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Mark Washofsky

since Barak, too, encases his ruling within a web of“ideology”— or narrative— that I would contend is essential to his legal purpose.

Let’s begin with Barak’s opinion. In her study of the Supreme Court ’s jurisprudence in terrorism cases, Leora Bilsky has noted that the Court“does not limit its decision to legalistic reasoning but also provides a legitimizing narrative for its intervention.”*

These narratives*® can be described as‘narratives of contrast,’ since the Court compares the terrorist on the one hand and the State of Israel on the other. On the basis of this contrast(‘we are not like them”) the Court justifies its refusal to uphold a policy that the security forces deem necessary in the fight against terror.. The limitations[on the use of force- MW] that the Court imposes, in other words, are presented as self-imposed limitations that underline the distinction between a democratic state and its enemies, who do not hesitate to use any means to further their goals.

Bilsky notes that, at the very outset of his opinion, Barak tells a story that establishes a moral contrast between the state of Israel and those who seek its destruction:*’

Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel ’s annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy.

Israel is locked in a life-and-death struggle with enemies who will stop at nothing to bring the state to its knees. Though this grim reality might in the public mind justify an equally brutal response by the security services, the Court urges the Israeli people to rise above their understandable fear and desire for vengeance. Evoking the“destiny” of the democratic state, the opinion reminds its readers that theirs is a society in which the