Print
PDF FormatIn subsequent writings, Barak gives the impression of backtracking somewhat, adopting a position that does less apparent violence to the Knesset’s intention without really changing the practical implications of his conceptual balancing act. His modified position was set out in his 1994 book Interpretation in the Law, in which Barak rebuts Elon’s critique and sets out to clarify his own views. There Barak stresses that Israel’s “Jewish” values are indeed learned from sources internal to Judaism.55 He also lends the word “Jewish” a measure of theoretical substance, finding two particular aspects of the word that are relevant for the interpretation of the Basic Laws’ purpose clause, Zionism and halacha. Both fashion the image of Israel as a Jewish state, he writes, pointing respectively to the mark left by the Law of Return, and the application of halacha in the sphere of family law 56: “Zionism and Jewish law have a decisive—if not exclusive—influence in forming these values.... Both of these form the ‘heritage of Israel’ as a national- Jewish-Zionist heritage, and they are an expression of the State of Israel ‘as a Jewish state.’”57
In a two-paragraph section entitled “Jewish State,” Barak also lists—without elaborating—a number of features of his idea of a Jewish state. Israel’s Judaism, writes Barak, distinguishes it from other states and constitutes its raison d’êre. Barak cites Israel’s Declaration of Independence (“the natural right of the Jewish people to be masters of their own fate... in their own sovereign state,” “the realization of the age-old dream for the redemption of Israel”), and makes reference to Jewish settlement, remembrance of the Holocaust, Jewish culture and Jewish education. Barak is willing to accept Elon’s references to “the world of Judaism” and “the heritage of Israel” to the extent that they are not exclusively limited to halacha, but cover also an “aggregate of values” which includes those of a “general-Zionist (‘heritage of Israel’)” nature.58
Barak’s interpretive goal is still to reconcile the two concepts. The judge, he contends, must look for that which is common and unifying between “Jewish” and “democratic,” rather than that which distinguishes them. And in the later rendering, he ostensibly applies this criterion to both principles: When applying or interpreting concepts from Judaism, the judge should choose the universalist concepts over the particularist, and with democracy, that approach to religion and state which will sit well with halacha.59 Abstraction at a high level remains essential for achieving the goal of harmony between potentially competing values.
Yet on closer examination, it turns out that in forcing a harmony between “Jewish” and “democratic,” Barak’s admixture still winds up heavily democratic and hardly Jewish. He is careful to point out that “values” do not include particular rules, and that the reference is to “the principle behind the rule” but not the rule itself, to the abstract rather than the concrete—presumably addressing equally the Jewish and democratic values of Israel.60 But when President Barak asserts that the Basic Laws “did not come to entrench specific laws,” it is clear in the context of this and other Barak writings—where he has consistently fought attempts to require reference to Jewish laws—that his concern is with regard to the specifics of Jewish, not democratic, law.61 Barak has never shown any compunction about citing dozens of specifics from, for example, Canadian cases, statutes or articles when elaborating upon the Basic Laws. Regarding Jewish law and principles, by contrast, he is virtually silent.
By downplaying the significance of Jewishness as a source of the state’s values, Aharon Barak is doing far more than thwarting the intention of the legislators. He is essentially redefining Israel’s values, not only in theory but in practice as well. For if the court makes its decisions with little reference to particularist Jewish values, then such principles, in area after area of Israeli life, come to matter less and less. An Israeli court which rules on the basis of the same set of ideas as that of its American, Canadian or German peers cannot sustain the particularist Jewish laws and framework set up by Israel’s Zionist founders. And, given the centrality of the Supreme Court in Israeli life, the idea that Israel’s Jewish character ought not influence its decisionmakers is likely to be adopted by other branches of government, and by a growing segment of the citizenry as well.
President Barak’s tendency to minimize the state’s Jewish values is exacerbated by his creative championing of the “enlightened community” as a juridical device for resolving “hard” cases. In cases of the sort Barak refers to as “easy,” the law is unequivocal and readily apparent: The speed limit is ninety kilometers per hour, and there is no ambiguity. In “intermediate” cases, a judge must work a bit to find the legal norm, but eventually he finds that here, too, there is really only one lawful solution. In “hard” cases, however, a judge must exercise “judicial discretion” to choose among a number of lawful options. It is in the context of this discretion, and in particular with respect to the interpretation of values, that Aharon Barak refers to the “enlightened community.”62
In Barak’s perspective, the Jewish-democratic harmony of abstraction sometimes falls short, and there are cases when the two value systems remain unalterably opposed. Judges are then forced to act on their own discretion:
When the attempt fails, and the values of the State of Israel as a Jewish state cannot be reconciled with its values as a democratic state, there is no escape from the need to decide. This decision must be made, in my opinion, according to the views of the enlightened community in Israel. This is an objective test, which refers the judge to the full set of values which shape the character of the modern Israeli.63
Recourse to the “enlightened community” is Aharon Barak’s method of dealing with a situation in which synthesis fails, and the judge needs somewhere to turn for guidance in tipping the scales. Barak’s “enlightened community,” it turns out, is not a community at all, but really a metaphoric representation of a certain set of values. Its principal task, Barak writes, is “to emphasize the vitality of judicial objectivity,”64 that is, to remind the judge to rule not from his own personal views and predilections, but on the basis of the “full set of values which shape the character of the modern Israeli.”
As a vehicle on the highway to objectivity, Barak’s metaphoric community carries with it a heavy normative payload. It possesses values “which mold the whole cultural world” and expresses the “general public’s conscience” and the “normative convictions of society” with respect to proper behavior. The beliefs of the “enlightened community” are the product of the principal values which make society democratic. “[T]he ‘enlightened community,’” concludes Barak, “is but a personification of normative considerations.”65
But which basic values are personified? Barak’s writings are frequently contradictory on this point. One the one hand, the enlightened community’s values are those reflected in “the existing social consensus in a given society, at a given time.”66 Values are constantly in flux, cautions Barak, and the judge must be vigilant in referring to the “enlightened community” not of the past nor of the future, but of his own time. At the same time, however, Barak warns against the populism and social hysteria that accompany transient, “fleeting moods.”67 The metaphor therefore also represents the judge’s obligation to keep his distance from such pressures—in essence to serve as a bulwark against the impulsive and fickle mob, whose potential for caprice has long troubled democratic theorists. Not for nought are judges granted personal and institutional independence, writes Barak. “The absence of the need to stand for new election every once in a while allows the judge to reflect the basic credo of the nation, even if, in light of the events of the hour, society is not faithful to this credo.”68 Thus the judge must draw only upon the enduring national values which have crystallized within the consensus, those which have survived “the melting pot of societal recognition”—even if these values “are not accepted by the great majority of the public” at the time.69
While Barak distinguishes the “enlightened community” from the general public, he vacillates on the question of whom, if anyone, the term is actually describing. On the one hand, Barak affirms that the symbol “directs attention to a part of the general public,” “reflecting the community whose values are universal,” which is “enlightened and progressive,” and part of “the family of enlightened nations.”70 On the other hand, Barak insists that the concept describes the “basic attitudes of the legal system” which may run contrary to attitudes held by a majority of the public, and “should not be identified with one stratum or another of the Israeli public.”71 It is “neither the religious community nor the secular,” and “it is neither a Jewish nor a non-Jewish community.”72
