Aharon Barak
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 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.