He Who Is Fit To Judge

The Hour

By Leonard Fein

Published September 22, 2006, issue of September 22, 2006.
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Israel’s most significant Barak is not Ehud, the former prime minister, but, by a furlong, Aharon, until last week president of Israel’s Supreme Court. Widely respected in Israel and abroad, Aharon Barak’s imprint on the Israeli court, and thereby on Israeli society, is second to no other living Israeli.

Essentially, Barak’s expansive vision of the law, hence of the role of the courts, has changed the way in which public policy in Israel is formulated and effected. His views have not prevailed without controversy and criticism. But even his harshest critics have acknowledged his integrity, his personal modesty and his brilliance.

These have, to some degree, modulated what would surely otherwise have been an onslaught of opposition. As it is, critics frequently express concern regarding what may happen when someone without Barak’s integrity and restraint becomes president of a court whose powers have been so dramatically expanded under his leadership.

People who know of Barak only from a distance are liable to know mainly his rulings regarding torture and, more recently, the location of Israel’s security fence. Both decisions reflect a fervent commitment to human rights. The one outlawed torture, in a decision that could well serve as a model for the United States and quickly settle the current debate on the CIA’s methods of interrogation; the other ruled that the location of the fence must balance security needs against minimal encroachment on Arab communities.

The court’s right to rule in both of these decisions, as also in a raft of others, hinged on Barak’s views of two key legal concepts: standing and justiciability. “Standing” determines who has the right to bring a complaint or petition before the legal system. In the United States, broadly, standing is limited to plaintiffs with a direct interest in the matter under consideration; in Israel, owing to Barak’s view, any citizen has standing on any issue of public policy. Thus the American system creates a narrow passage to the legal system, while Israel’s door is open wide.

“Justiciability” is a more complex concept. The element of immediate interest here is that in the American system political questions are inherently non-justiciable — that is, cannot be resolved by a court of law. That view specifically excludes not only the decisions of the duly empowered other branches of government, but also controversies lacking judicially discoverable and manageable standards for their resolution.

Israel, in contrast, again adopts a radically expansive view of justiciability, holding essentially that almost nothing is non-justiciable. Absent specific legislative standards, or in cases that pit one set of values against another — such as Jewish values against democratic values — Barak’s approach is to rely on “the enlightened community in Israel.” This, he has said, is “an objective test, which refers the judge to the full set of values which shape the character of the modern Israeli.”

It is immediately obvious that reference to “enlightened opinion” is an invitation to judicial mischief — specifically, to the judge’s use of his own views as a surrogate for the intangible “enlightened opinion” of the society. In Barak’s own decisions, when he has found it difficult to discern “enlightened opinion in Israel,” he has turned to the insights and standards of other country’s courts, especially Canada’s, implicitly arguing that Israel’s own “enlightened opinion” shares in universal values articulated elsewhere. It is precisely in this connection that the gravest doubts have been raised — not, heaven forbid, regarding Barak himself, but rather regarding his successors.

One other matter, perhaps most important of all, marks Barak’s tenure and legal understanding. In 1992, the Knesset passed Basic Law: Human Dignity and Liberty, which forbade infringement upon a person’s dignity, life, body or property, except for an appropriate purpose consistent with Israel’s values. What are “Israel’s values?” They are stated in the “purpose” section of the law: “The purpose of this Basic Law is to protect human dignity and liberty in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”

That sounds straightforward — until one confronts the question of just how Jewish and democratic values are to be defined, and the corollary question of what the court is to do when the two sets of values, however defined, are in conflict. Is Halacha, or formal rabbinic law, binding? Is it the exclusive source of “Jewish values?” That is by no means a settled issue in Israel, even if Barak and his colleagues have repeatedly made it clear that the whole of the Jewish experience is the soil of Jewish values, and have further implied that where there is conflict between specific Jewish values and commonly accepted democratic norms, it is the democratic norms (reflecting “enlightened opinion”) that must prevail.

In a more orderly parliamentary system, one might sharply question the Barak court’s interpretation of such matters and its consequent arrogation of power. But in Israel, where the political system operates in a state of near-chronic dysfunction, the Supreme Court has proved a rock, a sturdy and reliable center of stability. These days, in particular, the sober integrity of the court is a binding resource of immense significance.

Barak, having reached the mandatory retirement age of 70, now leaves. Born in Kovno, Lithuania, consigned by the Nazis to the Kovno ghetto when he was 5, helped, together with his mother, to flee by a Lithuanian farmer, he arrived in Palestine in 1947.

At age 38, he became dean of the Law School at the Hebrew University; a year later, he was named Israel’s Attorney General. He joined the Supreme Court in 1978 and acceded to its presidency (a function of seniority) in 1995.

Recently, he said, “As I sit at trial, I stand on trial.” At trial, controversy notwithstanding, he has been fully vindicated — with honors, with honor.

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