Aharon Barak
Encyclopedia
Aharon Barak is a Professor of Law at the Interdisciplinary Center
in Herzliya
and a lecturer in law at the Hebrew University of Jerusalem
, the Yale Law School
, and the University of Toronto Faculty of Law
.
Barak was President of the Supreme Court of Israel
from 1995 to 2006. Prior to that, he served as a Justice on the Supreme Court of Israel (1978–95), as the Attorney General of Israel
(1975–78), and as the Dean of the Law Faculty of the Hebrew University of Jerusalem (1974–75).
, Lithuania
, the only son of Zvi Brick, an attorney, and his wife Leah, a teacher. After the Nazi occupation of the city in 1941, the family spent three years in the Kovno ghetto. At the end of the war, after wandering through Hungary, Austria, and Italy, Barak and his parents reached Rome, where they spent the next two years. In 1947, they received travel papers and immigrated to Palestine. After a brief period on a moshav
, the family settled in Jerusalem.
He studied law, international relations
and economics
at the Hebrew University of Jerusalem, and obtained his Bachelor of Laws
in 1958. Between 1958 and 1960, having been drafted into the Israeli Defense Forces, he served in the office of the Financial Advisor to the Chief of Staff
. Upon discharging his service he returned to the Hebrew University, where he completed his doctoral dissertation with distinction in 1963. Simultaneously he began work as an intern
at the Attorney General's office. When the Attorney General began dealing with the trial of Adolf Eichmann
, Barak, being a holocaust survivor, preferred not to be involved in the work. He was transferred to the State Attorney's office to complete his internship at his request. Upon completing his internship he was recognised as a certified attorney
.
Barak is married to Elisheva Ososkin, former vice president of the National Labor Court, with whom he has three daughters and a son, all trained in the law.
. In 1968 he was appointed as a professor at the Hebrew University of Jerusalem, and in 1974 was named the Dean of its Law Faculty. In 1975, at 38 years of age, he was awarded the Israel Prize
for legal research. In the same year he became a member of the Israel Academy of Sciences and Humanities
. In 1978 he became a foreign member of the American Academy of Arts and Sciences
.
Barak was appointed by Israeli Prime Minister Menachem Begin
in 1978 as the legal advisor to the Israeli delegation for negotiating the Camp David Accords
. In his book Palestine: Peace Not Apartheid, Jimmy Carter
praises Barak as a negotiator despite the political disagreements between them.
– the youngest of all of the judges.
In 1982–83 he served as a member of the Kahan Commission
, a state investigation committee formed to investigate the circumstances surrounding the Sabra and Shatila massacre
. As part of the committee's conclusions, then Minister of Defense Ariel Sharon
was removed from his position. The committee further recommended that he never be appointed to that position again in the future. In 1993, with the retirement of the Deputy President of the Supreme Court Menachem Elon
, Barak was appointed the Deputy President. Subsequently, with the retirement of the President Meir Shamgar
on August 13, 1995, Barak was appointed the President of the Supreme Court.
In the course of his service on the Supreme Court Barak greatly expanded the range of issues with which the court dealt. He canceled the standing
test which Israel's Supreme Court had used frequently, and greatly expanded the scope of justiciability
by allowing petitions on a range of matters. Professor Daphna Barak-Erez commented that:
Simultaneously, he advanced a number of standards, both for public administration
(mainly, the standard of the reasonableness of the administrative decision) and in the private sector
(the standard of good faith
), while blurring the distinction between the two. Barak's critics have argued that, in doing so, the Supreme Court under his leadership harmed judicial consistency and stability, particularly in the private sector.
Since 1992, much of his judicial work was focused on advancing and shaping Israel's Constitutional Revolution (a phrase which he coined), which he believed was brought about by the adoption of Basic Laws
in the Israeli Knesset
dealing with human rights
. According to Barak's approach, which was adopted by the Supreme Court, the Constitutional Revolution brought values such as the Right to Equality, Freedom of Employment and Freedom of Speech to a position of normative supremacy, and thereby granted the courts (not just the Supreme Court) the ability to strike down legislation which is inconsistent with the rights embodied in the Basic Laws. Consequently, Barak held that the State of Israel has been transformed from a parliamentary democracy to a constitutional parliamentary democracy, in that its Basic Laws were to be interpreted as its constitution.
During his time as President of the Supreme Court, Barak advanced a judicial activist approach, whereby the court was not required to limit itself to judicial interpretation
, but rather was permitted to fill the gaps in the law through judicial legislation at common law
. This approach was highly controversial and was met with much opposition, including by some politicians. The Israeli legal commentator Ze'ev Segal wrote in a 2004 article, "Barak sees the Supreme Court as a [force for societal change], far beyond the primary role as a decisor in disputes. The Supreme Court under his leadership is fulfilling a central role in the shaping of Israeli law, not much less than [the role of] the Knesset. Barak is the leading power in the court, as a key judge in it for a quarter of a century, and as the number 1 judge for some 10 years now."
On September 14, 2006, upon reaching the mandatory age, Barak retired from the Supreme Court. Three months later he published his final judgments, among them a number of precedents regarding damages in tort
for residents of the Palestinian territories
, Israel's policy of targeted killing
, and preferential treatment for IDF veterans.
Researcher Norman Finkelstein
says that Aharon Barak was "a leading proponent" of guidelines allowing torture — making Israel the "only country in the world where torture was legally sanctioned," according to the Israeli human rights group B'Tselem
.
Parallel to his service in the Supreme Court, Barak also served as the head of a committee which, for some twenty years, drafted the Israeli Civil Codex, which united the 24 main civil law statutes in Israeli law under a single comprehensive law.
in Herzliya, and he teaches in the Masters' Degree program for Commercial Law. He also lectures in the Bachelor of Laws
program. In addition, he continues to lecture at both the Yale Law School
and the University of Alabama
in the United States, as well as lecturing as a Distinguished Visitor at the University of Toronto
Faculty of Law
.
as its constitution, and challenged Israeli parliament (Knesset) laws on that basis. Two of his books on legal commentary have been translated to English.
Following his retirement from the Supreme Court, the new President of the Court, Judge Dorit Beinisch
, said at his farewell ceremony:
On the issue of the substantial expansion of the right of standing
and the test of reasonableness of an administrative decision (which grants the courts the power to overrule an administrative decision if the judge is convinced that it does not "stand [within the] bounds of reasonableness"), Professor Amnon Rubinstein
, a liberal Israeli politician, wrote:
Among critics of Barak's judicial activism are former President of the Supreme Court of Israel Moshe Landau
, Professor Ruth Gavison
, and Richard Posner
.
Richard Posner
, a judge on the United States Court of Appeals for the Seventh Circuit
and authority on jurisprudence, is a fierce critic of Barak's activist judicial approach. He criticised Barak's decision to interpret the Basic Laws as Israel's constitution, stating that "only in Israel ... do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision." He also argues that Barak's idea of the courts enforcing a set of rights which they find in "substantive" democracy, rather than merely democratic political rights, actually involves a curtailing of democracy and results in a "hyperactive judiciary." Furthermore, he claims that Barak's approach to the interpretation of statutes involves, in practice, interpretation in the context of the judge's own personal ideal system, and "opens up a vast realm for discretionary judgment", rather than providing for an objective interpretation of the statute. He is also critical of Barak's view of the separation of powers
, arguing that, in effect, it is that "judicial power is unlimited and the legislature cannot remove judges." He also asserts that Barak fails to apply his own judicial philosophy in practice at times. Nevertheless, Posner said that "Barak himself is by all accounts brilliant, as well as austere and high-minded – Israel's Cato", and that while he would not regard Barak's judicial approach as a desirable universal model, it may be suited to Israel's specific circumstances. He also suggested that if there were a Nobel prize
for law, Barak would likely be among its early recipients.
Beyond the legal community, on both the left and right of the political spectrum, there are those who were highly critical of Barak. His judgments on matters of security, in particular, have been subject to criticism by some on both the left and the right.
Barak is a secular Jew but believes in compromise with the religious sector, and state support for religion. His judgments on the interaction between religion and state have led to hostility towards him by some in the religious public. Religious Jews from all sectors of society (including both Haredim and Religious Zionists
) held a mass protest against the Supreme Court under his Presidency, after the Supreme Court ruled that in cases of divorce the Israeli Religious courts of law are required to decide property disputes according to the law of the Knesset
rather than according to the Halacha.
Barak's legal philosophy starts with the belief that "the world is filled with law." This idea 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.
In 2005, he was voted the 39th-greatest Israeli of all time, in a poll by the Israeli news website Ynet
to determine whom the general public considered the 200 Greatest Israelis.
From "Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia":
Interdisciplinary Center
The Interdisciplinary Center, Herzliya is a private Israeli college located in Herzliya, Israel.The languages of instruction in the Interdisciplinary Center are Hebrew and English.-History:...
in Herzliya
Herzliya
Herzliya is a city in the central coast of Israel, at the western part of the Tel Aviv District. It has a population of 87,000 residents. Named after Theodor Herzl, the founder of modern Zionism, Herzliya covers an area of 26 km²...
and a lecturer in law at the Hebrew University of Jerusalem
Hebrew University of Jerusalem
The Hebrew University of Jerusalem ; ; abbreviated HUJI) is Israel's second-oldest university, after the Technion – Israel Institute of Technology. The Hebrew University has three campuses in Jerusalem and one in Rehovot. The world's largest Jewish studies library is located on its Edmond J...
, the Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, and the University of Toronto Faculty of Law
University of Toronto Faculty of Law
Established in 1887, the University of Toronto Faculty of Law is one of the oldest professional faculties at the University of Toronto. The Faculty of Law is particularly renowned in the areas of corporate law, international law, law and economics, and legal theory.The law school has been...
.
Barak was President of the Supreme Court of Israel
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
from 1995 to 2006. Prior to that, he served as a Justice on the Supreme Court of Israel (1978–95), as the Attorney General of Israel
Attorney General of Israel
The Attorney General of Israel stands at the head of the legal system of the executive branch and the head of the public legal establishment, in charge of protecting the rule of law and as such entrusted with protecting the public interest from possible harm by government authorities...
(1975–78), and as the Dean of the Law Faculty of the Hebrew University of Jerusalem (1974–75).
Early life and family
Aharon Barak (Brick) was born in KaunasKaunas
Kaunas is the second-largest city in Lithuania and has historically been a leading centre of Lithuanian economic, academic, and cultural life. Kaunas was the biggest city and the center of a powiat in Trakai Voivodeship of the Grand Duchy of Lithuania since 1413. During Russian Empire occupation...
, Lithuania
Lithuania
Lithuania , officially the Republic of Lithuania is a country in Northern Europe, the biggest of the three Baltic states. It is situated along the southeastern shore of the Baltic Sea, whereby to the west lie Sweden and Denmark...
, the only son of Zvi Brick, an attorney, and his wife Leah, a teacher. After the Nazi occupation of the city in 1941, the family spent three years in the Kovno ghetto. At the end of the war, after wandering through Hungary, Austria, and Italy, Barak and his parents reached Rome, where they spent the next two years. In 1947, they received travel papers and immigrated to Palestine. After a brief period on a moshav
Moshav
Moshav is a type of Israeli town or settlement, in particular a type of cooperative agricultural community of individual farms pioneered by the Labour Zionists during the second aliyah...
, the family settled in Jerusalem.
He studied law, international relations
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...
and economics
Economics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...
at the Hebrew University of Jerusalem, and obtained his Bachelor of Laws
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
in 1958. Between 1958 and 1960, having been drafted into the Israeli Defense Forces, he served in the office of the Financial Advisor to the Chief of Staff
Financial Advisor to the Chief of Staff
The Financial Advisor to the Chief of Staff is a role assumed by the head of the Budgeting Directorate of Israel’s Ministry of Defense. The Advisor is responsible for handling the budgeting for the Israel Defense Forces arms, the financial planning for the military, and coordinating these with...
. Upon discharging his service he returned to the Hebrew University, where he completed his doctoral dissertation with distinction in 1963. Simultaneously he began work as an intern
Intern
Internship is a system of onthejob training for white-collar jobs, similar to an apprenticeship. Interns are usually college or university students, but they can also be high school students or post graduate adults seeking skills for a new career. They may also be as young as middle school or in...
at the Attorney General's office. When the Attorney General began dealing with the trial of Adolf Eichmann
Adolf Eichmann
Adolf Otto Eichmann was a German Nazi and SS-Obersturmbannführer and one of the major organizers of the Holocaust...
, Barak, being a holocaust survivor, preferred not to be involved in the work. He was transferred to the State Attorney's office to complete his internship at his request. Upon completing his internship he was recognised as a certified attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
.
Barak is married to Elisheva Ososkin, former vice president of the National Labor Court, with whom he has three daughters and a son, all trained in the law.
Academic career
Between 1966 and 1967 Barak studied at Harvard UniversityHarvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
. In 1968 he was appointed as a professor at the Hebrew University of Jerusalem, and in 1974 was named the Dean of its Law Faculty. In 1975, at 38 years of age, he was awarded the Israel Prize
Israel Prize
The Israel Prize is an award handed out by the State of Israel and is largely regarded as the state's highest honor. It is presented annually, on Israeli Independence Day, in a state ceremony in Jerusalem, in the presence of the President, the Prime Minister, the Knesset chairperson, and the...
for legal research. In the same year he became a member of the Israel Academy of Sciences and Humanities
Israel Academy of Sciences and Humanities
The Israel Academy of Sciences and Humanities, based in Jerusalem, was set up in 1961 by the State of Israel to foster contact between scholars from the sciences and humanities in Israel, to advise the government on research projects of national importance, and to promote excellence. It comprises...
. In 1978 he became a foreign member of the American Academy of Arts and Sciences
American Academy of Arts and Sciences
The American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...
.
Attorney General of Israel
Between 1975 and 1978, Barak served as the Attorney General of Israel. Among his well-known decisions in this capacity were:- The decision to launch a criminal investigation against Asher Yadlin, CEO of Clalit Health Services and a nominee for the position of director of the Bank of IsraelBank of IsraelThe Bank of Israel is the central bank of Israel. It is located in Kiryat HaMemshala in Israel's capital city of Jerusalem, with a branch office in Tel Aviv. The current governor is Stanley Fischer.-History:...
. Yadlin was convicted of accepting a bribe and sentenced to 5 years imprisonment. During this incident Barak coined the so-called Buzaglo testBuzaglo testThe Buzaglo test is a phrase coined in Israeli law which subsequently developed into an idiom in Israel.In 1976, the Attorney General of Israel at the time, Aharon Barak, decided to begin a criminal investigation against Asher Yadlin in relation to the Yadlin affair...
. - The decision to continue with the police investigation of Housing and Construction MinisterHousing and Construction Minister of IsraelThe Ministry of Housing and Construction is a portfolio in the Israeli cabinet. The ministry was created in 1961, and until 1977 it was known as the Ministry of Housing. Construction was also previously part of the Labour and Construction ministry during the provisional government between 1948 and...
Avraham OferAvraham OferAvraham Ofer was an Israeli politician, famous for committing suicide following the eruption of a corruption scandal.- Biography :Ofer was born in the Khorostkov shtetl in Poland in 1922, and immigrated to Mandate Palestine in 1933. He went to High School in Jerusalem and studied in the Hebrew...
, despite the Minister's request that the investigation be terminated. Ofer committed suicide in 1977, prior to the conclusion of the investigation. - The decision to prosecute Leah Rabin due to the Dollar Account affairDollar Account affairThe Dollar Account affair was a political scandal in Israel in 1977, following the exposure of an illegal US Dollar bank account held by Israeli Prime Minister Yitzhak Rabin and his wife Leah...
. This decision brought about the resignation of the Israeli Prime Minister Yitzhak RabinYitzhak Rabin' was an Israeli politician, statesman and general. He was the fifth Prime Minister of Israel, serving two terms in office, 1974–77 and 1992 until his assassination in 1995....
. In justifying his decision not to prosecute Yitzhak Rabin for the affair, Barak has argued that "Rabin was severely punished in that he was forced to resign from his position. There was no room to punish him further."
Barak was appointed by Israeli Prime Minister Menachem Begin
Menachem Begin
' was a politician, founder of Likud and the sixth Prime Minister of the State of Israel. Before independence, he was the leader of the Zionist militant group Irgun, the Revisionist breakaway from the larger Jewish paramilitary organization Haganah. He proclaimed a revolt, on 1 February 1944,...
in 1978 as the legal advisor to the Israeli delegation for negotiating the Camp David Accords
Camp David Accords
The Camp David Accords were signed by Egyptian President Anwar El Sadat and Israeli Prime Minister Menachem Begin on September 17, 1978, following thirteen days of secret negotiations at Camp David. The two framework agreements were signed at the White House, and were witnessed by United States...
. In his book Palestine: Peace Not Apartheid, Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
praises Barak as a negotiator despite the political disagreements between them.
Supreme Court of Israel
On September 22, 1978, Barak began his service as a Justice on the Supreme Court of IsraelSupreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
– the youngest of all of the judges.
In 1982–83 he served as a member of the Kahan Commission
Kahan Commission
The Kahan Commission , formally known as the Commission of Inquiry into the Events at the Refugee Camps in Beirut, was established by the Israeli government on 28 September 1982, to investigate the Sabra and Shatila Massacre . The Kahan Commission was chaired by the President of the Supreme Court,...
, a state investigation committee formed to investigate the circumstances surrounding the Sabra and Shatila massacre
Sabra and Shatila massacre
The Sabra and Shatila massacre took place in the Sabra and Shatila Palestinian refugee camps in Beirut, Lebanon between September 16 and September 18, 1982, during the Lebanese civil war. Palestinian and Lebanese civilians were massacred in the camps by Christian Lebanese Phalangists while the camp...
. As part of the committee's conclusions, then Minister of Defense Ariel Sharon
Ariel Sharon
Ariel Sharon is an Israeli statesman and retired general, who served as Israel’s 11th Prime Minister. He has been in a permanent vegetative state since suffering a stroke on 4 January 2006....
was removed from his position. The committee further recommended that he never be appointed to that position again in the future. In 1993, with the retirement of the Deputy President of the Supreme Court Menachem Elon
Menachem Elon
Menachem Elon , an Israeli jurist, who served as a justice on the Israeli Supreme Court and its Deputy President ....
, Barak was appointed the Deputy President. Subsequently, with the retirement of the President Meir Shamgar
Meir Shamgar
Meir Shamgar was President of the Israeli Supreme Court from 1983 until 1995.-Biography:Shamgar was born Meir Sterenberg in the Free City of Danzig to Eliezer and Dina Sterenberg.He emigrated to Palestine in 1939.He was arrested by the British in 1944 for anti-British activity and being...
on August 13, 1995, Barak was appointed the President of the Supreme Court.
In the course of his service on the Supreme Court Barak greatly expanded the range of issues with which the court dealt. He canceled the standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
test which Israel's Supreme Court had used frequently, and greatly expanded the scope of justiciability
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
by allowing petitions on a range of matters. Professor Daphna Barak-Erez commented that:
One of the most significant impacts of Judge Barak on Israeli law is found in the change which he led with regard to all matters of justiciability. Judge Barak was the instigator and leader of the outlook which regards the traditional doctrine of justiciability as inappropriately and unnecessarily limiting the matters which the court deals with. Under the leadership of Judge Barak, the Supreme Court significantly increased the [range of] fields in which it is [willing to intervene].
Simultaneously, he advanced a number of standards, both for public administration
Public administration
Public Administration houses the implementation of government policy and an academic discipline that studies this implementation and that prepares civil servants for this work. As a "field of inquiry with a diverse scope" its "fundamental goal.....
(mainly, the standard of the reasonableness of the administrative decision) and in the private sector
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
(the standard of good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
), while blurring the distinction between the two. Barak's critics have argued that, in doing so, the Supreme Court under his leadership harmed judicial consistency and stability, particularly in the private sector.
Since 1992, much of his judicial work was focused on advancing and shaping Israel's Constitutional Revolution (a phrase which he coined), which he believed was brought about by the adoption of Basic Laws
Basic Laws of Israel
The Basic Laws of Israel are a key component of Israel's constitutional law. These laws deal with the formation and role of the principal state's institutions, and the relations between the state's authorities. Some of them also protect civil rights...
in the Israeli Knesset
Knesset
The Knesset is the unicameral legislature of Israel, located in Givat Ram, Jerusalem.-Role in Israeli Government :The legislative branch of the Israeli government, the Knesset passes all laws, elects the President and Prime Minister , approves the cabinet, and supervises the work of the government...
dealing with human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. According to Barak's approach, which was adopted by the Supreme Court, the Constitutional Revolution brought values such as the Right to Equality, Freedom of Employment and Freedom of Speech to a position of normative supremacy, and thereby granted the courts (not just the Supreme Court) the ability to strike down legislation which is inconsistent with the rights embodied in the Basic Laws. Consequently, Barak held that the State of Israel has been transformed from a parliamentary democracy to a constitutional parliamentary democracy, in that its Basic Laws were to be interpreted as its constitution.
During his time as President of the Supreme Court, Barak advanced a judicial activist approach, whereby the court was not required to limit itself to judicial interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
, but rather was permitted to fill the gaps in the law through judicial legislation at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. This approach was highly controversial and was met with much opposition, including by some politicians. The Israeli legal commentator Ze'ev Segal wrote in a 2004 article, "Barak sees the Supreme Court as a [force for societal change], far beyond the primary role as a decisor in disputes. The Supreme Court under his leadership is fulfilling a central role in the shaping of Israeli law, not much less than [the role of] the Knesset. Barak is the leading power in the court, as a key judge in it for a quarter of a century, and as the number 1 judge for some 10 years now."
On September 14, 2006, upon reaching the mandatory age, Barak retired from the Supreme Court. Three months later he published his final judgments, among them a number of precedents regarding damages in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
for residents of the Palestinian territories
Palestinian territories
The Palestinian territories comprise the West Bank and the Gaza Strip. Since the Palestinian Declaration of Independence in 1988, the region is today recognized by three-quarters of the world's countries as the State of Palestine or simply Palestine, although this status is not recognized by the...
, Israel's policy of targeted killing
Targeted killing
Targeted killing is the deliberate, specific targeting and killing, by a government or its agents, of a supposed terrorist or of a supposed "unlawful combatant" who is not in that government's custody...
, and preferential treatment for IDF veterans.
Researcher Norman Finkelstein
Norman Finkelstein
Norman Gary Finkelstein is an American political scientist, activist and author. His primary fields of research are the Israeli-Palestinian conflict and the politics of the Holocaust. He is a graduate of Binghamton University and received his Ph.D in Political Science from Princeton University...
says that Aharon Barak was "a leading proponent" of guidelines allowing torture — making Israel the "only country in the world where torture was legally sanctioned," according to the Israeli human rights group B'Tselem
B'Tselem
B'Tselem is an Israeli non-governmental organization . It calls itself "The Israeli Information Center for Human Rights in the Occupied Territories"...
.
Parallel to his service in the Supreme Court, Barak also served as the head of a committee which, for some twenty years, drafted the Israeli Civil Codex, which united the 24 main civil law statutes in Israeli law under a single comprehensive law.
Resumption of academic career
After his retirement from the Supreme Court, Barak joined the staff of the Interdisciplinary CenterInterdisciplinary Center
The Interdisciplinary Center, Herzliya is a private Israeli college located in Herzliya, Israel.The languages of instruction in the Interdisciplinary Center are Hebrew and English.-History:...
in Herzliya, and he teaches in the Masters' Degree program for Commercial Law. He also lectures in the Bachelor of Laws
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
program. In addition, he continues to lecture at both the Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
and the University of Alabama
University of Alabama
The University of Alabama is a public coeducational university located in Tuscaloosa, Alabama, United States....
in the United States, as well as lecturing as a Distinguished Visitor at the University of Toronto
University of Toronto
The University of Toronto is a public research university in Toronto, Ontario, Canada, situated on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution of higher learning in Upper Canada...
Faculty of Law
University of Toronto Faculty of Law
Established in 1887, the University of Toronto Faculty of Law is one of the oldest professional faculties at the University of Toronto. The Faculty of Law is particularly renowned in the areas of corporate law, international law, law and economics, and legal theory.The law school has been...
.
Important judgments
- CA 6821/93 United Hamizrahi Bank Ltd. v. Migdal Kfar Shitufi 49(4) P.D 221: The judgment in which Barak, together with other judges, described the Constitutional Revolution as he understood it, which began following the legislation of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Employment. In this case it was held that the Supreme Court could strike down Knesset legislation which is inconsistent with these Basic Laws.
- CA 243/83 The Jerusalem Municipality v. Gordon, 39(1) P.D 113: In this judgment Barak reformed key aspects of Israeli tort law.
- HC 3269/95 Katz v. Regional Rabbinical Court, 50(4) P.D 590: In this judgment Barak held, sitting as Deputy President to Meir ShamgarMeir ShamgarMeir Shamgar was President of the Israeli Supreme Court from 1983 until 1995.-Biography:Shamgar was born Meir Sterenberg in the Free City of Danzig to Eliezer and Dina Sterenberg.He emigrated to Palestine in 1939.He was arrested by the British in 1944 for anti-British activity and being...
, that the laws pertaining to property disputes arising from divorce are not caused by the act of marriage and thus are not to be regarded as matters of marriage. Rather, they derive from an agreement between the parties and are an aspect of the freedom of association. This case established that the Israeli Rabbinical courts must apply the doctrine of joint matrimonial property, a doctrine based in Israeli common law rather than the Halacha (Jewish religious law). - CA 4628/93 State of Israel v. Guardian of Housing and Initiatives (1991) Ltd., 49(2) P.D 265: In this judgment Barak proposed a new approach to contract construction, holding that a lot of weight should be given to the circumstances which led to the formation of the contract. Some aspects of Barak's views in this regard remain controversial, but his general approach to contract construction is today accepted by the Supreme Court.
- CA 165/82 Kibbutz Hatzor v Assessing Officer, 39(2) P.D 70: This judgment was a turning point in the interpretation of tax lawTax lawTax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes.-Major issues:Primary taxation issues facing the governments world over include;* taxes on income and wealth...
in Israel, in establishing that a purposive approach was generally preferred to textualismTextualismTextualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
in determining the meaning of the law. - FH 40/80 Koenig v. Cohen, 36(3) P.D 701: In this judgment Barak, in the minority, expounded upon his approach to interpreting legislation. Today this approach has become an acceptable approach to statutory interpretation.
- CA 817/79, Kossoy v. Y.L. Feuchtwanger Bank Ltd., 38(3) P.D 253: In this judgment Barak imposed a duty of fairness upon one who controls a company, holding that one who controls a company cannot sell his shares of the company when as a consequence of doing so the company, and thus its shareholders, would be harmed.
Impact, praise and criticism
Barak's decisions as President of the Supreme Court impacted many aspects of life in Israel, and were the subject of both praise and criticism. Barak championed a proactive judiciary that has interpreted Israel's Basic LawBasic Laws of Israel
The Basic Laws of Israel are a key component of Israel's constitutional law. These laws deal with the formation and role of the principal state's institutions, and the relations between the state's authorities. Some of them also protect civil rights...
as its constitution, and challenged Israeli parliament (Knesset) laws on that basis. Two of his books on legal commentary have been translated to English.
Following his retirement from the Supreme Court, the new President of the Court, Judge Dorit Beinisch
Dorit Beinisch
Dorit Beinisch is the president of the Supreme Court of Israel. She was appointed to the position on September 14, 2006, after the retirement of Aharon Barak. She is the first woman to serve as president of the Supreme Court.-Biography:...
, said at his farewell ceremony:
At the heart of the development of the law of Israel stands Aharon Barak. He opened new horizons. The law as it stands after his [Presidency] differs in its purpose from the era which preceded him. Since his first year in the Supreme Court his rulings were groundbreaking, since '78 and until today he set the central legal norms that this court granted Israeli society.
On the issue of the substantial expansion of the right of standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
and the test of reasonableness of an administrative decision (which grants the courts the power to overrule an administrative decision if the judge is convinced that it does not "stand [within the] bounds of reasonableness"), Professor Amnon Rubinstein
Amnon Rubinstein
Amnon Rubinstein is an Israeli law scholar, politician, and columnist. A member of the Knesset between 1977 and 2002, he served in several ministerial positions. He is currently dean of the Interdisciplinary Center in Herzliya and a patron of Liberal International.-Early life:Rubinstein was born...
, a liberal Israeli politician, wrote:
Thus a situation has arisen whereby the Supreme Court may convene and decide on every conceivable issue. In addition to that the unreasonableness of an administrative decision will be grounds for judicial intervention. This was a total revolution in the judicial thinking which characterized the Supreme Court of previous generations, and this has given it the reputation of the most activist court in the world, causing both admiration and criticism. In practice, in many respects the Supreme Court under Barak has become an alternate government.
Among critics of Barak's judicial activism are former President of the Supreme Court of Israel Moshe Landau
Moshe Landau
Moshe Landau was an Israeli jurist. He was the fifth President of the Supreme Court of Israel.-Biography:Landau was born in Danzig, Germany to Dr. Isaac Landau and Betty née Eisenstädt...
, Professor Ruth Gavison
Ruth Gavison
Ruth Gavison is an Israeli Law professor at the Hebrew University in Jerusalem. She is also a Senior Fellow Emeritus at the Israel Democracy Institute...
, and Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
.
Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, a judge on the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
and authority on jurisprudence, is a fierce critic of Barak's activist judicial approach. He criticised Barak's decision to interpret the Basic Laws as Israel's constitution, stating that "only in Israel ... do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision." He also argues that Barak's idea of the courts enforcing a set of rights which they find in "substantive" democracy, rather than merely democratic political rights, actually involves a curtailing of democracy and results in a "hyperactive judiciary." Furthermore, he claims that Barak's approach to the interpretation of statutes involves, in practice, interpretation in the context of the judge's own personal ideal system, and "opens up a vast realm for discretionary judgment", rather than providing for an objective interpretation of the statute. He is also critical of Barak's view of the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, arguing that, in effect, it is that "judicial power is unlimited and the legislature cannot remove judges." He also asserts that Barak fails to apply his own judicial philosophy in practice at times. Nevertheless, Posner said that "Barak himself is by all accounts brilliant, as well as austere and high-minded – Israel's Cato", and that while he would not regard Barak's judicial approach as a desirable universal model, it may be suited to Israel's specific circumstances. He also suggested that if there were a Nobel prize
Nobel Prize
The Nobel Prizes are annual international awards bestowed by Scandinavian committees in recognition of cultural and scientific advances. The will of the Swedish chemist Alfred Nobel, the inventor of dynamite, established the prizes in 1895...
for law, Barak would likely be among its early recipients.
Beyond the legal community, on both the left and right of the political spectrum, there are those who were highly critical of Barak. His judgments on matters of security, in particular, have been subject to criticism by some on both the left and the right.
Barak is a secular Jew but believes in compromise with the religious sector, and state support for religion. His judgments on the interaction between religion and state have led to hostility towards him by some in the religious public. Religious Jews from all sectors of society (including both Haredim and Religious Zionists
Religious Zionism
Religious Zionism is an ideology that combines Zionism and Jewish religious faith...
) held a mass protest against the Supreme Court under his Presidency, after the Supreme Court ruled that in cases of divorce the Israeli Religious courts of law are required to decide property disputes according to the law of the Knesset
Knesset
The Knesset is the unicameral legislature of Israel, located in Givat Ram, Jerusalem.-Role in Israeli Government :The legislative branch of the Israeli government, the Knesset passes all laws, elects the President and Prime Minister , approves the cabinet, and supervises the work of the government...
rather than according to the Halacha.
Key legal doctrines
- JusticiabilityJusticiabilityJusticiability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
- Judicial discretionJudicial discretionJudicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
- ReasonabilityReasonabilityReasonability is a legal term. The scale of reasonability represents a quintessential element of modern judicial systems and particularly important in the context of international disputes and conflicts of laws issues...
- ProportionalityProportionality (law)Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
- Purposive interpretation
Barak's legal philosophy starts with the belief that "the world is filled with law." This idea 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.
Awards and honors
- In 1975, Barak was awarded the Israel PrizeIsrael PrizeThe Israel Prize is an award handed out by the State of Israel and is largely regarded as the state's highest honor. It is presented annually, on Israeli Independence Day, in a state ceremony in Jerusalem, in the presence of the President, the Prime Minister, the Knesset chairperson, and the...
, in jurisprudence. - In 1987, he was elected a Foreign Honorary Member of the American Academy of Arts and SciencesAmerican Academy of Arts and SciencesThe American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...
. - In 2003, he received Honorary Degrees from Brandeis UniversityBrandeis UniversityBrandeis University is an American private research university with a liberal arts focus. It is located in the southwestern corner of Waltham, Massachusetts, nine miles west of Boston. The University has an enrollment of approximately 3,200 undergraduate and 2,100 graduate students. In 2011, it...
. - In 2006, he received the Justice Prize of the Peter Gruber Foundation for "outstanding courage and principle who has devoted his life to the promotion of justice and the just rule of law."
- In 2007, he received Honorary Degrees from Columbia UniversityColumbia UniversityColumbia University in the City of New York is a private, Ivy League university in Manhattan, New York City. Columbia is the oldest institution of higher learning in the state of New York, the fifth oldest in the United States, and one of the country's nine Colonial Colleges founded before the...
.
In 2005, he was voted the 39th-greatest Israeli of all time, in a poll by the Israeli news website Ynet
Ynet
Ynet is the most popular Israeli news and general content website. It is owned by the same conglomerate that operates Yediot Ahronot, the country's secondleading daily newspaper...
to determine whom the general public considered the 200 Greatest Israelis.
Quotations
On balancing individual rights and security, from his opinion written for a September 6, 1999 decision of the Supreme Court of Israel:This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.
From "Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia":
As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and non-disabled – all are equal in my eyes. All are human beings, created in the image of the Creator. I shall protect the human dignity of each of them. I do not aspire to power. I do not seek to rule. I am aware of the chains that bind me as a judge. I have repeatedly emphasized the rule of law, and not the rule of the judge. I am aware of the importance of the other branches of government – the legislative and executive.
Published works
- Judicial Discretion (1989) ISBN 978-0300040999
- Purposive Interpretation in Law (2005) ISBN 978-0691120072 Book review.
- The Judge in a Democracy (2006) ISBN 978-0691120171
- Begin and the Rule of Law, Israel Studies, Indiana University Press, Volume 10, Number 3, Fall 2005, pp. 1–28
External links
- Aharon Barak – in the online exhibition "To Build and To Be Built" – The Contribution of Holocaust Survivors to the State of Israel – Yad Vashem
- The Judge in a Democracy (Princeton University Press, 2006)
- "The Legacy of Justice Aharon Barak: A Critical Review", by Nimer Sultany
- Review of Barak's book, Hassan Jabareen
- Personal history, Biographical highlights, Personal chronology, Influences and contributions, Exploring, Influence on the Israeli legal system
- Justice Barak Unbound, Nathan J. Diament
- Video of a lecture by Aharon Barak entitled Human Rights and their Limitations: The Role of Proportionality (Foundation for Law, Justice and Society Annual Lecture, 2009)