Aharon Barak - Impact, Praise and Criticism

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 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:

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 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 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 bounds of reasonableness"), Amnon Rubinstein 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, Ruth Gavison, and Richard Posner. Posner, a judge on the United States Court of Appeals for the Seventh Circuit and authority on jurisprudence, 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.