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Tuesday, April 17, 2007

Posner on Barak

Richard Posner has a review in this week's New Republic of The Judge in a Democracy, by former Israeli Supreme Court Chief Justice Aharon Barak.  It is a typical example of the Posnerian art of the takedown.  Although Barak "supposes himself to be in some sort of sync with liberal American judges," Posner writes, "he actually inhabits a completely different -- and, to an American, a weirdly different -- juristic universe.  I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak 'establishes a world record for judicial hubris,' he came very near the truth."  And more: "What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.  He puts Marshall, who did less with more, in the shade."  And more: "Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words."  His concept of democracy "is not a justification for a hyperactive judiciary, it is merely a redefinition of it."  Barak "purports to derive his judicial approach" from various abstractions, "but they cannot be the real source of his jurisprudence, because they are as empty as they are lofty."

Posner attempts to use Barak as an example of why American judges shouldn't cite foreign cases as authority.  By "authority," he means treating foreign decisions as having some weight in and of themselves rather than because of the rightness of their arguments, which he would permit.  I think this argument is a red herring.  Few American judges even purport to cite foreign cases as "authority" in the sense in which Posner means it.  On those occasions when they have, I doubt they were really doing so as all; they were actually convinced by the rightness of those opinions.  And even when they seem most clearly to be treating foreign decisions as "one more twig to place in the pans of the scales of justice," they generally only do so after having mustered an array of purely domestic arguments in favor of their opinions; even then, they still only use the "twig model" to suggest the extent to which a variety of judges, foreign and domestic, have given the same shape to abstract words contained in our Constitution itself.  Posner's argument on this point is overstated and based on a questionable description of the actual American practice of citing to foreign law; his critique of Barak adds nothing to the scales on that argument.

But it is still a useful critique.  American lawyers and legal academics, insular as they are, may not fully appreciate Barak's influence, both in Israeli law and in constitutional law in a variety of other countries, including Canada.  (He seems to be plugged in somewhat at Yale, but I am not sure that institution meets the definition of "American law school.")  In many respects he is a model of the constitutional judge in a variety of legal systems with 20th-Century constitutions.  And like Posner, I think his is a dangerous model.  Canadian judges have been writing for several years now about phrases like "human dignity," also used by Barak.  They are no closer to a meaningful and predictable definition of that phrase, nor are they closer to justifying it as a useful and constraining constitutional principle that does all they would have it do; they can never get closer.  Posner writes that Barak "was a judicial buccaneer, and maybe that was what Israel needed."  But a legal system can only stand so many buccaneers, let alone a whole judiciary that attempts to sail under the privateer's flag.  Barak may have been a great judge, in other words, but it is far from clear that he was a good one, and other constitutional courts should be leery of taking him as their beau ideal.  Read the whole thing, as they say. 

Posted by Paul Horwitz on April 17, 2007 at 09:16 AM in Article Spotlight | Permalink


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He seems to be plugged in somewhat at Yale, but I am not sure that institution meets the definition of "American law school.")

Made my day.

Posted by: XYZ | Apr 18, 2007 6:18:13 PM


Just for the record, I agree that abstract moral and metaphysical concepts should not be idiosyncratically invoked as if their meaning is solely and simply from above or outside the law proper but should only appear in the context 'of some test that is sufficiently formal and detailed that it cabins the judge's discretion, or...through legislative and other political actions.' In fact, such concepts are best integrally bound up with particular forms of legal argument: textual, doctrinal, historical, prudential, structural and ethical, while adhering to fundamental interpretive principles in law, such as 'minimal mutilation, generality, and coherence' (see Dennis Patterson's paper, 'Interpretation in Law,' San Diego Law Review, Vol. 42, 2005 Available at SSRN: http://ssrn.com/abstract=702921).

Posted by: Patrick S. O'Donnell | Apr 18, 2007 2:33:07 PM

Thanks for these comments. I suppose you might slot Posner's review into the broader criticism Matt makes, although I'm not sure it would be an accurate characterization. Closer, perhaps, would be Patrick's first comment, criticizing Posner for finding such broad concepts empty and thus poor guides for judges. There's an overlap, obviously, but they're a little different in emphasis. My sense is that whether or not Posner finds such concepts absolutely empty, he considers them sufficiently abstract that they are unlikely to provide much guidance for judges on the ground. That's fine if they are implemented not through simple recourse to the broader principles, but through some test that is sufficiently formal and detailed that it cabins the judge's discretion, or if they are implemented through legislative and other political actions. But simply referring to "human dignity" -- even if the concept emphatically does have meaning, and universal meaning at that -- may be a poor and dangerous way of carrying out the judicial function, may simply allow judges to impose their own priors on a situation, without more guidance and definition at the level of implementation. That, I take it, is why Posner criticizes Barak, and I think the criticism is fair -- if not in Barak's hands, then in the hands of other judges whose opinions I have read. In an important sense, "a," who provides our one degree of separation from Barak himself, does not disagree with this. I hope "a" will write back with more observations from his course.

Posted by: Paul Horwitz | Apr 18, 2007 10:33:53 AM

I just took a shortish course with Barak on his theory of purposive interpretation. I found it extremely convincing and coherent, but it is possible to see how some tenets of the theory might allow for broad discretion in the hands of a skillful judge.

Posted by: a | Apr 17, 2007 1:51:17 PM

I'll hope to get up a reply sometime soon. In the meantime, let me say that this post is also up on Dorf on Law, and there are some terrific comments. Those interested in Barak in a comparative con law context might enjoy Prof. Dorf's comments, while those interested in Barak in Israeli context might enjoy "foreigner's" comments.

Posted by: Paul Horwitz | Apr 17, 2007 12:30:21 PM

Thanks Paul for the post. It reminds me that I have been planning to blog about this wonderful book I am reading (in Hebrew, i dont think there is a translation out yet) about the israeli supreme court, called "the supremes" ("HaElyonim"). one of the points that is made throughout the book is that the new president/chief justice who replaced Barak, Dorit Beinish, has a far more institutional world view and is extremely cautious about overclaiming her role as a judge. And it links these differences to their different backgrounds -- Barak as a Holocaust survivor migrating to Israel as a child and being an academic before becoming a judge and Beinish as a Sabra, growing up in Tel-Aviv, and working for government throughout her legal career.

Posted by: Orly Lobel | Apr 17, 2007 12:13:48 PM

erratum: '"is," "ought," and "can"'

Posted by: Patrick S. O'Donnell | Apr 17, 2007 10:55:01 AM

I didn't see Matt's comments before I posted mine, so allow me to agree with his acute observation that 'Posner has the bad tendency to say things like this when he mostly just means that he doesn't like ethics or political philosophy and doesn't understand it (as you can tell if you read his writings on it- it's generally quite badly done.).' Indeed.

Posted by: Patrick S. O'Donnell | Apr 17, 2007 10:06:54 AM

Thank goodness pioneers of international law and human rights weren't as sceptical about the metaphysical meaning of human dignity as you are here!

Incidentally, charges of emptiness and loftiness are frequently lodged by those of positivist persuasion against any and all substantive moral principles and metaphysical assumptions and conceptions that buttress such principles, much in the manner logical positivists historically found the concept of Natural Law wholly empty of empirical content and cognitive meaning whilst their legal cousins contended the concept was bereft of operative force and practical import. Like Natural Law propositions, the fundamental values and principles Barak often refers to are frequently about how human beings *must* be treated if we are to accord 'abiding, universal, and meaningful status to being human; that is, if we are to regard all human beings (biologically defined) as rational and moral agents, or if we are to differentiate decisively between the human and other species without detaching man entirely from nature' (Raghavan Iyer, 'The Open Texture of Natural Law,' in Parapolitics: Toward the City of Man, 1979). As with Natural Law formulations, these abstract and lofty principles represent an ambitious if not necessary attempt 'to combine the notions of "it," "ought," and "can"--existence, norm and potentiality...[referring not only to the necessary conditions of human existence in nature and political society, but also pointing to] the undefined possibilities and shifting frontiers of human capacity and moral growth' (ibid.).

I haven't read Posner's review yet so I don't know if he comments on the following, but I do appreciate Barak's frankness about the theocratic dimension of the state of Israel: 'Israel was founded as the state of the Jewish people. The reason for the existence of the State of Israel is its existence as a Jewish state. That character is central to its existence, and it is "an 'axiom' of the state." It is a "fundamental principle of our law and our system." We therefore cannot alow a list or an individual seeking to negate this reason and this foundation to participate in elections.' (p. 30)

I look forward to reading Posner's review, as I frequently find him wrong-headed and deeply mistaken when he deals with moral principles and values that pertain to democratic theory and practice.

Posted by: Patrick S. O'Donnell | Apr 17, 2007 10:04:24 AM

Thanks for this, Paul. I will try to read the whole review. I think you're right, and obviously so, that the 'foreign law' worry is almost entirely made up. I'll be curious to see if Posner gives us any reason to think that Barak's views are really 'empty' or 'a play on words.' Maybe they are (I've not read the book) but Posner has the bad tendency to say things like this when he mostly just means that he doesn't like ethics or political philosophy and doesn't understand it (as you can tell if you read his writings on it- it's generally quite badly done.) Does he give any argument for this view?

Posted by: Matt | Apr 17, 2007 9:36:27 AM

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