Our legal system is blocked with millions of cases.
The root of the problem is that the system either neglects or is contemptuous of concrete property rights.
Filed under:
judiciary
James Madison: Protection of property rights is "the first object of government."
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.
Log in or Register
The collapse of Israel’s legal system
The Jerusalem Post
27 Sep ’06
Our legal system is blocked with millions of cases.
The root of the problem is that the system either neglects or is contemptuous of concrete property rights.
Filed under:
judiciary
James Madison: Protection of property rights is "the first object of government."
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.
More recent commentary
The New Republic
19 May ’11
Economic Miracle
A Middle East peace strategy that could actually work.
The Jerusalem Post
15 Mar ’11
The government-tycoons-media triangle
Israel needs to slash its state budget by as much as possible if it wants a chance at fighting waste and corruption.
The Jerusalem Post
9 Mar ’11
Welfare and rebellion: The economic factor in the Arab uprisings
Too little attention has been paid to how Egypt’s socialist past and welfare-state present shaped the current rebellion.
The Jerusalem Post
7 Feb ’11
Is all quiet on the economic front?
The Herzliya Conference has become an important international event, but one central issue is absent: Israel’s debilitating economic concentration.
The Jerusalem Post
22 Jan ’11
Teaching an elephant to dance
It’s highly unlikely that government can ever learn to make long-term plans and execute them efficiently.
The Jerusalem Post
23 Dec ’10
Hellenization and Enlightenment: Post-Hanukka ruminations
How can one dare compare narrow-minded religion with the all-embracing faith of universality and equality that is socialism?
The Jerusalem Post
1 Dec ’10
Would Milton Friedman have approved?
Many of the social and economic troubles we are experiencing are due to the public’s lack of understanding of the need for economic literacy.
The Jerusalem Post
17 Oct ’10
Perverting public discourse
The PM’s courageous decision to tackle economic concentration was misrepresented by several of our media publications—owned of course by tycoons.
The Wall Street Journal
8 Oct ’10
Breaking Israel’s monopolies
Economic concentration hurts the country’s viability and the chances for peace.
The Jerusalem Post
4 Oct ’10
Israel’s progress undermined
A damaging ethos of ‘welfarism’ and distributive politics has come to dominate not only academia but our cultural, military and even our business elites.
The Jerusalem Post
19 Aug ’10
Unable to decide
The reformers must know the importance of the reform’s success both for Israel and for their careers, and what damage they will incur if it fails.
The Jerusalem Post
13 Jul ’10
Elana Kagan, terrorism and the law
Kagan’s admiration for Justice Aharon Barak’s philosophy may have revealed her own predilection for radical judicial activism.
The Jerusalem Post
30 May ’10
Yes, break them up
We must dismantle the oligarch-owned monopolies that impoverish the Israeli consumer and choke our economy.
The Wall Street Journal
18 May ’10
Land of silicon and money
The OECD’s invitation to Israel is a “seal of approval” but the country still needs more reforms.
The Jerusalem Post
10 Feb ’10
The surprise of it all
The world’s astonishment at Israel’s response to the Haiti disaster is insulting. What we saw there was Israel’s true face.
The Jerusalem Post
10 Jan ’10
Hi-tech prospects and pitfalls
Individual initiative and freedom are essential for creativity—in hi-tech as in all other spheres.
The Jerusalem Post
14 Oct ’09
A woman who knew her worth
As far as Rose Friedman was concerned, public kudos did not matter that much. She persisted in being a rose, no matter what.
The Jerusalem Post
22 Sep ’09
Movies in Nablus, dramas in Bethlehem
Lasting peace must grow from the bottom up, from an “economic peace process” that proves what advantages peace has to offer on a daily basis. It cannot come from signing peace agreements with radical and corrupt entities propped up by corrupting Western handouts.
The Jerusalem Post
15 Aug ’09
Israel’s ‘scrambled’ economic system
A courageous recent film has exposes the strong connection between Israeli oligarchs and bureaucrats. Unfortunately however the film’s simplistic pseudo-Marxist treatment is more misleading than revealing.
The Jerusalem Post
24 May ’09
The economy: look to the future
Netanyahu paid heavily to pass a budget in time; his “partners”’ bargaining tactics, bordering on blackmail, reflect poorly on our politics.
The Jerusalem Post
4 May ’09
Reform: prospects and pitfalls
Binyamin Netanyahu’s recent economic plan has great promise but faces obstacles—such as the media and the Histadrut—that may undermine its success.
The Jerusalem Post
11 Apr ’09
Big government? Yes, but there’s a reason
Is Binyamin Netanyahu’s government too big? Yes. So why would Netanyahu create such an unwieldy beast?
The Jerusalem Post
30 Mar ’09
To bail or not to bail
Should the government bail out those of our tycoons who cannot redeem NIS 100 billion worth of bonds?
The Wall Street Journal
12 Mar ’09
Mideast peace can start with economic growth
Billions of dollars in foreign aid to the Palestinians has resulted in war not peace. There’s a better way.
The Jerusalem Post
22 Feb ’09
Warning cries from Herzliya
The government is dysfunctional. The question is why—and how to mend it.
The Jerusalem Post
2 Feb ’09
A lesser economic evil
All government deficit spending is bad. But sometimes deficits are unavoidable. And some deficits are better then others.
The Jerusalem Post
22 Dec ’08
Spinners and cheaters
Why not exploit the crisis to destroy what little freedom Netanyahu’s reforms brought to the economy? Why care if the country will lose its only hope of deliverance from the economic retardation caused by our statist heritage?
The Jerusalem Post
3 Dec ’08
Precipitating the next collapse
Focusing on a putative pension crisis distracts our attention from the real serious crisis that a worldwide recession is bound to create here.
The Jerusalem Post
22 Oct ’08
The panic-mongers’ one-note chorus
The country, the pundits conclude, must return to the good old days of “social democracy.”
The Jerusalem Post
15 Jul ’08
The banks are bamboozling us again
In the name of stability the comptroller has ignored many of the banks’ offenses.
The Jerusalem Post
29 Apr ’08
An Irish-style banana republic
It must be either naiveté or cynicism that allows “Israel 2028” to recommend a reform that will make government a larger and a more efficient instrument for economic growth.
The New York Sun
29 Apr ’08
Israel still doesn’t get economy
Israel’s elites—especially the chattering classes in the press and the academy—are hostile to capitalism because our universities’ social sciences and liberal arts departments are dominated by post-modernist and neo-Marxist professors.
Ideas matter. Hostility to capitalism exacts a great price from the Israeli economy and from its hapless workers.
inFocus
2 Apr ’08
US charity to Israel reconsidered
Jewish institutional efforts must now undergo a period of reform and greater accountability. Some charitable efforts should be privatized. Individuals or groups of donors must take personal responsibility for specific projects, to ensure that funds are dispensed in a responsible and cost effective manner.
The Wall Street Journal
8 Mar ’08
Israel’s no-win strategy
Israeli politicians are preoccupied with political machinations designed to buy support from powerful interest groups by distributing government largesse. This causes not only the factionalization of politics and growing corruption, but consumes time and energy that leadership should use to address life and death issues.
The Jerusalem Post
20 Feb ’08
Dangerous infatuation
Government can no more control powerful economic forces than it can the rise and fall of tides. To effectively fulfill its nightwatchman role—to protect us from internal and external violence and to enforce contracts—government must be kept limited.
The Jerusalem Post
22 Jan ’08
What’s ‘public’ about their broadcasting?
Our “public channel,” funded by a compulsive tax, does not need to be pluralistic or even-handed.
Like other public institutions that lack well-defined ownership, Channel 1 has consequently been taken over by bureaucrats and by undemocratic workers’ unions.
The Jerusalem Post
21 Nov ’07
A year without Milton Friedman
This man did more good for humanity than any other.
The Jerusalem Post
17 Oct ’07
Getting beyond the teachers’ strike
As long as education remains a government monopoly, it is bound to function like all other government monopolies, where union bosses fill the vacuum that lack of defined ownership creates, and monopoly power allows them to blackmail the public.
The Jerusalem Post
19 Sep ’07
A healthy dose of skepticism
In the wake of the Second Lebanon War, there is hope that the phenomenal performance of the economy will finally make Israelis realize the crucial role it plays in their lives.
The Jerusalem Post
14 Aug ’07
How to grow Israeli hi-tech
At the recent Merage Foundation conference to help Israel’s hi-tech sector grow, calls were heard for more government “direction”. This despite sixty years of massive government intervention and “development efforts” that have led mostly to massive failures and waste.