Although Aharon Barak, President of
Israel’s Supreme Court, ostensibly believes in the rule of law, he
appears profoundly ignorant of its prerequisites.
The rule of law ultimately depends
on reverence for law. Reverence, however, is a species of veneration,
and veneration is for things venerable, i.e., old. Yet Judge Barak
contends that Israel’s Basic Laws should be easily changed. But if Basic
Laws can be easily changed they can hardly be “basic” or become old and
venerable.
There is a more profound defect in
Judge Barak’s mentality: his judicial decisions are radically
egalitarian. Egalitarianism implies not only equality between
individuals but also between generations, which is obviously
subversive of reverence, the precondition of the rule of law.
Judge Barak’s activism is a logical
consequence of his egalitarianism. The democratic assumption that all
generations are all equal enlarges the scope of his power. History
indicates, however, that the generations of mankind are not equal, that
genius flourishes in some generations and not in others, indeed, that
great lawmakers are even rarer than philosophers. How many generations
have produced a Moses, or, in modern times, a James Madison?
Whereas judge Barak would have
Israel’s Basic Laws readily amendable, Madison warns that frequent
amendment would “deprive the government of the veneration which time
bestows on every thing, and without which perhaps the wisest and freest
governments would not possess the requisite stability.”
Madison
deemed reverence for law essential to good government. However, since
egalitarianism is subversive of reverence, it must in some instances be
subversive of good government! Accordingly, wise statesmen have limited
the application of equality by requiring extraordinary majorities to
amend a nation’s constitution. This is an essential precondition of the
rule of law. Israel, of course, has no constitution, which very much
accounts for the fact that the rule in this country has become the
rule of Judge Aharon Barak.
