The Power of the Judiciary – How Far? Debated by World-Renowned Judges Before Packed Audience at Hebrew University

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[img_assist|nid=350|title=Barak & Posner Debate|desc=|link=popup|align=left|width=100|height=69]The Power of the Judiciary – How Far? Debated by World-Renowned Judges Before Packed Audience at Hebrew University

December 24, 2007  - How far and how wide should the powers of the judiciary be? That was the question that divided two world renowned jurists at a conference entitled “Can Democracy Overcome Terror?” that was held this month at the Hebrew University of Jerusalem.

Before a packed audience at the Ezequiel Liwerant-Fomento Mexico Hall on the Mt. Scopus campus, former chief judge of the U.S. Court of Appeals for the 7th Circuit, Prof. Richard Posner, and former president of the Israel Supreme Court, Prof. Aharon Barak, squared off on the proper nature of the judiciary, particularly in times of war or terror.

The conference was sponsored by the Hebrew University’s Shasha Center for Strategic Studies at the Federmann School of Public Policy and Government. The moderator of the event was Efraim Halevy, former head of the Mossad and head of the Shasha Center.

Posner in the past has strongly criticized the approach of Barak, and wrote that “he has broken the world record for judicial hubris.”

On the central question posed by the title of the event, Barak said that even in times of war, it is possible and indeed even essential for the court to intervene in issues involving human rights. Posner differed with this and argued that in times of war the judiciary must permit the executive branch to carry out its work and only afterward to take up judicial issues connected with the events. For U.S. President Lincoln, he said, it was more important to protect the nation rather than civil rights during the Civil War. After the war, the situation returned to normal and democracy continued to evolve in the U.S., said Posner.

Posner argued that judges are not all-knowing with greater insight than others. He differed with Barak in connection with the role and nature of judges and said that their role is a limited one. In his opinion, judges are pretentious in dealing with big issues, and that their use of such terms as justice, fairness and human rights amount to empty words, since the judges themselves have a limited understanding of them. Judges, said Posner, must see matters within a proper context and demonstrate flexibility. “Judicial independence does not mean omnipotence,” he said.

In response to the words of Posner, Barak said that indeed judges do not have to administer the state, but they must conduct themselves on the basis of values and history and strive for coexistence. In his view, it is impossible to judge without speaking of justice, because otherwise adjudication is emptied of its content. “There is no law without justice, there is no adjudication without fairness, and there is no democracy without human rights,” he said.

Barak also that he was pleased that what is acceptable in America is not acceptable in Israel. “Israel is a small state and it does not have the privilege of long periods of peace,” he said. Israel is being tested every day, he said. “In Israel we have not only an 11th of September, but rather also a 10th and a 12th.” Despite this situation, he said, there is a line which democracy cannot permit itself to cross. Only a strong democracy can fight for human rights, he said.

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