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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.



I
n 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.
 
Aharon Barak was born in Kovno, Lithuania in 1936, survived the war in the ghetto there, and immigrated to Israel in 1947 with his parents. Intellectually precocious, his curriculum vitae is a spectacular array of accomplishments, which have earned him praise as “the law’s first genuine superstar.”4 He completed his first degree at the Hebrew University law faculty at age 22, received his doctorate in law there at 27, and by 32 rose to become a tenured professor. In 1974, at age 38, Barak was appointed dean of the law faculty at Hebrew University, and the year after was awarded the Israel Prize for law. Having reached the pinnacle of Israeli legal academia, Barak was appointed attorney-general, a post he held from 1975 to 1978. In that capacity, he made his mark by boldly prosecuting senior figures including Asher Yadlin, head of the Kupat Holim Clalit health fund and a leading candidate to head the Bank of Israel; Avraham Ofer, the minister of housing; and Leah Rabin, wife of then-Prime Minister Yitzhak Rabin.
During the talks leading up to the Camp David accords in September 1978, Prime Minister Menachem Begin invited Barak to join the Israeli negotiating team. Highly esteemed by both Begin and Jimmy Carter (the latter was so impressed with Barak that he jokingly offered him a seat on the U.S. Supreme Court), Barak played an important role as legal adviser, drafter and intermediary. When Begin resisted adding the term “legitimate” to the phrase “rights of the Palestinian people,” it was Aharon Barak who convinced him by arguing, “Can there be any rights which are not legitimate?”5 In 1978, Barak was named to Israel’s Supreme Court, and became the court’s deputy president in 1993. When Meir Shamgar retired in 1995, Barak succeeded him as Supreme Court president, a post he is slated to hold until he reaches the retirement age of seventy in 2006.
Barak’s legal philosophy begins with the belief that “the world is filled with law.” This idea, which Barak describes as his defining vision, portrays law as an all-encompassing framework of human affairs, from which no action can ever be immune: Whatever the law does not prohibit, it permits; either way, the law always has its say, on everything.6 The notion recurs inevitably, in some form or other, in most of Barak’s writings and decisions on the role of the court in society. As he expressed it in a 1992 article,
In my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity—such as friendship or subjective thoughts—is ruled by the autonomy of the individual will, this autonomy exists, because it is recognized by the law.... Wherever there are living human beings, law is there. There are no areas in life which are outside of law.7 
Barak’s doctrine of the ubiquity of law guides his formulation of other bedrock principles of governmental and jurisprudential theory, such as the rule of law, judicial review, justiciability and standing, separation of powers and constitutional supremacy. Each of these concepts in turn plays a critical role in building Barak’s vision of an enlightened and properly functioning democracy—one in which no person, institution or decision is bereft of the law’s embrace.
Yet that embrace is a fleeting one where governments are concerned. Driven by a wide variety of concerns other than law, executives and legislatures often disregard their obligation to work only within its framework.8 The judiciary’s role, according to Barak, is to protect fiercely the rule of law in a democratic society by ensuring the accessibility of the courts, demanding that legislation be clear, stable, general and publicized, and, above all, by keeping the actions of government under its ever-watchful eye. Only then can individual rights—the principal victim of government lawlessness—possess any meaning in practice, defended by the judiciary alone against the executive and legislative powers, who in the name of the public good are forever trampling upon the individual’s just claims.9
Inasmuch as the courts are the watchdog against government malfeasance, they require the power to enforce their opinion on as much as possible of what the government does. Whatever government actions or decisions are immune from judicial review have, according to Barak, escaped the reach of the law. And where the law does not shine, lives illegality and injustice.
The court’s capacity to protect the rule of law, however, is limited by the judge’s inherently passive role. No matter how much a government action may offend his sensibilities, a judge can only review a case that actually comes before him in court, and even then only if the complainant has a sufficiently direct interest in the case, and if the issue at hand is of the sort that courts are allowed to adjudicate. The more cases thrown out of court because they lack one of these prerequisites, the greater the hindrance to the judiciary’s ability to police the government via judicial review. It is out of this motivation that Aharon Barak advocates wide open rules on standing, and holds almost radical views with respect to its twin sister, justiciability.
The doctrine of locus standi, or “standing,” has traditionally dictated that only a party who has some substantive relation to the case—that is, someone who has suffered injury to a right or personal interest—can be heard. This restriction has long been regarded as an important means for courts to protect themselves from being overwhelmed by what the legal literature calls “unnecessary” litigation—cases that really do not require a judicial remedy, whose adjudication only distracts the court from its proper business.


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