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Title: Coercing Virtue: The Worldwide Rule of Judges by Robert H. Bork ISBN: 0-8447-4162-0 Publisher: AEI Press Pub. Date: September, 2003 Format: Hardcover Volumes: 1 List Price(USD): $25.00 |
Average Customer Rating: 3.47 (15 reviews)
Rating: 4
Summary: A little disappointing, but on whole a good book
Comment: This book is sketchy on the details of the history of judicial activism, focusing more on recent outrages in the United States, Canada, and Israel. Furthermore, it is clear the publisher is indeed THE publishing arm of the think-tank Robert Bork is a fellow at. Clear because it contains some arcane language and argumentation that only a person initiated into the higher eschelons of the legal profession could hope to understand. A mass-market publisher would probably not let the arcane language remain. Therefore, those seeking a basic and introductory work into the phenomenoh of judicial activism might wish to pass this volume by, for now. But for those seeking some red meat, or not afraid to start off in the deep end, this is a good book.
Exactly what will you find in this book? A nice introduction and rough outline of the history of judicial activism, and then a satisfactorily thorough examination of judicial activism in the countries mentioned above, within the last thirty years. Also, Bork does a good job of explaining the rise of so- called "international constitutional common law". This last part (though it comes first in the book) is indispensable reading for any American concerned with preserving the American way of life and his own personal freedom. There you will read about an important international court that asserts that they have authority over you and every other human being on the planet.
One final "word to the wise". This book, minus the notes and index is only 139 pages long.
Rating: 4
Summary: One Court, one vote.......
Comment: Robert Bork's thesis is that "the rule of law has become confused with -- indeed subverted by -- by the rule of judges." This is, he contends, precisely what judidicial activism seeks to accomplish. The result, Bork argues, is minority rule, and the minority "at least for the foreseeable future" is the New Class, a group Bork describes as "overwhelmingly liberal [leftist] in its outlook." Readers, in my opinion, would do well to remember that Bork attacks judicial activism principally because it is anti-democratic. There is, he thinks, a strong tendency for activism and liberalism to arrive in the same package, but it is not inevitable. Yet, in the countries he examines -- Canada, Israel and the U.S. -- he finds a leftist judiciary usurping legislative power. More interesting, in my view, than his country-specific examples, was his discussion of the deference that Courts around the world are increasingly paying to international law, and international courts. "The major difficulty," he contends, "with international law is that it converts what are essentially problems of international morality, as defined by a particular community, into arguments about law that are largely drained of morality."
The validity of Mr. Bork's central contention is difficult to evaluate. It requires finding counter-examples, or their absence, in the mass of law he has surveyed. That is beyond the scope of the ordinary citizen (not to mention this reviewer). However, assuming Bork's argument is valid, two inter-related puzzles surface. (1) Why are we not seeing more of a backlash against the "rule of judges" in democracies that have experienced judicial activism? (2) Why are Courts continually held in high esteem? Discussing the case of Israel, Bork finds "less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them." Fair enough, but why, then, do Israelis continue the charade? Bork is aware of the problem, and he correctly notes that a range of factors might contribute to the apathetic response he witnesses. The one possibility he seems not to consider is that the thesis itself is flawed; that, however it may look to him, citizens are obtaining from Courts outcomes consistent with their expectations. Of course, such an answer would still not satisfy Bork: Courts are not just about outcomes, but about processes, and activists that stray from the intent of the law they interpret are writing law, not finding it. The underlying problem may have much less to do about citizens recapturing lost ground from allegedly wayward Courts, and much more about what it means to be a citizen. Bork's lamentation may be on target: "Perhaps a preference for immediate victories is part of the spirit of our times." Perhaps citizens are weary and cynical. Perhaps "the old civics lessons," which Bork believes are still sound, are evolving in ways that differ from the past. Coming to grips with these and other such issues constitutes, at least for me, the principal reason to read and contemplate Robert Bork's case.
Rating: 4
Summary: Excellent Topic, but a little Thin
Comment: On what basis does the U.S. Supreme Court decide the constitutionality of laws on abortion, homosexuality, religion, and other cultural issues? It should come as no surprise to most readers that Robert Bork - probably the most famous rejected nominee to the Supreme Court in modern times - thinks there is no basis, and that most of what is proclaimed constitutional or unconstitutional in these areas is simply made up depending on the current predilections of the justices. What might come as a surprise to some readers, however, is Bork's claim that this American legal activism, through the mechanism of judicial review, is being internationalized to a stunning degree.
While Bork says this judicial activism can now be found from Australia to Scandinavia, he looks at just three case studies outside the U.S. - international courts (which are primarily European in outlook and location, and represent the vanguard in the internationalization of law), Canada, and Israel. What he describes, however, seems to be less the result of a direct influence of U.S. courts than a syndrome to be found in similarly educated people in the Western world.
Canada, for example, in setting up its Charter of Rights and Freedoms in 1982, wanted to avoid what Bork calls "judicial imperialism" by providing some democratic controls on judicial review. It appears not to have worked as Canada's courts have challenged the intent of key provisions in the Charter with their own judgments. While Canada's judges are still less activist and absolutist in their thinking than their American counterparts, the trend is clear.
The most interesting case study in book is Israel. According to Bork, the Jewish State's Supreme Court is easily the most powerful among democratic nations. It has "gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures." (Page 111) Surprisingly, this judicial activism is highly popular in Israel and vigorously defended by the elites.
The sections on International and U.S. courts were less interesting to me, mainly because I was already familiar with the general arguments made in them. In my opinion, Bork should have done more research on other case studies (Germany? Australia?) to support his claims. This book is only 139 pages long and has just four case studies, two of which (the U.S. and international courts) are well-covered elsewhere. This thinness is the worst aspect of the book -- it feels rushed and abbreviated. An interesting and important topic like this deserves a fuller treatment.
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Title: The TEMPTING OF AMERICA by Robert H. Bork ISBN: 0684843374 Publisher: Free Press Pub. Date: 01 January, 1997 List Price(USD): $16.00 |
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Title: Persecution: How Liberals Are Waging War Against Christianity by David Limbaugh ISBN: 0895261111 Publisher: Regnery Publishing Pub. Date: September, 2003 List Price(USD): $27.95 |
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Title: Slouching Towards Gomorrah : Modern Liberalism and American Decline by Robert H. Bork ISBN: 0060987197 Publisher: Regan Books Pub. Date: 18 June, 1997 List Price(USD): $14.00 |
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Title: A Matter of Interpretation by Antonin Scalia, Amy Gutmann ISBN: 0691004005 Publisher: Princeton Univ Pr Pub. Date: 27 July, 1998 List Price(USD): $16.95 |
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Title: Treason : Liberal Treachery from the Cold War to the War on Terrorism by Ann Coulter ISBN: 1400050308 Publisher: Crown Forum Pub. Date: 24 June, 2003 List Price(USD): $26.95 |
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