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PDF FormatFar more disturbing, however, was the implication that the threats of a few depraved individuals justified suppressing the opinions of anyone sharing their gripes. Were this the case, public debate could never take place on any but the tamest of issues. In Israel as everywhere, there will always be those for whom the allure of threats to violence in support of their views will prove irresistible. There is almost no controversial move in Israel’s recent political history—the Oslo Accords, the Hebron redeployment, the 1996 election campaign, the privatization of state-owned enterprises, to name just a few—which has not resulted in death threats against major public figures. Nor is Israel unique in this regard: The United States, for example, has a long history of politically motivated violence, including a number of assassinations. And it is frequently tempting to blame the behavior of the violence-prone on statements made in the course of heated argument. But the moment debate is curtailed for fear that violence may result from statements which themselves meet no reasonable standard of incitement, then the actions of the few have succeeded in undermining rights which should be enjoyed by every citizen.
A second complaint of the court’s defenders was that the editorials had carried out a “personal attack” on the court’s president. By singling out Barak, it was argued, the critics were guilty at best of an inappropriate personalization of the debate, and at worst of turning Barak into a target for assassination. The underlying premise here was that debates of this sort must be conducted impersonally, and that the failure to do so calls into question one’s moral or even legal right to speak out.
Although in some cases the argument may hold water (such as the public castigation of an army officer acting upon orders from a civilian government), in the case of Aharon Barak the suggestion was more than a little bizarre: Not only is he the driving force today behind what is possibly the most activist judiciary in the democratic world, he is also Israel’s leading theorist of judicial activism. As a popular law school professor before ascending to the bench, he had a major influence on a generation of students, who today include many of Israel’s most prominent lawyers and politicians. He is a prolific writer who continues to influence new generations of attorneys and judges through his books and opinions. Throughout his tenure on the Supreme Court, Barak has deliberately carved out for himself a central role in what he has termed a “constitutional revolution.” If one wants to take on the theory of judicial activism in Israel, there is no way to do it without confronting Barak. Indeed, to suggest otherwise would deprive him of the credit he has justly earned for successfully promoting an idea he considers vital to the country’s democracy.
More dangerous, however, was the claim that even had the content of the critique been legitimate, the tone of the court’s critics was so egregious as to warrant the suppression of their views. Whereas few would disagree that in an ideal world, political debate would always be conducted with civility, the idea that the right to express one’s views is conditioned upon a particular standard of decorum constitutes an insidious threat to the very possibility of debate on any public issue. For if every word must be carefully weighed for fear that too harsh a tone will trigger moral and legal recriminations, most people whose opinions contradict the establishment wisdom will simply hold their peace, and the public debate will be silenced.
A further argument for censorship was the charge that the haredim in particular had no right to make such arguments—whether or not the arguments themselves were valid—because that community does not share the secular democrat’s view of what the state should look like in other respects. Thus Ha’aretz columnist Yoel Esteron said the editorials should be a call to arms for the secular public, because the haredim “are trying to destroy the secular democracy which has arisen here, and to set up, in place of the State of Israel which was established in 1948, a state based on Jewish law.”63 Since the haredim as a whole are engaged in a constant battle to destroy democracy, the argument goes, they should be silenced at every turn, using any means.
This claim seems highly exaggerated on purely factual grounds: As another Ha’aretz columnist, Ya’ir Sheleg, correctly pointed out, there are many reasons for the secular public to dislike and fear the haredim, but “[n]o haredi body today (other than a few eccentrics) is appealing against either the existence of a democratic regime in Israel or the existence of a secular judicial system headed by the High Court of Justice.”64 Yet even if Esteron’s charge had some basis, the conclusion drawn would be completely intolerable: For if the Israeli public rejects all arguments about the nature of government coming from the haredim on the basis of their presumed intentions, then it has created an extraordinarily effective device for excluding all members of that group—or, in theory, any other ethnic or religious minority—from participating in the national debate. The damage to democratic principle here is palpable, and one wonders how any group permanently excluded from the public discourse would not after a while begin to question the desirability of Israeli democracy.
VI
The final, most substantive claim put forth by defenders of the court charged Hoter-Yishai and the editorials with undermining the public’s faith in the courts in particular, and in the rule of law in general. This idea underlay many of the attacks, such as those of President Weizman (“the legitimate right of dissent does not cover injury to or disrespect for the law”), Haim Guri (“a serious and well-organized attempt to damage the Supreme Court and the entire legal system”) and the joint statement issued by Attorney-General Ben-Yair and State Attorney Arbel claiming that the editorials “undermine[d] the faith of the public in the judiciary as a whole, and in the Supreme Court in particular,” which were “fundamental for the existence of the rule of law and the preservation of a democratic regime in Israel.” Put bluntly, criticism of the Supreme Court is out of bounds regardless of how it is made, since any attack on the Supreme Court as it currently functions is tantamount to an assault on the “judiciary as a whole,” “the rule of law” and even Israel’s “democratic regime.”
Such a claim rests upon the fallacy of a monolithic idea of democracy in general and the role of the courts in particular. In fact, theorists have been arguing these issues for centuries, and no consensus has yet been reached. The demand that Israel’s courts practice judicial restraint is certainly a call for a shift in the balance of Israel’s governmental powers, but it is one well within mainstream democratic theory and practice—indeed, it was the accepted position within the Israeli judiciary for most of the state’s history. Thus the challenge to court activism is not an assault on everything Israeli democracy holds sacred, but the presentation of an alternate model for what kind of democracy the people of Israel are to choose for themselves—a model that in many ways shows a greater loyalty to the western democratic heritage.
Traditional democratic theory creates a sharp division of labor between the legislative and executive branches, on the one hand, and the judiciary on the other. The former are charged with making and executing policy since, being directly elected, they are most representative and most responsive to the values of the broad public; the latter, due precisely to its relative insularity, is assigned the role of watchdog, ensuring that governments stay within whatever bounds the society has established. In other words, the courts are entrusted with protecting from government encroachment those rights the society deems fundamental.
In most democracies, these basic rights are enshrined in a written constitution, which serves as the reference point for court evaluation of government activity. It was the desire to protect these democratically-determined rights that provided the original rationale for judicial review, the court’s power to strike down legislative or executive action that contradicts constitutional principles. As John Marshall, former chief justice of the U.S. Supreme Court, said in his famous assertion of the right to judicial review in Marbury v. Madison (1803): “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”65
