The many forms of judicial tyranny

Israel’s conservatives have launched a major legal reform process. They argue that an emerging tyranny of judges is overriding the democratic will and that they must return authority to the people.

Is the conservative position reasonable? The question should be considered in historical context. One must ask: Is there a place in the world, or a point in history, that experienced a tyranny of judges, or is this argument a red herring? And if it indeed existed, is it undesirable? After all, the Book of Judges warns us of an age in which public life is dominated by the unmoored proclivities of the masses, checked only by judges.

In fact, there is a presently-existing example of such a tyranny: the Islamic Republic of Iran. Iran’s regime is dominated by a small minority of judges who have legal training in Sharia, who then rule the country through their interpretation of that legal code. Judicial power has allowed them also to build a set of principles that aren’t strictly codified in law, but that further empower those judges. And at the top of the system is the supreme jurisprudent—the Faqih. This system, called “Valeyat e-Faqeh,” translates precisely into “the rule of the Jurisprudent.”

Iran is an Islamic country, so one might argue that it is religion, not a lack of judicial restraints, that gives rise to its infamous harshness and horror. In Iranian law, any act condemned within Islam can be severely punished, as when women refuse to wear the hijab. When we think of judicial tyranny we think perhaps of a secular form of it, so Iran’s code, based on religion, might seem like a different phenomenon. And yet, there are many fundamental similarities, and similar problems can arise. It is a system that places sovereignty not in the will of the majority of the people, but rather in some external structure such as Sharia or a “universal body of liberal values.” At its core, it is a system anchored to a narrow elite, which then rules over a larger society that it regards as too base and unenlightened to understand, let alone master, that specialized expertise.

For those who study philosophy, this may call to mind Plato’s Rule of the Philosopher King. A relevantly similar idea reappears in modern times in the form of Jean-Jacques Rousseau and his formulation of the “social contract,” wherein the people are too primitive, immature, or uninformed to properly appreciate the social contract that defines their political body. As a result, the people need some sort of “vanguard intellectual” judge or potentate to rule over them with full power. This vanguard elite becomes essentially a judicial or political tyranny for the benefit of the people. It is no wonder that Rousseau himself expressed tremendous admiration of Muhammad in his book Emile, as the perfect manifestation of such a ruler, who unifies the legal, spiritual, and political power into a vanguard absolute leader. In that way, indirectly, Rousseau is the unwitting father of both the French and Iranian Revolutions.

Examining this form emerging from seventeenth-century France, we see where it leads. It led to communism and other ideologically-grounded regimes where specially anointed leaders (usually self-appointed) alone had the tools, intellect, and enlightened disposition to properly understand the true will and nature of society. They, therefore, considered it only right and fitting that they should rule without obstruction.

The secular forms of the Philosopher King tend to drift into the greatest violence, because they lack loyalty to a coherent body of laws as the ultimate anchor, and instead wander into the realm of lofty ideals—a secular religious body of human-generated values—that provide infinite interpretations (and thus maximum authority for the Philosopher King) upon which to reign. Such lofty-but-amorphous ideals do not bind, but instead release the Philosopher King even from the shackles of a legal code. Although the secular systems of tyranny emerging from the French Revolution aren’t widely viewed as judicial tyrannies, there is in point of fact a common thread connecting various modern ideological tyrannies, all of which owe their foundations to the idea of the Rule of the Philosopher King. It is in the name of such a system, whether it’s called Valeyat e-Faqeh in Iran, or communism in Russia or China, that tyrannical governments have claimed more lives in the last 200 years than any other political structure. It is of course a cruel irony that the nemesis of ancient Greece, Persia, is now ruled by a philosophy imported from Greece.

Such systems protect only one minority—the anointed elites—and establish one sovereign: the Philosopher King. A system anchored to the Rule of Philosopher Kings, secular or religious, is generally brutal to its minorities, even though many minority groups have initially poured their hopes into exiting their minority prison through such brave new political constructs. Unlike a dynastic sovereign, who could adopt a protective, paternalistic stance towards all of his people, the philosopher king cannot truly embrace a structure based on minority rights, because he claims to manifest a hidden truth represented by a majority that remains too immature or uninformed to properly articulate its aims. In other words, the system represented by the Philosopher King or Rousseauian lawgiver has its raison d’etre tied, not to a moral or political ethic that would protect the rights of individuals or minorities, but rather to a claim to give true expression to the will of the majority. Any obstruction to the vanguard leader’s will then is an obstruction to the social contract’s realization, and thus an alien body in need of removal. That is why systems based on this idea, in reviewing the historic record, tend to be the worst offenders, rather than protectors, of minority rights who by their nature find themselves outside the majority will.

Of course, while that system does not protect minority rights, neither does a system based strictly on majority rule. The Book of Judges warns us of how dangerous this can be, but we can see the same lesson in the French Revolution. Any government that respects the sovereignty of the people, and is based on true majority rule, must also incorporate a structure that limits that rule when it threatens the rights of minorities and individuals. That structure could derive from one of two sources. It could recognize divinely bestowed rights of individuals, such as the Israelites were again and again seduced into rejecting in the period of Judges. Or, it could acknowledge natural rights, as explained by early enlightenment British philosophers such as Locke and Hume. Either way, there are certain rights that are seen to be inherent to man, either endowed by God or baked into the essence of man as a given of nature (like laws of physics) which can neither be granted by a political authority nor changed in their essence. Thus, neither can be revoked nor reshaped into utopia by a political authority. A system anchored to a narrow ideology, patterned after Rousseau’s concept of the superior lawgiver and the Rule of Philosopher King, may pay lip service to some theories of individual rights, but this model has historically failed its minorities. Despite their attempts to meld into the new ideology, they usually find themselves standing as outsiders against the social contract, by definition removed from its rights, privileges, and protections

The United States Declaration of Independence quite bluntly states that we are endowed by our creator with certain inalienable rights. American tradition thus affirms that rights are given by God and cannot be taken by man. Then it enumerates those rights, all of which come from long evolution of much older precedents that exist in an Anglo-Saxon tradition dating to the 1689 Bill of Rights, to the 1628 Petition of Right, and the 1215 Magna Carta, but ultimately reach back almost four millennia to the Bible itself and what transpired at Mount Moriah and the near sacrifice of Isaac.

So where is Israel in all this? Israel finds itself right now trying to navigate between two extremes. On the one hand is the rule of judges or Plato’s Rule of the Philosopher Kings, and all the dangers that emanate from that, and on the other is a strict majority-rule system that lacks a proper structure or constitution to establish inalienable individual rights. The reforms proposed are a defensive mechanism to stop the acute slide into a tyranny of judges and the dangerous path of the Rule of Philosopher Kings. They are essential to establishing the principle of majority rule, and thus necessary (with the possible exception of the Override Clause).

But at the same time, if opponents are genuinely concerned about the protection of minority and human rights a proper response would be not to obstruct reforms, but rather to embrace them while demanding some mooring of a basic document that anchors and recognizes the divine or natural rights of individuals.

There is no need to reinvent the wheel here. The United States in 1776 was a colony of Britain, but it became independent and used the 1689 Bill of Rights to justify its revolt, ground its independence, and then anchor its structure of government. So too can Israel, which as a British colony in 1948 gained independence, refer to the same 1689 Bill of Rights as a precedent for forming a foundational document. This crosses the secular-religious divide since it is based on both natural and divine (Akidat Yitzhak/Mount Moriah) ideas of the origin of rights, and the Likud in particular should see this as emerging from its own body of tradition. When Menahem Begin declared the revolt against Britain, he deliberately fashioned his ideas on the American Revolution and its justification for revolt based on Britain’s parallel violation (1776 and 1945) of those foundational rights. Indeed, Begin ended his speech announcing the revolt with the climactic line from Patrick Henry’s famous speech at the Continental Congress in March 1775, “give me liberty or give me death.” He then named his party after that phrase, as “Liberty Party” or simply “Herut” in Hebrew.

Israel can still draw on that foundation. Those who are worried about mob rule and minority rights—concerns that are indeed valid and must be acknowledged—should embrace these reforms and hope for their swift passage, but at the same time insist on the addition of a grounding document or Basic Law based on the 1689 precedent. Indeed, even as that Bill establishes inalienable rights, it also enshrines the primacy of parliament as primus inter pares since it is the servant and embodiment of the sovereign people. It is a package deal.

Those who would still oppose reforms at that point cannot truly regard themselves as advocates of either democracy or freedom. Instead, the progressive forces are merely using the language of democracy and rights in Orwellian inversion to advocate the preservation of the latest rendition of the Rule of Philosopher Kings. This privileged, entrenched minority elite—which considers itself more enlightened and superior to the masses—has hitherto preserved its status by empowering an unaccountable and unrepresentative authority of the courts over the will of the people. Its far-left leaders are so misaligned with Israeli society that they can no longer win elections, and in some cases cannot even win enough votes to secure a seat in parliament. Reforms are clearly necessary at this point.

Minority groups, and others out of alignment with the hyper-secular European-elite-oriented vision, have succeeded in their two-decade effort to win a majority and bring Israel to this moment. Reform will happen, and Israel’s progressive left seems determined not to reconcile to it, but hopefully, the more traditional left and center in the country, which are likewise underrepresented in the courts and legal structures, will join the right and create a consensus behind meaningful reform.