A Global Coup d'Etat

National Review, Oct 13, 2003 by Roger Kimball

Coercing Virtue: The Worldwide Rule of Judges, by Robert H. Bork (AEI, 159 pp., $25)

"We set ourselves to achieve a society that would be maximally tolerant. But that resolve not only gives maximum scope to the activities of those who have set themselves to achieve the maximally intolerant society. It also . . . paralyses our powers of resistance to them." -- David Stove

This is probably the most irritating book I have read all year. Not, I hasten to add, because of any deficiencies in the book itself. On the contrary, Coercing Virtue is a model of lucidity, mordant wit, and scarifying analysis. The irritation -- edging into anger and alarm -- comes from contemplating the unlovely political and social realities that Robert Bork exposes. What effrontery! What culpable folly! What menacing stupidity! Those are among the more polite responses that sane readers will entertain as they make their way through this indispensable book. Judge Bork set out to provide a sort of pathologist's scrapbook detailing the ways in which hubristic judiciaries in Western democracies have made ever more serious inroads against freedom. What he has accomplished is a compelling indictment of a culture -- our culture, the smug, secular culture of proselytizing liberalism.

Like many profound books, Coercing Virtue does not attempt to say anything new. Instead, it does something that is at once more valuable and more difficult: It reminds us of old, familiar truths -- so familiar that they are everywhere neglected. "Democracy" means the rule of the people and its duly elected representatives, not the rule of unelected judges. Professional do-gooders, intoxicated by the emotion of virtue, are dangerous threats to public tranquility. Traditional morality became traditional largely because it provided sound answers to the hard problems of human frailty. Custom and convention are generally not the enemy of freedom but, on the contrary, something closer to its precondition. The single-minded pursuit of self- fulfillment is self-defeating. Individuality, like freedom, thrives best when limited by commitment and respect for values that transcend the individual.

These are the sorts of insights -- plain but deep -- that form the moral background of Bork's argument in Coercing Virtue. The foreground is supplied by his wide-ranging consideration of the way law has been perverted into a Weapon of Mass Induction for left-wing activists bent on disenfranchising a public they regard as insufficiently enlightened.

Left to their own devices, most people tend to be mildly traditionalist. They are skeptical of ambitious social programs -- not because they are callous but because the hard school of experience has taught them that such experiments breed more misery than happiness. They distrust utopian schemes for the same reason. They are proud of their country. They draw solace from their religion. They do not believe that pictures of crucifixes dipped in urine should be hailed as important works of art. They recoil from the degradation of manners and popular culture. They worry about the moral education of their children.

In all this, the majority of the public -- which means the majority of the electorate -- poses a grave problem for the virtuecratic minority committed to boosting us all up to their own level of enlightenment. The public tends to elect moderates and resists assaults on traditional morality. The response of the Left has been to circumvent the will of the people by judicial activism -- that is, by judges who do not apply the law but bend it to further the social and moral agenda of the Left.

Some observers have described this ideological deformation of the judiciary as the "American disease." American it may have been in origin. But it is part of the burden of Coercing Virtue to show how judicial activism has metastasized. It is now a thriving international concern, alive and well wherever right-thinking -- by which I mean left-leaning -- elites have attained critical mass. From Canada to Israel (home, Bork argues, to "the most activist, antidemocratic court in the world"), rule by appointed magistrates is increasingly common. In Europe, international tribunals sprout like mushrooms. The International Criminal Court, founded in 1998, claims jurisdiction over every person in the world.

Back home, American judges have increasingly turned to international sources for precedents. Justice Stephen Breyer says he found it "useful" to consult the Privy Council of Jamaica, the Supreme Court of India, and the Supreme Court of Zimbabwe. Everywhere, Bork observes, one sees a tendency on the part of judges "to minimize the historical understanding of their own constitutions in favor of what they perceive as an international morality."

It goes without saying that by "international morality" what is meant is "politically correct, left-liberal morality." (The European Commission, for example, has decreed that "xenophobia" and "racism" are crimes punishable by up to two years in prison.) This leads to a familiar asymmetry -- what Bork calls "organized hypocrisy" -- according to which virtue is determined by political coloring. A judge in Spain issues a warrant for the arrest of General Pinochet, who was then receiving medical treatment in England. At the same time, both French and Spanish courts had dismissed proceedings against Fidel Castro. "It is," Bork comments, "somewhat nauseating to hear the law forbidding 'crimes against humanity' when it is obvious that what is involved is not law but politicized force." My only quibble is with the word "somewhat."