Torture, Terrorism, and the Halakhah 27
exercise of official power is limited by the rule of law and a commitment to human rights. We define ourselves as a democracy; as such, we are a society that offers legal protections to the criminal suspect and that looks with suspicion upon every effort by our governmental authorities to exceed the legallyestablished limits of their power. This means that we are fundamentally different from our enemies. Our deepest ideals and commitments as a society oblige us to deny ourselves a tool of investigation that, however efficient it may be, stands in contradiction to our democratic ethos. This implies that our“no” to state-sponsored torture is not evidence of our weakness in the face of murderous violence but of our dedication to the rule of law. That dedication proves our moral superiority over our foes and will, in the end, guarantee our triumph and survival as a society.
What has Barak accomplished in telling this story? Is this exercise in narrative truly necessary to his judicial role? Some legal scholars, relying upon the traditional distinction between a court’s decision strictly construed(the“holding”) and everything else that the opinion coveys(“dicta”)," would dismiss the narrative sections of the opinion as superfluous to its main business, which is to declare that torture is prohibited under the current statutes governing interrogations. The decision stands by itself and does not need the narrative. The holding, and nothing but the holding, is law properly so called; all the rest is extraneous verbiage. Yet this view betrays a misunderstanding of the way that narrative functions in legal discourse. The stories told by litigants, lawyers, and judges provide explanation and context, purpose and coherence to the legal life and acts of a community. They are not to be considered as frills, as literary embellishments of the true substance of the law, but rather part of and parcel of law itself, the embodiment of the cultural, ideological, and at times theological commitments that make a community’s legal thought possible and meaningful. As Robert Cover has memorably put it:*
No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning... In this normative world, law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse, to be supplied with history and destiny, beginning and end, explanation and purpose. And every narrative is insistent in its