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Aharon Barak

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Aharon Barak
President of the Supreme Court of Israel
In office
13 August 1995 – 14 September 2006
Preceded byMeir Shamgar
Succeeded byDorit Beinisch
Personal details
Born(1936-09-16)16 September 1936
Kaunas, Lithuania
NationalityIsrael
Alma materHebrew University of Jerusalem

Aharon Barak (Hebrew: אהרן ברק, born September 16, 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 and the University of Toronto Faculty of Law. Aharon Barak was President of the Supreme Court of Israel from 1995 to 2006.[1] Prior to that he served as a judge on the Supreme Court (1978–1995), as the Attorney General of Israel (1975–1978) and as the Dean of the Law Faculty of the Hebrew University of Jerusalem. Legal scholars have called him the "John Marshall" of Israel, the "world's greatest living jurist."[2]

Biography

Early life and family

Aharon Barak (Brick) was born in Kaunas, 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.[3] He was smuggled out in a sack at the age of five.[4] 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.[3] After a brief period on a moshav, the family settled in Jerusalem's Rehavia neighborhood.

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.[3]

Academic career

Between 1966 and 1967 Barak studied at Harvard University. 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.

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 Israel. Yadlin was convicted of accepting a bribe and sentenced to 5 years imprisonment. During this incident Barak coined the so-called Buzaglo test.
  • The decision to continue with the police investigation of Housing and Construction Minister Avraham Ofer, 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 affair. This decision brought about the resignation of the Israeli Prime Minister Yitzhak Rabin. 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."

In 1978 Barak was appointed by Israeli Prime Minister Menachem Begin 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.[5]

Judge of the Supreme Court

On September 22, 1978 he began his service as a Judge on the Supreme Court of Israel – the youngest of all of the judges.

In 1982–1983 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 resignation of the Deputy President of the Supreme Court Menachem Elon, Barak was appointed the Deputy President of the court. Subsequently, with the retirement of the President of the court 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.[6] 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 has 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]."[7]

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.[8]

From 1992 on 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, 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.[9]

During his time as President of the 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 retirement age, Barak resigned from the Supreme Court. Three months later he published his final judgements, 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. He also gave a green light to administrative detentions, even as the judge conceded, “there is probably no State in the Western world that permits an administrative detention of someone who does not himself pose any danger to State security.”[10]

He also approved the barrier wall that crosses through occupied territory.[10]

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 resignation from the Supreme Court, Barak joined the staff of the Interdisciplinary Center in Herzliya, and he teaches in the Masters' Degree program for Commercial Law. He also lectures in the LL.B. program. In addition, he continues to lecture at both Yale Law School and the University of Alabama in the United States.

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 Shamgar, 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 law in Israel, in establishing that a purposive approach was generally preferred to textualism 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 had a profound and widespread impact on many aspects of life in Israel, and were the subject of both much praise and substantial criticism. There is a widespread consensus that Barak has had an immense impact on Israeli law and the Supreme Court, but the question of whether or not this impact was desirable remains controversial. Barak championed a proactive judiciary that has interpreted Israel's Basic Law as its constitution and challenged Israeli parliament (Knesset) laws on that basis; his actions have been controversial because of this. Two of his books on legal commentary have been translated to English. Professor Ruth Ben Yisrael has called him "the [best] attorney in the country".[11]

Barak championed a proactive judiciary that has interpreted Israel's Basic Law as its constitution and challenged Knesset laws on that basis; his actions have been controversial because of this.

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"), Professor Amnon Rubinstein, a liberal Israeli politician, has written:

"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 the most prominent 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 a highly respected authority on jurisprudence, is a fierce critic of Barak's activist judicial approach. He has 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."[12] 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."[13] 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,[13] and "opens up a vast realm for discretionary judgment", rather than providing for an objective interpretation of the statute.[14] 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."[13] He also asserts that Barak fails to apply his own judicial philosophy in practice at times.[15] Nevertheless, Posner says 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 circumtances.[16] He also suggests that if there were a Nobel prize for law, Barak would likely be among its early recipients.[17]

Beyond the legal community, on both the left and right of the political spectrum, there are those who are highly critical of Barak. His judgements on matters of security, in particular, have been subject to criticism by some on both the left and the right.[18][19][20]

Barak is a secular Jew but believes in compromise with the religious sector and state support for religion. Barak has been called a post-Zionist, an assertion he has denied.[21]

His judgments on the interaction between religion and state have led to hostility towards him among 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.[23]

Awards and honours

  • In 1975, Barak was awarded the Israel Prize, in jurisprudence.[24]
  • In 2003, he received Honorary Degrees from Brandeis University.
  • In 2006, he received the Gruber 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." The Prize carries a gold medal and a US$250,000 cash prize.[25]
  • In 2007, he received Honorary Degrees from Columbia University.

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 allow it to overcome its difficulties."[26]
  • "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."[27]

Published works

See also

References

  1. ^ Israel Ministry of Foreign Affairs biography
  2. ^ Kagan Explains Barak Remarks
  3. ^ a b c "Barak, Aharon (1936–) – PERSONAL HISTORY, BIOGRAPHICAL HIGHLIGHTS, PERSONAL CHRONOLOGY:, INFLUENCES AND CONTRIBUTIONS, EXPLORING, Influence on the Israeli Legal System". Encyclopedia.jrank.org. Retrieved 2010-09-22.
  4. ^ And justice for all, [[Jerusalem Post[dead link]]]
  5. ^ Carter, James Earl, Jr. Palestine: Peace Not Apartheid. New York: Simon and Schuster, 2006; p. 46
  6. ^ Aharon Barak's Revolution
  7. ^ http://www.hapraklit.co.il/_Uploads/dbsAttachedFiles/nun1_2.pdf
  8. ^ "מקור ראשון העיתון הכי יהודי בעולם". Makorrishon.co.il. Archived from the original on 2007-12-17. Retrieved 2010-09-22.
  9. ^ "פרוטוקול:208 – חוקה בהסכמה רחבה" (in Template:He icon). Huka.gov.il. Retrieved 2010-09-22.{{cite web}}: CS1 maint: unrecognized language (link)
  10. ^ a b "Ambition and orthodoxy (Kagan's hero is also Dershowitz's)". Mondoweiss.net. 2010-06-29. Retrieved 2010-09-22.
  11. ^ [1][dead link]
  12. ^ "Enlightened Despot | The New Republic". Tnr.com. Retrieved 2010-09-22.
  13. ^ a b c Ibid.
  14. ^ "Enlightened Despot". The New Republic. Retrieved 2010-09-22.
  15. ^ "Enlightened Despot | The New Republic". Tnr.com. Retrieved 2010-09-22.
  16. ^ "Enlightened Despot". The New Republic. Retrieved 2010-09-22.
  17. ^ "Enlightened Despot". The New Republic. Retrieved 2010-09-22.
  18. ^ http://www.inn.co.il/SendMail.aspx?print=print&type=0&item=157246
  19. ^ "אצלי זה פוליטי, נקודה – מוסף הארץ – הארץ". Haaretz. Retrieved 2010-09-22.
  20. ^ http://www.yeshgvul.org/shame_0107_e.asp
  21. ^ Secular and Zionist[dead link]
  22. ^ Aharon Barak on the Role of Proportionality (Foundation for Law, Justice and Society Annual Lecture 2009)
  23. ^ Aharon Barak's revolution
  24. ^ "Israel Prize Official Site – Recipients in 1975 (in Hebrew)".
  25. ^ The Peter and Patricia Gruber Foundation. JUSTICE NEWS- PRESS RELEASES.[dead link] Retrieved: 23 August 2009.
  26. ^ "??"? 96 / 6972". Elyon1.court.gov.il. Retrieved 2010-09-22.
  27. ^ Symposium reply
  28. ^ Book review

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