Kadi Justice

Last week, we saw how Aharon Barak’s philosophy — that there is a legal rule governing every human interaction, and it is judges’ duty to discover that rule — inevitably leads judges into areas where they have nothing besides their own value preferences to guide them. The result is what a law school professor of mine used to call “Kadi justice” — a Middle Eastern sheikh sitting under a palm tree dispensing justice according to his whims of the moment.

A High Court case from more than two decades ago captures beautifully this aspect of Israeli justice. Four teenage deviants petitioned the High Court to order the government’s Educational TV to show a documentary they had prepared celebrating their lifestyle. Judge Kedai’s opinion for the Court was notably brief. The documentary in question, he wrote, would not in his judgment do any harm, and it might even increase tolerance, and so Educational TV should show it.

The High Court thus created, without acknowledgment, an entirely new right to have one’s life celebrated on Educational TV, provided it does no harm. From where did it derive that right? From the ether?

No less remarkable, it does not seem to have ever occurred to Judge Kedai that there might be hundreds of thousands of parents in Israel who would be highly dismayed by the promotion of lifestyles that are anathema to them and directly contrary to their education of their children.