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.

But in the absence of these exceptions, concludes Barak, the courts must be allowed to exercise judicial review on the widest possible range of issues to ensure that every public body acts within the law.31 Traditional rules of standing and justiciability cannot be allowed to get in the way of judicial review—and indeed, they have not. President Barak and his fellow justices have ruled in recent years on governmental decisions and actions which in the past were denied review: In Ressler, the granting of draft deferrals to yeshiva students; in Sarid v. Knesset Speaker and later cases, the procedural validity of Knesset decisions; in Barzilai v. Government of Israel, the power of Israel’s president to grant pre-conviction pardons; and in Zherzhevsky v. Prime Minister, the legality of political agreements.32 Israeli law on standing has become, according to McGill University law professor Irwin Cotler, “the broadest of any parliamentary democracy in the world,” while “the law on ‘justiciability’ ... is also the broadest of any democracy.”33 
In casting the Supreme Court’s net so wide, Aharon Barak has succeeded in attaining a high level of protection of the rule of law. No government official in Israel today is likely to imagine that his actions cannot be brought before the Barak Court; indeed, a sizable number of government moves have already met this fate. Yet the vigorous enforcement of the “rule of law” has gone hand in hand with the dominion by judges over an ever-expanding empire, and has brought with it a number of serious difficulties for the political system, and for society as a whole.
The problems begin in the theoretical realm, with the presumption that “the world is filled with law.” This expression should sound familiar to anyone versed in Jewish liturgy: Twice a day in the traditional prayers, the congregation affirms that “the world is filled with his glory.”34 As the Europeans once appropriated the concept of divine sovereignty for the state, Barak fills the world not with God’s “glory” but with the law of the land. Indeed, one could easily mistake Barak’s application of law to “every human behavior” (including “subjective thoughts”) and to “every act of commission or omission”—for a description of the orthodox halacha. As a religious and moral code, halacha is frequently described as a legal system applicable to every aspect of human existence, from the bedroom to the boardroom to the battlefield. Rarely, though, does one conceive of Israeli law in similar terms.35
A danger inherent in these maximalist views, and which threatens to grow over time, is the blurring between the juridical and other spheres, especially the political. Such a distortion begins on the level of theory and ends in a judiciary willing to bring about what Ariel Rosen-Zvi, the late dean of the law school at Tel Aviv University, called the “legalization of life.”36 There is hardly a single issue of national importance in Israel which does not quickly turn up in the Supreme Court. When the latter sits as High Court of Justice, a court of first and last instance, Israeli citizens enjoy the rare luxury of immediate and inexpensive access to the highest court in the land.37 Domestic policy matters are now taken to the High Court shortly after, or even before, they have been resolved by policymakers. Media coverage of government action invariably includes an extensive report of how petitions against the move are faring, and how the court is likely to rule.
The effect of the legalization of Israeli life goes beyond the specifics of individual court cases. “The arrangement of relationships and spheres of activity in a legal fashion as a substitute for social and moral arrangements,” wrote Rosen-Zvi, “introduces a dimension of formalism into life, and causes questions concerning values to be dealt with by formal tools.”38 Rather than allowing the political process to handle problems through consensus-building and compromises, the current system encourages the reduction of value-laden issues to technical legal questions, to be resolved by adjudication. The political process, for all its flaws, is quite adept at balancing the interests of the great bulk of the citizenry and reflecting its values; the decisions it produces are, in the aggregate, likely to satisfy the largest number of people while angering the fewest. The formalized judicial process, on the other hand, is not built to take into account these interests and values, and can easily produce decisions that impose the will of a small minority upon the majority.
But beyond the risk of distorting the public’s values, too much intervention harms the nation’s political culture. In Israel, government officials have learned to fear public law, rather than the public itself. Judicial micro-governance creates the impression that anything that stands the test of the High Court need not stand the test of public opinion. Citizens find their inclination to police elected leaders numbed, and politicians learn to measure their actions against a jurisprudential yardstick, rather than one of propriety or voter opinion. In most democracies, by contrast, it is the looming ballot box and not the judiciary which effectively vetoes ill-considered political appointments and serves as the principal check on government wrongdoing. A measure of judicial restraint on certain key issues would encourage government accountability to the people, not just to the bench.
Similarly, the court’s tendency to intervene in matters of policy discourages ideological rivals from making an effort to persuade one another, or to rally the support of uncommitted segments of the population. Such advocacy work has the effect over time of building consensus, encouraging compromise among diverse elements of society, and raising the level of debate. The high probability of judicial intervention, however, has left many activists feeling that their resources are better invested in a decisive legal victory than in a persuasive public campaign, or in negotiating a mutually acceptable outcome. Those groups who find their efforts constantly thwarted by the High Court come to despair of the benefits of cultivating public support, and those who frequently merit High Court approval need not trouble themselves with public opinion or accommodation. In this atmosphere, disputes are neither settled nor resolved; they are merely decided, usually keeping one party’s rancor, and the other’s callous disregard, well preserved.
Proponents of judicial activism are quick to cite its palpable benefits. In large part, the courts are reacting to genuine problems, such as political corruption, which might otherwise go unchecked. As Justice Yitzchak Zamir has noted, Israeli political culture is weak.39 Norms of adherence to the law and professionalism in government are less developed than in many other democracies. The nature of coalition government tends to produce questionable, if not unsavory, political dealings. The absence of a written constitution, and the substitution of a patchwork of Basic Laws—which can be easily amended or repealed—injects a constant element of uncertainty. Lacking institutional checks and balances, the system as a whole often depends on the court for protection; Barak’s approach, shared by other judges as well, helps to guarantee the protection of individual rights, and to assure at least a modicum of “clean government.” In Eisenberg v. Minister of Housing,40 for example, when the government appointed as Housing Ministry director-general a former General Security Service official who had twice perjured himself in agency scandals, the appointment was disqualified in a Barak-authored ruling. Lengthy Barak decisions ordered the investigation of the national police chief on allegations of accepting sizable discounts from hotels,41 and forced the resignation of Aryeh Der’i as interior minister after he was indicted on charges of corruption.42 In numerous cases, the courts have defended freedom of expression against both an absence of statutory protection and a governmental disdain for the marketplace of ideas. Without the court, the argument goes, Israel might come to resemble a banana republic.
Yet a philosophy which sees law everywhere is ill-suited for discerning, and therefore staying out of, those cases in which individual rights and the rule of law are not genuinely under threat. In defense of these principles a court can easily substitute its own judgment for that of the elected branches, and its own values for those of the populace. In the name of the rule of law or the principle of “reasonability,” Barak and his fellow justices have wandered into a minefield of deeply-held values about religion and society. And in Barak’s case, such overreaching is especially problematic, given the sort of normative approach and judicial reasoning he applies to these issues—and in particular, his interpretation of the rights-enshrining Basic Laws of 1992.

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