The recent transition at Israel's Supreme Court has generated kudos for its outgoing president Justice Aharon Barak, a legal genius, it is said. But even among those praising him one could hear voices warning of a crisis that threatens the viability of the legal system he led.
As in all our public systems, too ambitious an agenda, too many tasks (many conflicting) and the consequent dependence on huge inefficient, wasteful and sometimes corrupt bureaucracies lead to disarray. Unfortunately, our legal mandarins took ages to recognize the crisis, either because they are so preoccupied with mending the world or are blinded by hubris. They are now moving so slowly to address the crisis that it is becoming acute.
If you sue someone for breaking a contract or inflicting harm, you should prepare for years of litigation at a huge cost. If you win, the judgment is often unenforceable. Excessive legislation, judgments that encourage further litigation and gross inefficiency block the legal system with millions of cases. Delay in delivering justice increases contempt for the law and encourages lawlessness. Lawyers make a mint from this and have no incentive to reform. The economy, however, is paying heavily in damages and risk premiums.
It is not only justice Barak's insistence that everything is judicable and that practically everyone is entitled to standing on any matter that swamped the courts with cases submitted by a people that is already too litigious. The root of the problem is in our legal elite's Greco-Christian legal philosophy (reinvigorated during the Enlightenment and given populist sanction by The French Revolution) that conceives of human rights in vague Platonic abstractions. It then tries to concretize and enforce these abstractions through the coercive instruments of the state.
But "The State's" power rests on politics. It therefore represents not a mythical "common interest" (mythical because communities are marked by their different interests - hence politics - rather than by "communality") but mostly particular, vested interests. These tend to encroach on individual rights. Therefore courts are asked to intervene so often to protect them.
DESPITE THEIR protestations our jurists seem to confuse the enforcement of law with doing justice. Barak allowed judges to interpret the meaning of contracts rather than stick to their language, presumably because such interpretation would be more "just." But this only increased uncertainty and confusion at great economic cost.
Moreover, under the guise of interpreting the basic Law on Human Dignity and Liberty judges often promote a private conception of justice. Since all Jews, and especially our Knesset members, are equally eager to pursue justice, small wonder that our legislators and our Justice Ministry enact laws in quantities that no sane society or its legal system can absorb or enforce.
Our jurists also tend to believe that laws can cure all of society's ills. Little thought is given to their suitability to their purpose, to their unintended consequences and to whether they can be enforced economically and evenly. Cost and practicality are generally considered vulgar when it comes to the pursuit of justice.
The abstract human rights that our jurists adore are a chimera really. Governments have habitually interpreted and perverted such rights as those embodied in the Law on Human Dignity and Liberty. Only property rights can give real substance to human rights by granting individuals and their voluntary associations economic power to resist the law's delay and the insolence of office.
UNFORTUNATELY, our legal system either neglects or is contemptuous of concrete property rights, while adulating an ill defined abstract notion of "equality." The remarkable framers of the US constitution (inspired in part by the Jewish tradition that was embodied in the institution of the Jubilee, and by our sages insistence that "a poor man is like a dead man" because he lacked the real rights granted by property) wisely considered property rights as the most fundamental, concrete right on which all other rights must rest. For only in economic prosperity can a civil society fashion and maintain the voluntary associations that counterbalance the coercive power of The State, so readily abused.
This is why the American framers, especially James Madison insisted that a society that wants to protect freedom of choice must oppose a mechanical conception of equality (a Sodom's Bed really) and nurture a creative inequality and its outcome: property rights.
Such protection, Madison insisted, is "the first object of government."
Justice Barak and his esteemed colleagues do of course acknowledge the importance of property rights. But Barak considers them as deriving from "the central" abstract right of "Human Dignity and Liberty." Our basic law does not, Barak affirms, "define such a right" as property rights. Therefore the protection of such rights is dependent on judges who are mostly hostile to them and to competition. Many judges also lack the economic understanding to realize that without firm property rights and competition there can be no market exchange or a useful mechanism of pricing, the two essential attributes of a modern economy. Worse, most are infected with the socialist Zionist ethos that considered profit exploitation and property iniquitous. They are therefore not eager to protect such rights.
It will take a great educational effort to change these basic attitudes that made Israel economically lame. Meanwhile there are several managerial and procedural reforms that can be pursued to make our legal system a bit more efficient.
But first we must acknowledge that the crisis is severe and costly.
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