Aharon Barak’s Revolution

By Hillel Neuer

The driving force behind Israel’s constitutional revolution is Aharon Barak, president of what may be the most activist supreme court in the world. An intellectual profile.

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In recent years, the state of Israel has undergone a constitutional revolution that has remarkably escaped the notice of most Israelis. With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court’s opinion violates normative human rights guarantees.1 Although the court has yet to play that particular card, every indication is that even if Israel does not adopt a formal constitution, the day is not far off when laws passed by the Knesset will routinely face the review of a Supreme Court charged with the duty of protecting an entrenched set of superceding legal norms.
The 1992 laws represent a dramatic step towards the constitutionalization of Israeli law, a trend captained by the country’s much-admired Supreme Court. Since the early years of the state, the court has proven willing and able to discern, infer or interpret protection of individual rights within the law, despite the absence of explicit statutory authorization to do so.2 The sudden appearance of the 1992 statutes, overtly welcomed by an activist court, meant that for the first time the judiciary could anchor its protection of rights in the solid ground of black-letter law which, it has taken great pains to show, is also constitutional in nature.
Leading the charge of this judicial vanguard is Aharon Barak, a Supreme Court justice since 1978 and the court’s president since 1995. Prior to the 1992 Basic Laws, Barak consistently and successfully challenged the traditional legal doctrines limiting the court’s purview, and encouraged the court’s intercession in an ever-growing range of issues. The laws’ passage and Barak’s ascendance to the presidency have dramatically improved his ability to champion the constitutional revolution. Considering that his stewardship of the court is to last for another decade, Aharon Barak may well be the single most influential person in Israeli public life today.
Barak has famously portrayed the legal and judicial system as an orchestra of different musicians, with the Supreme Court as the conductor who assures synchronization and coordination.3 If so, Barak is the undisputed conductor of conductors. Over a judicial career spanning nearly twenty years, Barak has developed and implemented a radical judicial philosophy based on the application of legal criteria to an unprecedentedly wide array of circumstances—with the result that today virtually every controversy of Israeli public life ends up, sooner rather than later, in a courtroom. The Supreme Court’s unprecedented power to shape the ideological debate in Israel demands a closer look at Aharon Barak’s judicial worldview, and in particular his views on the role of the court in a democratic society and on the new Basic Law provisions enshrining the values of Israel as a “Jewish and democratic” state.

Hillel Neuer is a Graduate Fellow at The Shalem Center in Jerusalem.

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