Aharon Barak

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Aharon Barak : biography

16 September 1936 –

Aharon Barak ( born 16 September 1936) 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, Georgetown University Law Center, 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).

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 [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 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"), 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.