Coercing Virtue: The Worldwide Rule of Judges [Hardcover]

Robert H. Bork (Author)

Book Description

Publication Date: September 2003

In general, courts have been activist in opposing majority views on such matters as sexual practices, secularism versus religion, rights of speech and expression and feminism. This judicial activism appears to impinge on the legitimate domains of the executive and legislative branches of government and constitutes the judicialization of politics and morals.

According to Bork, a number of courts tend to act in this activist fashion. As well, international tribunals appear to exceed their jurisdiction, posing a threat to national sovereignty just as the national courts threaten democratic government. This activism is more than a threat; Bork argues that both sovereignty and self-government have already been seriously damaged.

Coercing Virtue attempts to account for the phenomenon of why so may courts in democratic nations behave in an imperialistic manner and why the results almost always appear to advance the liberal political and cultural agenda.

Editorial Reviews

From Booklist

It may not reach the best-seller lists, as the much bigger Slouching towards Gomorrah (1996) did, but this concentrated and cogent statement on the preeminent object of his concern--the state of the judiciary--may be Bork's most important book for nonspecialist readers. Throughout the world, Bork says, judges rather than legislators are making and repealing laws, and internationalizing law as they do. Getting to particulars, he discusses the U.S., Canadian, and Israeli supreme courts, adducing evidence of each deciding cases partisanly and ideologically rather than according to the letter and documented intent of constitutional law. Such judicial subjectiveness begins early--Marbury v. Madison (1803), which established the practice of judicial review, brazenly favored Chief Justice Marshall's Federalist Party against President Jefferson's Democratic Republican administration--but reaches its present peak in the Israeli court's self-appointment of new members and assumption that all behavior of whatever kind falls within its purview, regardless of whether any suits have been filed. Of course, what Bork finds alarming, others hail as liberating. Fine argument, though. Ray Olson
Copyright © American Library Association. All rights reserved

From the Inside Flap

Judge Robert H. Bork will deliver the Barbara Frum Historical Lecture at the University of Toronto in March 2002. This annual lecture "on a subject of contemporary history in historical perspective" was established in memory of Barbara Frum and will be broadcast on the CBC Radio program Ideas.

In Coercing Virtue, former US solicitor general Robert H. Bork examines judicial activism and the practice of many courts as they consider and decide matters that are not committed to their authority. In his opinion, this practice infringes on the legitimate domains of the executive and legislative branches of government and constitutes a judicialization of politics and morals. Should courts be used as a vehicle of social change even if the majority view weighs against the court's ruling? And if we allow courts to make law, especially in a country like Canada where our Supreme Court judges aren't even elected, then what does this mean for democratic government?

"The nations of the West have long been afraid of catching the "American disease" — the seizure by judges of authority properly belonging to the people and their elected representatives. Those nations are learning, perhaps too late, that this imperialism is not an American disease; it is a judicial disease, one that knows no boundaries." — Robert H. Bork, from Coercing Virtue --This text refers to the Paperback edition.

See all Editorial Reviews

Product Details

• Hardcover: 176 pages
• Publisher: Aei Press (September 2003)
• Language: English
• ISBN-10: 0844741620
• ISBN-13: 978-0844741628
• Product Dimensions: 5.5 x 0.8 x 8.5 inches
• Shipping Weight: 12 ounces (View shipping rates and policies)
• Average Customer Review: 3.6 out of 5 stars  See all reviews (24 customer reviews)
• Amazon Best Sellers Rank: #620,589 in Books (See Top 100 in Books)
  • #63 in Books > Politics & Social Sciences > Politics & Government > International & World Politics > Canadian

More About the Author

Discover books, learn about writers, read author blogs, and more.

Most Helpful Customer Reviews

49 of 61 people found the following review helpful

5.0 out of 5 stars Hottest issue in America today September 27, 2003

By Lisa Ann Forte

Format:Hardcover

With a ruling from the 9th Circuit Court of Appeals in California outlawing our Pledge of Allegiance because it contains the words, "one nation under God," and the case of Lawrence v. Texas in which a constitutionally protected 'right' to sodomy was discovered, there couldn't be a more informative and timely book or a better author on the subject of law, precedent, and the role of the judiciary in America. Robert Bork presents factual evidence of worldwide judicial tyranny.

While the 11th Circuit puts the 10 Commandments in the closet in Alabama and the 3rd U.S. Circuit Court of Appeals finds that a 4-year-old had no right to give out pencils that said "Jesus loves the little children" as Easter presents to classmates, we must ask ourselves: are we ruled by Law or by Men? To quote the author from one interview, "The nations in the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying the law in accordance with nothing other than their own will."

How will you decide this issue of judicial activism? Will you champion various court decisions because they align with your worldview, despite the consequences to our unique constitutional form of government in America and the delicate balance of power and culture between nations? U.S. Supreme Court Justice Anthony Kennedy cited *foreign* court rulings as a basis (in part) for his decision in Lawrence v. Texas, and Ruth Bater Ginsberg was later quoted affirming and defending that practice. The New York Times has reported openly and approvingly that judges are engaging in a "worldwide constitutional conversation."

Research through the pages of this book what in the world is going on with the judiciary. Become informed about why the unique foundations of American law and jurisprudence are vital to the freedoms we all hold dear and to civilization as we know it.

29 of 36 people found the following review helpful

4.0 out of 5 stars One Court, one vote....... January 14, 2004

By Gary C. Marfin

Format:Hardcover

Robert Bork's thesis is that "the rule of law has become confused with -- indeed subverted by -- by the rule of judges." This is, he contends, precisely what judidicial activism seeks to accomplish. The result, Bork argues, is minority rule, and the minority "at least for the foreseeable future" is the New Class, a group Bork describes as "overwhelmingly liberal [leftist] in its outlook." Readers, in my opinion, would do well to remember that Bork attacks judicial activism principally because it is anti-democratic. There is, he thinks, a strong tendency for activism and liberalism to arrive in the same package, but it is not inevitable. Yet, in the countries he examines -- Canada, Israel and the U.S. -- he finds a leftist judiciary usurping legislative power. More interesting, in my view, than his country-specific examples, was his discussion of the deference that Courts around the world are increasingly paying to international law, and international courts. "The major difficulty," he contends, "with international law is that it converts what are essentially problems of international morality, as defined by a particular community, into arguments about law that are largely drained of morality."

The validity of Mr. Bork's central contention is difficult to evaluate. It requires finding counter-examples, or their absence, in the mass of law he has surveyed. That is beyond the scope of the ordinary citizen (not to mention this reviewer). However, assuming Bork's argument is valid, two inter-related puzzles surface. (1) Why are we not seeing more of a backlash against the "rule of judges" in democracies that have experienced judicial activism? (2) Why are Courts continually held in high esteem? Discussing the case of Israel, Bork finds "less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them." Fair enough, but why, then, do Israelis continue the charade? Bork is aware of the problem, and he correctly notes that a range of factors might contribute to the apathetic response he witnesses. The one possibility he seems not to consider is that the thesis itself is flawed; that, however it may look to him, citizens are obtaining from Courts outcomes consistent with their expectations. Of course, such an answer would still not satisfy Bork: Courts are not just about outcomes, but about processes, and activists that stray from the intent of the law they interpret are writing law, not finding it. The underlying problem may have much less to do about citizens recapturing lost ground from allegedly wayward Courts, and much more about what it means to be a citizen. Bork's lamentation may be on target: "Perhaps a preference for immediate victories is part of the spirit of our times." Perhaps citizens are weary and cynical. Perhaps "the old civics lessons," which Bork believes are still sound, are evolving in ways that differ from the past. Coming to grips with these and other such issues constitutes, at least for me, the principal reason to read and contemplate Robert Bork's case.

18 of 24 people found the following review helpful

4.0 out of 5 stars Insight from a good teacher October 6, 2003

By E. Kelly

Format:Hardcover

The book offer a very convincing, if frightening, view of modern jurisprudence (sic, lack of "prudence").

Bob Bork completes the one-two-three punch by comparing the court activists in the U.S., Canada, and Israel. He traces the major activists back to their dirty, little holes. He accurately shows how judges, from many parts of the World, have replaced the rule of law with the rule of judges. Interestingly, the U.S., while in dire condition, is not the worst. Israel takes the anti-democratic cake. In Israel, the Supreme Court has made itself the arbiter of all laws and state policies, including defense policy and procedures. The Prime Minister and Knesset are a secondary part of government.

The common tread holding judges in such absolute, non checkable power is the vociferous public drubbing anyone takes who questions whether a judge's ruling is really law. This has led to most important "law" being made by unelected. It has dissipated the moral calculations of the legislature in favor of the moral calculations of the judges. They have become so bold as to ignore the black letter of the statute in favor of what they believe a "smart" legislature would or should have wanted to enact.

Bob Bork says that there are four approaches for correcting the fast slide into dictatorship. The first two deal with using the mechanisms in the Constitution to reign in the courts. But, since the courts don't really pay attention to the Constitution, he doesn't think these have any hope of success. I momentarily forget his third approach - equally short on probability of success. He says the best of the four is mere holding action: Attempt to change the law culture to spurn judicial activism in favor of (Justice Scalia's term) textual-ism. Frankly, Bork holds little hope for success for any restoration of the rule of law (verses rule of judges). Because, eventually, a judge will issue an activist ruling racketing the law in the direction of the minority, New Class.

I rate the book 4-stars because the material's presentation is a bit dry. But, you have to love this guy: After decades of service to his country, he continues to plug away in the service of ordered liberty. Thanks Mr. Bork for taking the time to teach about the law.