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The Judge in a Democracy

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Aharon Barak recently retired from the position of Chief Justice of the Israeli Supreme Court. In this position he moved the Court to a more activist role than it had played in the past. And his critics charge him with having impinged upon the powers of both Executive and Legislative branches. Barak of course rejects these charges and maintains that one of the most important functions of the Judiciary in a Democracy is to preserve a separation of Powers.
Barak in this book speaks over and over again about the importance of 'objectivity' and 'neutrality' in judicial decision- making. But his major thrust is in explaining how he believes the Judicial branch must work both to preserve a Democracy's fundamental Constitutional values, and at the same time respond to social change in an appropriate way. The Law as he understands it is an ongoing developing system which must be in tune with the fundamental transformations a Society is undergoing.
Again Barak has been fiercely attacked by both sides of the poltiical spectrum in Israel. At the same time he has been applauded internationally as one of the finest judicial minds working today.
My own personal bias is with those who feel the Israeli Supreme Court has in the past few years gone beyond its own constitutional authority. I would fault it for not upholding certain fundamental rights , for instance freedom of worship in regard to Jewish Prayer on the Temple Mount.
But I also realize what Barak here writes frequently about the Judge's dilemna of being under conflicting imperatives, of needing to weighh for instance the right of a group for freedom of worship, against considerations of State Security. Again I have been time and again disappointed by Barak's rulings on many cases but do understand that his judgments are never taken out of narrow prejudice(Something he writes about as clearly forbidden to judges) but rather out of his own complex judgment clearly rooted in fundamental values.
Barak talks about human rights and civil rights as important elements in judicial consideration.
The question of the true value of his legacy to the future of Israeli democracy is one which will continue to be debated in the years ahead. But the value of this present work as clear expression of his own judicial philosophy and faith is undeniable.

The role of a judge in a democracy is one of Barak's favourite topics. He wrote and lectured on this subject many times, and in this book he compiled the main arguments, the result of years of careful thinking and of practicing law at the Israel Supreme Court.

Israel does not have a constitution or a Bill of Rights to defend basic rights and freedoms. Israel is a young democracy, poorly governed; it is riddled with corruption, and its existence has been under constant threat. You cannot really expect a country to be "normal" when once in a while it fights a war, and since 1987, with small intervals, it is subjected to constant terror attacks. The Supreme Court, under the leadership of Aharon Barak, was asked many times to interfere and to mete out justice to defend basic human rights. All the hot potatoes that no one else could not or did not wish to resolve came before the Court to decide. I often spoke with Justices of the Court who told me that they would rather not deal with those problematic, heated issues, but they had no other choice. Someone had to do the job, and in Israel, this "someone" is the High Court of Justice. The situation may change once Israel will be able to agree on a written constitution. Presently, Israel and the Palestinians living under Israeli occupation need to rely on the Court to find counsel and help in sorting grievances vis-à-vis the government, the army, and administration. Professor Barak, Israel's leading legal scholar, explains this delicate role, its challenges and rational, in this thoughtful book.

I am appalled at the egregious mis-use above of a complimentary sentence from Judge Richard Posner's blistering review of both Aharon Barak's book and his ideology and behavior on the Court in The New Republic [...].

No one, not Judge Posner and certainly not I, disagrees that Aharon Barak is a very bright man; furthermore, his effective imposition of his own left-wing "politically correct" Weltanschauung on the Israeli public and its democratically elected representatives would undoubtedly earn him the undying admiration of the left-wing Norwegians who choose the recipients of the Nobel prize. Thus, as Posner wrote, were there a Nobel prize in law, Barak would likely be an early recipient.

And yet Posner entitles his review of this book "Enlightened Despot" for a very good reason, as is evident by reading the entire review. I cannot describe Barak's usurpation of power from the elected legislative branch nearly as well as Posner, and refer all to his article. But as a US-trained attorney admitted to both the New York and Israeli bar associations, I can't agree strongly enough with Judge Posner's conclusions that -- absent any justification under law or precedent in Israel or, to my knowledge, elsewhere, and absent a formal constitution, Judge Barak decided that we less enlightened citizens of Israel would henceforth be subject to HIS "rule of law" -- i.e., the vicissitudes of what he and the colleagues he picked and formed in his image deem to be "reasonable" in a particular case at a particular time. I.e., Barak subjected duly passed laws and administrative decisions not merely to the "reasonable man" test, but the "reasonable enlightened man" test as determined in the sole discretion of Aharon Barak and his fellow Ivory Tower dwelling, self-perpetuating Supreme Court Justices.

And democracy be damned.