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PDF FormatWhether the community is only a metaphor or describes an identifiable set of people (recognizable, Barak’s critics say, by postal zip code, social affiliation and party loyalty), the implications of the term are unavoidable. The “enlightened community,” by dint of its identification with values of universalism and progressivism, will unfailingly direct the judge towards the defense of individual rights and equality, values which Israel shares with democratic states around the world, and never towards the unique demands of a Jewish state. Especially telling is Barak’s reference to an enlightened community that is “neither a Jewish nor a non-Jewish community”—which means that its Jewishness is irrelevant. Our enlightened hypothetes, asked to choose in a hard case between Israel’s Jewish and democratic values, will unflinchingly pick the latter. Having been defined as universalists with no particular sympathy for Judaism, the community’s hapless citizens are left with no choice. This is true even if the majority of the Israeli public would prefer Jewish values in a given case, for the truly enlightened community upholds universal values even when “the great majority of the public” does not accept them, and it is this community, Barak insists, which the judge must follow.
Thus, the “objective” standard of the enlightened community ends up pushing the judge in precisely those directions—more democratic and less Jewish—in which Barak is in any case predisposed to encourage him. Dan Avnon, a lecturer in political science at the Hebrew University in Jerusalem, points out that despite the concept’s claim to objectivity, “in practice it expresses a liberal worldview, acceptable to a part of the Jewish public in the State of Israel. Given the fact that the Knesset did not explicitly rule that liberal values have preferred status in the political system of Israel, interpretation of the purpose clause in light of the “enlightened community” test will necessarily be received within the wider community as an expression of a subjective worldview, acceptable [only] to parts of the Jewish public in Israel.”73 Though Barak’s implementation of the metaphor clearly places the Supreme Court on one side of an ongoing ideological debate in Israel, the concept suffers from a chronic ambiguity that impairs any serious discussion of its implications. It is difficult to know which values are to be deemed “fundamental,” and which “fleeting.” On the one hand, the judge is to reject transient views and refer to “the long-term beliefs of society,” “the basic and substantial,” and to reflect the “basic credo of the nation”; on the other hand, “fundamental values may change over the years,” “the basic outlook of the ‘enlightened community’ is not set and static” but “in constant flux,” and woe be unto the judge whose values “reflect the enlightened community of the past.” The result is that any serious attempt to critique the idea is met with a wall of conceptual clouds that frustrates all efforts to pin down the term.
In the elusive quest for a residual source of law, Barak is not alone. After all, judges of the English and French tradition have long struggled to elucidate and apply vague normative concepts like “public policy” or ordre publique. Barak’s “enlightened community” purports to offer “a compass for the right direction of judicial decision.” And it may indeed contribute to Israeli jurisprudence, if it prompts judges to look beyond themselves and into the fundamental values of their society. At the end of the day, however, one is left with the sense that a judge who searches for the values of the “enlightened community” is likely to find them inside himself—and then use the metaphor to justify his subjective conclusions.74
The Basic Laws of 1992 involved a departure from the past that went well beyond the recognition of Israel’s “Jewish and democratic” values. The new laws also “entrenched” certain rights, binding all subsequent legislation to the standards set by the new laws. In this regard, they were unlike any previous Basic Laws, which established or regulated important institutions, or enshrined national symbols (e.g., Basic Law: Jerusalem Capital of Israel), but did not purport to bind future legislation.75
Prior to the laws’ passage, Aharon Barak had worked to expand the court’s role through the case-by-case erosion of doctrines, such as standing and justiciability, that had traditionally limited judicial activism. Occasionally, Barak suggested additional quantum leaps in the court’s privilege, as in his famous statement in the Tnu’at L’or case, in which he hinted at the court’s capacity to strike down Knesset laws even in the absence of any statutory license to do so.76 Nonetheless, even Barak stopped short of arrogating such authority, and as a result, Israel’s highest court still shied from asserting the power to review and annul duly enacted legislation. Any litigant arguing that a state law conflicted with “higher” norms would find the court powerless to provide a remedy.
When in 1992 that power was finally granted to the court by the new Basic Laws—albeit implicitly 77 and with numerous structural flaws and anomalies—it was Barak who immediately proclaimed a “constitutional revolution.” Barak boldly seized on the limited enactments—carefully smoothing out their bumps and methodically covering their defects—in order to win for the Israeli Supreme Court the sort of power enjoyed by its counterparts in the United States or Canada, despite the fact that unlike the latter, Israel had never actually undergone any serious constitutional adoption process. In a 1992 manifesto entitled “Constitutional Revolution,” Barak celebrated the Israeli judiciary’s acquisition of the ultimate weapon:
If up until now judges were given “conventional weapons” to deal with legislation by way of interpretation and the creation of Israeli common law, now judges have been given “nonconventional weapons,” which allow nullification of legislation which does not observe the Basic Laws’ criteria.78
Three years later, in the landmark 1995 Bank Mizrahi ruling interpreting those Basic Laws, Barak and his fellow justices translated the revolutionary implications of his earlier essay into the language of a judicial decision.79 The opening paragraph of Barak’s 139-page opinion in that case summed up the new normative hierarchy:
With legislation of [the new Basic Laws] a substantial change occurred in the status of human rights in Israel. They have turned into constitutional rights. They have been given supra-legal constitutional status. A “regular” law of the Knesset cannot change them. Regular legislation cannot infringe a protected human right unless the demands set out in the Basic Laws are met. Nonobservance of the constitutional demands turns the regular statute into an unconstitutional statute. This is a statute which bears a constitutional flaw. The court can declare its invalidity.80
In short, Israel’s courts, spurred on by Barak’s interpretation, acquired the ultimate power to strike down acts of parliament that fail to live up to the civil-rights obligations enshrined in the Basic Laws.81
Israeli courts have yet to nullify a Knesset statute under the new Basic Laws, but the constitutional revolution is well under way. The 1992 Basic Laws are already cited in a great many cases that are brought before the High Court of Justice. Precisely because of their constitutional status, they are accorded greater weight than other, “ordinary” laws, and often form the basis for rulings on government actions or the interpretation of existing laws. Even though Basic Law: Human Dignity and Liberty was injected with an explicit grandfather clause meant to immunize all pre-1992 laws, the Supreme Court employs a variety of interpretive techniques to circumvent that limitation and—often sacrificing the plain meaning of the text or the original intent of the legislators—applies the statute regardless. But perhaps the most significant outcome is that in the face of potential Supreme Court review, Knesset legislators are loathe to pass laws which, in their judgment, a Barak-led court would likely overturn. In effect, Barak’s “constitutional revolution” has effected a far-reaching judicial preemption, the consequences of which differ little from those of actual judicial review.
To understand what might be in store for Israel once the Supreme Court crosses the Rubicon of review, it is instructive to look at the experience of Canada since it underwent a similar constitutional transformation with its 1982 adoption of a Charter of Rights.82 The Canadian experience is especially relevant because its Charter of Rights served legislators in Israel as a model for some of the key provisions in the new Basic Laws.83 This in turn has given rise to acute Israeli interest in Canadian judicial and academic interpretations of the Charter, with several Israeli judges—Barak the first among them—increasingly referring in their decisions to Canadian constitutional jurisprudence.84
