Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

22 Kislev 5760 - December 1, 1999 | Mordecai Plaut, director Published Weekly








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Opinion & Comment
The High Court Cannot be Society's Moral Authority

More and more senior Israeli legal experts are criticizing the approach of current President of the High Court Aharon Barak, in terms which are remarkably similar to the criticisms leveled by the chareidi community against the High Court, but for which we were called "anti- democratic." The recent critics, however, have credentials that do not allow this charge to be used against them.

The most recent critic is Moshe Landau, himself a former president of the High Court. He expressed his deep concern about the fact that Aharon Barak in practice and in effect sets himself up as the highest authority on all matters, in particular arrogating to the Court the right to cancel laws of the Knesset. He rightly pointed out that the Court has entered areas that are political in nature, and thus itself has become politicized. "Life [here] for thirty-five years was not bad at all," he said, "when the Knesset was sovereign and the Court refrained from any challenge to laws of the Knesset."

Another prominent critic is Professor Ruth Gavison, a senior lecturer on the Law Faculty of the Hebrew University of Yerushalayim. As one of the founders of the Israeli Civil Liberties Union her liberal credentials are impeccable -- yet her criticism is quite broad and deep.

In an interview in the (Leftist) newspaper Ha'aretz, Professor Gavison said, "I do think it is correct for the Court to give legal expression to common values, such as basic human rights, but I do not think it correct for the Court to utilize its power to favor the values of one group in society at the expense of the values of another group. . . .

"In addition, I do not think it the court's duty to be society's supreme moral authority. No one appointed the court for that purpose, and it is not even clear whether it has the necessary competence. Judges in Israel are not chosen on the basis of their integrity or their ethical code, nor for the degree of social leadership that they display. They are chosen on the basis of their professional ability as legal experts. There is nothing in their training that provides them with the right, the authority, or the ability to decide what is moral, and to become the teachers of the generation."

She also criticized the introduction of judicial review of Knesset laws by the High Court: "I believe that judicial criticism of Knesset legislation by the Court, . . . [a]s far as democracy and the process of reaching democratic decisions is concerned, this is a difficult problem. No less serious is the fact that this process is not accompanied by any proper public discussion. In Israel a negative atmosphere has been created . . . that gives the feeling that anyone who criticizes the court is an enemy of the rule of the law. I do not accept this as being true. I think that just the opposite is true."

The only legal experts willing to go public with their views are those who are not dependent on Aharon Barak for career advancement, such as retired High Court justices and law professors. (The only law professor who was recently appointed to the High Court was a well-known associate of Barak for many years.) We hope that there are enough of such non-chareidi critics to make the public take seriously the grave issues raised and perhaps to do something about the judicial dictatorship that is being promulgated in our supposedly democratic state.

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