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Readers asked that I clarify my claim that our legal system is disintegrating not only because it is so overburdened and inefficient but because of erroneous philosophical conceptions that create an extremely litigious society (overburdening our court system) and involve the judiciary in time wasting dilemmas.
Our basic laws - which our legal establishment, headed by the ex-president of the Supreme Court justice Aharon Barak, considers a constitution in the making - are fashioned as platonic universals. They are therefore often so vague, complex and confusing that they require constant interpretation.
One of the chief problems arising from this is that when such highly abstract basic laws are "interpreted" in order to apply to reality they often fall into a trap that the great philosopher Alfred North Whitehead named "the fallacy of misplaced concretion."
Abstractions, that can be useful analytical tools, are too often wrongly conceived as real entities, with their own life and volition. Thus we habitually speak about the public's or the nation's "wishes" - which governments allegedly represent. We forget that what typifies such abstract conceptions is not only that they possess some basic consensual qualities, which allows us to generalize about them, but also that they represent deep divisions, as is evident from the important role of politics in the "public's" or the "nation's" life. Therefore treating them as a coherent entity is misleading.
This misconception can be best illustrated by our habitual reference to "government" as a real and coherent "entity" with a unity of purpose and capacity for executing common goals. Such governments, however, exist only in the imagination as "misplaced concretions."
In reality, governments are seldom a unified coherent body. They are at best shifting coalitions of politicians that are in constant political competition, devoting much of their time and energy to undermining even their coalition partners. So there is no reason really to be surprised when we discover, unfortunately only as a result of some dramatic crisis, how dysfunctional governments are. We should expect this from governments and not burden them with so many tasks which they are innately incapable of performing.
IT IS, however, a recurrent weakness among philosophers, especially of law, to keep defining basic rights in the most abstract and generalized manner and then feign surprise when they create such a cognitive mess that supreme mental athletics and hours of deliberations and debate are wasted on trying to resolve them.
"Human rightsâ€¦ are a very complex matter," Barak concedes. Yet despite the fact that the "human dignity and freedom" right is also "a complex principle" (in Barak's words) - so vague that it borders on the meaninglessness - Barak insists on making it "the principle right" from which all other rights derive.
Barak defines human dignity as "the freedom of each person to fashion his personality." but tomes could be written on what such "freedom" means; its contents, extent and limitations and who can exercise it and under what constraints; or on what is meant by "personality" and how to define the freedom to "fashion" it, when it is probably a very complex internal process, hard to fathom or codify.
Worse still, all our basic human rights can be abrogated in accordance with a most vague "limitation clause" that states "that no right shall be infringed except in accordance with a law that fits the values of the State of Israelâ€¦" (whatever they are) "and that is made for a proper purposeâ€¦" (however defined, and by whom?) "and not in excess measureâ€¦" (again, defined how and by whom?). Namely our most hallowed rights can be abrogated if a judge can be convinced that infringing them can be "justified" by some very vague and arbitrary criteria.
It would not be far-fetched, therefore, to conclude that our so-called constitution fits Churchill's description of the Soviet system as "a riddle wrapped in a mystery inside an enigma."
This must be why Barak holds that "a constitution must be interpreted from a wide perspective and 'generously,'" leaving the practical definition of rights in the hands of judges. But judges have no one set of principles to go by, and therefore perforce must rely on their own intuition for interpretation: namely on an arbitrary ruling. A "generous" interpretation of rights also makes them arrogate powers that should by right remain in the realm of politics, a reason for much of the resentment expressed against the Supreme Court.
The permission to interpret the law "generously" which Barak recommends even for contracts resulted in judges taking extreme liberties with the law. Barak's wife Elisheva Barak, a labor court judge, decided it was right to force an employer to employ someone against his will "if the court deems that the scale of justice leans this way, and even if this means the coercion of personal service in contravention of para. 3 (2) of the Law of Contracts."
Imagine, a law can be broken because some judge decided that "the scales of justice" incline, in his opinion, against it! "There is no country in which everything can be provided for by the laws," Alexis de Tocqueville warned. Our human rights could be much better protected if the law protected first property rights, as does the US constitution, protecting what really empowers (from the bottom up) the individual and his voluntary associations.
Such real protection would be superior to the protection offered by abstract rights whose realization depends on judge's whims and the corruptible coercive power of government.