Mark Washofsky

demand for its prescriptive point, its moral. History and literature cannot escape their location in a normative universe, nor can prescription, even when embodied in a legal text, escape its origin and its end in experience... The narratives that any particular group associates with the law bespeak the range of the group’s commitments. Those narratives also provide the resources for justification, condemnation, and argument by actors within the group, who must struggle to live their law.

We should bear in mind, too, that the opinion, the chief literary form of appellate court communication, has always been more than the mere statement of the holding, the legal bottom line. As a genre of judicial writing, the opinion serves as the argumentative exposition in support of the ruling. Its function is an essentially rhetorical one: to explain the decision, to offer reasons for it, to persuade the judge’s intended audience to think about this particular question of law in this particular way and to think about themselves as the particular kind of community that the narrative describes or evokes.’® This task can be performed only by means of a consciously employed judicial rhetoric in which the element of narrative figures prominently. At times, the goal of persuasion may be much more difficult to accomplish; in such instances, the narrative elements of this opinion will be expanded and developed accordingly. In the case before us, Barak wishes not only to issue his ruling but to“sell” it to a public that has good reason to question its wisdom. To restrict the investigative methods employed by the security forces might significantly hinder their efforts to foil terrorists. The decision leaves the Court open to the charge that it bears moral responsibility for the lives lost in the next terrorist attack, lives that might have been saved had the police been permitted to“coax” a detainee into revealing what he knew about it in advance of its occurrence. Barak’s narrative is a two-fold response to this challenge. First, he openly acknowledges the horrific reality of terrorism, thereby validating the fears and concerns of the Israeli public and cementing a bond of fellow-feeling with his readers(“I am one of you; your experience is mine as well”). Second, he urges them to join him in putting that experience in its proper perspective. Let us not forget, Barak tells them, who we are. We are not terrorists. We are better than they are. We therefore must not sink to their level of violence. In so doing, he gives voice to the higher aspirations of Israel as a democratic society, calling upon his readers to live up to the admittedly exacting standards of justice and political morality that a liberal democratic community