- Justice Minister Yariv Levin’s announcement of a reform to the Israeli judicial system the day after the fast of the 10th of Tevet was a declaration of independence for a large camp within the nation. For years, this camp watched with despair in their eyes as its democratic right to rule was trampled on and handed over to an unelected group of judges who, as much as we would like them to, are unable to detach themselves from their worldviews. Thus, on fateful matters that were once decided in democratic elections, they brought in controversial considerations based on their own values, as if these were universal axioms.
As he watched the fruit of his labors sink into the sea, former Chief Justice Aharon Barak jumped into the fray. He described Levin’s reforms as a “string of poison pills” choking Israel’s democracy. He even went as far as to call Levin a “criminal” (!) and wondered out loud why the justice minister had not consulted with him in the first place. He warned of the danger of civil war and volunteered to stand in front of a firing squad and die as a martyr. Woe to the eyes that saw and to the ears that heard that.
In the first century BCE, Abtalion, a great sage of the Tannaim, the Mishnaic era, warned: “Sages, be careful with your words, lest you incur the penalty of exile and be carried off to a place of evil waters and the disciples who follow you drink and die and as the name of Heaven becomes profaned.” (Ethics of the Fathers 1:11) If Aharon Barak expresses himself in this way, how can we complain about the MKs who wish to stand out amid the cacophony and radicalize the discourse as if we did not have a people, a society, and a state to manage?
2. Justice Barak, we understand perfectly well what democracy is and what role the institutions of state have, even if you may believe that “wisdom will die with you.” In the name of one interpretation of reality – one of several – dependent on a particular ideological and political perception, the liberty of a people to decide its future has been stolen.
In fact, Barak approached the letter of the law like the sages of the Mishnah and the Talmud. His interpretation overruled the desire of the legislature and thus new law was created. He bequeathed this authority, which he invented out of thin air, to his successors and thus the judicial branch became, when it so desired, the legislative branch. Our sages of blessed memory looked at biblical law only as a foundation for debate in which their interpretation decided what would be binding law. Hebrew law is not learned directly from the Torah, but with the mediation and interpretation of our sages. Our sages were so strict about this, to the point where ruled that the law must not be learned from the Mishnah, but only from the Talmud which interprets it – and certainly not from the letter of biblical law.
It seems that Barak too believes this, albeit 2000 years late. Every law, he said, has a “subjective sense – in other words, the intention of the legislature at a particular time and place – and an “objective” sense that depends on the interpretation of the letter of the law by a particular judge based on his understanding of the norms and values of his époque.
The German philosopher Hans-Georg Gadamer saw correct interpretation of the law as a synthesis of both elements, which he called a “fusion of horizons” – the meeting between the cultural horizon of a text or law (“subjective”) with the cultural horizon of the interpreter or judge (“objective”). Barak canonized this theory, but in practice, he gave greater weight to the judges’ understanding of the law than to the intention of the legislature. “When a law is passed, it becomes detached from the legislature. It has its own life.”
3. The German legal scholar Gustav Radbruch said that the law is wiser than the legislature. Barak quotes Radbruch, but when we look at Barak’s complete body of work and legal rulings, we learn that it is not the law (and certainly not the intention of the legislature) but the interpretation given to it by a judge is what makes the law binding. In other words, it is not that the law is wiser than the legislature, it is that the judge is wiser than them both. In fact, what Barak views as an objective element is in fact subjective interpretation. Thus, the authority of the legislative branch was undermined in favor of the judicial branch and the Knesset became dependent on the grace of the interpretation of the courts.
In his benevolence, Barak was so kind as to give some weight to the purpose for which a law was legislated, but qualified this by saying “the weight (of the intention of the legislature) is determined by the political theory that the court is willing to accept it.” At the foundation of all laws is the desire of legislators to fulfill the social and political goals for which they were elected to the Knesset. The Knesset debates and votes for approval of a law, taking into account the intention of the legislator. Barak argues that this desire should be given consideration, but immediately qualifies again: “What weight should be given? This is a question that has yet to become fully clear in Israel.”
Again, Barak states: “In a democratic regime, if we afford the legislature the authority to legislate, the significance is that we recognize its power to legislate the laws that it intends to legislate. However, this desire should not be given decisive weight.” He leans on Radbruch’s statement: “The interpreter may understand the law better than its creators (the legislature) understood it.” In addition, he has said: “Many a time, the legislator, with a smile on his face, just as God said as he listened to the debate between Rabbi Eliezer and Rabbi Yehoshua, ‘My children have triumphed over me.'”
4. It is worth tarrying on this point as in my view it stands at the heart of the dispute over Minister Levin’s reforms (if we turn down the background noise of the volatile political debate of the past week).
The Talmud tells of a dispute over the laws of purity and impurity (The Oven of Akhnai, Bava Metzia 59b). During the debate, the other sages did not accept Rabbi Eliezer’s opinion and he tried to convince them with miracles: A carob tree was uprooted from its place, a stream turned backward and flowed in the opposite direction, the walls of the study all leaned inwards and even a voice was heard from the heavens saying, “Why are you differing with Rabbi Eliezer as the Halachah [Jewish law] is in accordance with his opinion in every place that he expresses an opinion.” But Rabbi Yehoshua, with whom he was engaged in debate, stood up and said, “It is written, ‘it is not in heaven.'” Rabbi Yirmeya explains that since the Torah was already given at Mount Sinai, it is no longer in heaven, and therefore “we do not heed a divine voice” as it was already written at Mount Sinai in the Torah “after a majority to incline” and it doesn’t matter how big the one who disagrees with them is.
The divine voice represents “the intention of the legislator,” God in heaven, but from the moment it has been given to man, he acts according to the rules, the most important of which is “after a majority to incline.” In other words, in a dispute over the interpretation of the law, it is not the heavens that decide, but the sages based on the rules of majority and minority. The Talmud adds that Rabbi Natan encountered Elijah the Prophet and asked him what God did when Rabbi Yehoshua said “it is not in heaven” but it is the sages who decide. Elijah, according to the Talmud, responded. “The Holy One, bless be he, smiled and said, ‘My children have triumphed over me, my children have triumphed over me.'”
One incidental comment from Barak shows us that his self-perception as a judge is that he is not an interpreter who sticks to the letter of the law and the intention of the legislature representing the sovereign – the people – but a legislating judge whose interpretation creates laws without being so authorized, and whose rulings are then quoted as if they were the law given to Moses on Mount Sinai. Last week however Justice Minister Yariv Levin stood up and announced for all to hear that the period of the sages is over; the time has come to restore the proper balance between the branches of power and to restore to the people the freedom to determine their future.
{Reposted from IsraelHayom}
