borders.

For instance, the "new thing" in here is the whole freedom of expression in political campaigns. The US had it in the seventies. Buckley v. Valeo IS happening right now to us. The whole abortion discussion? We're barely just having our own Roe v. Wade. And yes, although we've had a Constitution forever, it's like it's brand new and no body has any idea on how to use it. Barak's account on terrorism? What the hell do you think is happening with drug-trafficking here?

Dunno. I know I barely have an idea on how hard it is to "take" other people's ideas and make them your own. In Barak's words, we have to be sure that we share not just the same constitutional or legal principles, but a similar cultural background. God knows that all the institutions we've "transplanted" (to use the jargon), have been "mexicanized", the problem is: it was not on purpose. Haha. They all just mutated the moment they were in force.

I don't know. I've always wondered what would happen if we (the mexicans) just stopped pretending to be democratic & constitutional, and admitted who we really were (whatever the hell that is)... But then again, would the titans (err, the US, for example) accept us? For the moment, I guess, since we're still trying to be like "the others" (because apparently, they are better), we don't have a choice. Of course, I could look at it more "wisely": we are learning from "the other's" mistakes...

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