Barak, Aharon (1936–)

views updated

Barak, Aharon
(1936–)

Aharon Barak is Israel's most prominent legal scholar and jurist. His precedent-setting rulings while serving on the Israeli Supreme Court established the court as a powerful and independent institution whose decisions have helped to shape public debate. Barak's innovative legal concepts have influenced judicial thought world-wide.

PERSONAL HISTORY

Born in 1936 in Kaunas, Lithuania, Barak was the only son of Leah, a teacher, and Zvi, an attorney. In 1941, after the Nazi occupation of the city, Barak and his parents were forced into the Kaunas ghetto. In 1944, with the help of a local farmer, Barak and his mother fled, living in hiding for six months. At the end of the war, after a difficult journey through Hungary, Austria, and Italy, Barak and his parents arrived in Rome, where they spent the next two years. The family received travel papers and arrived in Palestine in 1947. Following a short period in a moshav (a rural village) Barak joined his parents in Jerusalem.

In 1958 Barak completed his studies at the School of Law of the Hebrew University in Jerusalem. He received a master's degree in law, while simultaneously studying at the department of economics and the department of international relations. During the years 1958 to 1960 he served in the Israel Defense Forces (IDF) in the office of the economic adviser to the chief of staff and the Budget Office of the Defense Ministry. After completing his army service he worked as a teaching assistant at the School of Law at the Hebrew University, teaching jurisprudence, contracts and torts.

In 1963 Barak received his doctorate in law, graduating cum laude with a thesis titled "On Vicarious Liability in Torts." In the same year, he was appointed lecturer at the School of Law. In 1968 he was appointed associate professor and four years later was accorded the rank of full professor. At the age of thirty-eight, in 1974, Barak was nominated as dean of the School of Law.

From 1975 to 1978 Barak served in the prestigious, independent, nonpolitical position of attorney general. His term of office was marked by his decisions in several well-known cases to indict public officials for political corruption. In 1977 Barak's decision to indict the prime minister's wife for holding an illegal foreign bank account in Washington, D.C., led the prime minister, yitzhak rabin, to resign from office. Barak viewed his mission as attorney general to be not only an adviser to the government, but also "adviser" to the citizens of Israel in protecting their civil liberties.

In 1978 at the age of forty-two, Barak was appointed a justice of the Supreme Court. Before assuming his new position as the youngest Supreme Court justice in Israel's history, Barak consented to a special request from Prime Minister Menachem Begin and took an active part in formulating the peace treaty between Israel and Egypt at the Camp David summit. (His contribution to the understandings achieved there were singled out by former President Jimmy Carter during an event in honor of Barak's seventieth birthday in September 2006 at Yale University.) In 1995 Barak was appointed president of the Supreme Court. Throughout his years on the court he remained active in academia, through ongoing teaching relationships with the Hebrew University and Yale. Barak retired in September 2006 upon turning seventy, as required by Israeli law.

BIOGRAPHICAL HIGHLIGHTS

Name: Aharon Barak

Birth: 1936, Kaunas, Lithuania

Family: Wife, Elisheva (Elika); three daughters, Ester, Tamar, Michal; one son, Avner

Nationality: Israeli

Education: M.A. in law, 1958; Ph.D. in law, Hebrew University, Jerusalem

PERSONAL CHRONOLOGY:

1968: Appointed associate professor, School of Law, Hebrew University
1972: Appointed full professor, School of Law, Hebrew University
1974: Appointed dean, School of Law, Hebrew University
1975: Awarded Israel Prize in Legal Sciences; appointed attorney general
1978: Appointed justice, Supreme Court
1995: Appointed president, Supreme Court
2006: Retires from Supreme Court

Barak has been accorded numerous prizes and honorary degrees from universities around the world. In 1975, at the age of thirty-nine, Barak was awarded the Israel Prize (in legal sciences), the state's highest award. Barak is married to Elisheva Ososkin, former vice president of the National Labor Court. They are the parents of three daughters and one son, all trained in the law.

INFLUENCES AND CONTRIBUTIONS

Barak's life experiences have had a profound influence on his philosophy and his deep commitment to civil liberties. During World War II most of his family was murdered in the Kaunas ghetto. The majority of the children in the ghetto were either shot to death or killed in Auschwitz. On various occasions Barak analyzed the impact his early life experiences have had on his judicial perceptions and beliefs. Rather than instilling a hatred toward or hopelessness about human nature, the Holocaust contributed to his conviction of the importance of the State of Israel and its security to the survival of the Jewish people as well as an abiding love of humankind. It is his strong belief in the innate potential of the human being and in the right of a person to life and dignity that has guided Barak's view of civil liberties. Barak has defined the safeguarding of dignity and equality as the north star that guides him as a judge.

This deep respect for basic values and principles such as morality and justice led Barak to believe that the rule of law and democracy must prevail, not only in times of peace but also in times of war and terror. Barak searched for the appropriate balance between the needs of society and those of the individual. This point of view made him see the famous saying "When the cannons speak the muses are silent" as erroneous. He stressed this belief in his last decision as a justice of the Supreme Court in 2006. In that decision the court decided that "targeted killing" is sometimes allowed and sometimes forbidden, depending on the circumstances and the real necessity of using such dramatic measures. Barak forcefully expressed his longstanding view that laws and judicial review are largely called upon in times of war and that it is then that the law should speak loudest.

Barak has said that every battle a country wages against terrorists or any other enemy should be executed according to rules and laws, accepting that sometimes a democracy should fight with one hand tied behind its back. Democracy and the rule of law and the protection of minorities are a daily fight; neither should be taken for granted. Referring to the Nazi era, Barak believes that the idea that "it cannot happen to us" can no longer be tolerated. If democracy was corrupted and destroyed in the Germany that produced Immanuel Kant, Johann Wolfgang von Goethe, and Ludwig van Beethoven, it can happen anywhere. If we do not protect democracy, democracy will not protect us. "With this spirit," he said, while receiving a doctor honoris causa from Brandeis University in May 2003, "I enter my courtroom every day."

EXPLORING

Hillel Neuer on Barak and the inherent tension between Israel as a Jewish state and Israel as a democratic state:

By downplaying the significance of Jewishness as a source of the state's values, Aharon Barak is doing far more than thwarting the intention of the legislators. He is essentially redefining Israel's values, not only in theory but in practice as well. For if the court makes its decisions with little reference to particularist Jewish values, then such principles, in area after area of Israeli life, come to matter less and less. An Israeli court which rules on the basis of the same set of ideas as that of its American, Canadian or German peers cannot sustain the particularist Jewish laws and framework set up by Israel's Zionist founders. And, given the centrality of the Supreme Court in Israeli life, the idea that Israel's Jewish character ought not influence its decision makers is likely to be adopted by other branches of government, and by a growing segment of the citizenry as well.
Israel has long prided itself on having a "professional" judiciary spared from the complications wrought by politicization. But recent developments have eroded this tradition, and make its utter dissolution seem inevitable. Rejoicing over the new Basic Laws, Aharon Barak waves his "non-conventional" weapon of judicial review which, together with a hefty conventional arsenal of wide-open standing and justiciability rules, threatens the Israeli public with an unprecedented centralization of power among a handful of like-minded judges. As President Barak himself has written, there is a zone where "the decision is made according to the personal worldview of the judge …" and "his outlook on society, law, judging and life is what directs his path." Israelis may have good cause for concern in discovering that this subjective zone—and with it the politicization of the court—is likely to grow apace, an inevitable result of the Barak approach.
HILLEL NEUER, "AHARON BARAK'S REVOLUTION." SHALEM CENTER, JERUSALEM. AVAILABLE FROM HTTP://WWW.DAAT.AC.IL/DAAT/EZRACHUT/ENGLISH/HILLEL.HTM.

Influence on the Israeli Legal System

Barak's influence on the Israeli legal system is unsurpassed. He has contributed to the development of Israeli law as a leading legal scholar in a number of different fields, especially in the law of torts and in commercial and corporate law. As a justice of the Supreme Court, Barak devoted much of his work to constitutional and administrative law, which he found of basic importance in the protection of human rights. It could be said that he has contributed to every single field of Israeli law.

In his judgments and scholarship Barak developed the concept of "purposive interpretation," according to which laws are interpreted not literally but rather on the basis of principles of substance and goals appropriate to a democracy. Barak adhered to the concept of "wide standing," opening the gates of the Supreme Court, sitting as a High Court of Justice, to plaintiffs who raised ideological issues relating to the rule of law and the preservation of principles of public ethics. Plaintiffs who did not have a specific personal interest in the outcome of a controversy were accorded standing before the court, which viewed itself as the protector of the rule of law in general. Thus, matters of vital public importance could be reviewed by the court. Barak's "open-door" policy made the Supreme Court an important player in enforcing broad principles of constitutionality, legality, reasonableness, and proportionality in actions taken by the other branches of government.

This concept corresponded with the principle of the wide justiciability of sensitive matters, which included, inter alia, security considerations. Barak's rulings (2004–2006) on the Israeli separation fence in the Occupied Territories intervened in security matters in order to prevent disproportionate harm to local populations. These rulings constituted a breakthrough in the establishment of the principle of judicial review of executive branch decisions.

Barak's contribution to the Israeli law is noted in various fields. In public law, he developed the concepts of reasonableness and proportionality as bases for intervention in government decisions. A reasonable decision, in Barak's view, should not only weigh relevant considerations, but should also establish a proper balance between these considerations.

This concept led Barak to decide, for example, that the attorney general acted manifestly unreasonably when deciding not to indict high-ranking bank executives on the ground of lack of "public interest," because they were already standing before a public Commission of Inquiry (1990). The same concept was applied when Barak annulled the military censor's decision to prevent the publication of an article on grounds of danger to state security. Barak had adopted a judicial interpretative principle that freedom of expression could be limited in the interests of state security and public order only when the injury to the public order is severe and substantial. Only then could security considerations justify curbing freedom of expression. The probability of injurythat would justify limiting freedom of speech must amount to "near certainty" (1989).

Israel's "Marbury vs. Madison Period"

The concept of proportionality was central to the decisions handed down by Barak in the series of cases referred to above relating to the separation fence in the Occupied Territories (2004–2006). Proportionality, according to Barak, required that the means used by an administrative body injures individuals to the least possible extent. The test of proportionality compares the advantage of an administrative act with the damage that results from it. Barak explained that the principle also applies to the exercise of authority by a military commander in an area under hostile occupation. Thus, in several decisions Barak ordered the government to reroute the fence in order to avoid unnecessary harm to the local inhabitants.

These decisions made clear that "security" is not a magic word that bars judicial review by the Supreme Court. It was Barak's observation that "Israel is not an isolated island. It is a member of an international system…. The military operations of the IDF are not conducted in a legal vacuum." The application of judicial review over a wide range of security matters distinguishes Israel among leading democracies. Barak was the leading exponent of this principle, which has been followed by the current president of the Supreme Court, Justice Dorit Beinisch, and most of Barak's former colleagues who still serve on the court since his retirement.

In addition, it should be noted that in the area of constitutional and administrative law, Barak's rulings established, inter alia, the duty of public officials to avoid conflicts of interest; the duty of officials to permit demonstrations unless it is evidently clear that a demonstration will lead to violence; limitation of the discretion of the attorney general not to indict based on "lack of public interest"; limitation of the permissible methods of interrogation by the General Security Service (GSS) on individuals suspected of committing crimes against Israeli security; and the duty of the state not to discriminate against Israeli citizens of Arab origin in allocation of state-owned lands.

In 1995, when Barak was appointed president of the Supreme Court, he led it in deciding that Israeli courts have the power to declare statutes passed by the Knesset unconstitutional if they contradict civil liberties recognized by the Basic Laws. The court took this position in spite of the fact that the Israeli Basic Laws do not include express provision for judicial review of statutes. Referring to the similar lack in the U.S. Constitution, Barak said, "we are in our Marbury vs. Madison period."

In the area of contract law, Barak stressed especially the duty of the parties to a contract to act in good faith, and the concept that a contract should be interpreted while considering the aims, interests, and plans of the parties. In his judgment meaning should be deduced not only from the letter of a contract but also from external circumstances. He developed the concept of a wide duty of care in the law of torts. In family law Barak shaped the concept of shared property in marriages.

In criminal law Barak's interpretations gave weight to the rights of individuals to due process. This was exemplified by Barak's readiness to accord the right to a new trial on grounds of a change in the interpretation of a law after conviction under it. Barak developed the idea that a conflict of interest constitutes the actus reus (guilty act) in the offense of "breach of confidence," because such a conflict damages the confidence of the public in its officials.

THE WORLD'S PERSPECTIVE

Barak is as influential a legal scholar as he is a judge. His academic writings relate to legal theory and to the role of judges in a democratic society. Many of his decisions in the Supreme Court have been translated into English, as have some of his books. Barak has received honorary doctorates of laws from many universities around the world.

Barak was invited to contribute the foreword to the Harvard Law Review's annual U.S. Supreme Court issue in November 2002. In this essay, "A Judge on Judging: The Role of a Supreme Court in a Democracy," Barak focuses on the supreme courts in legal systems that belong to the common law tradition, such as England, the United States, Canada, and Australia, and a number of mixed jurisdictions, such as South Africa, Scotland, and Israel. He explains his understanding of the role of a supreme court as going beyond deciding the particular disputes put before it. He stresses the central role of such a court in bridging the gap between law and society. Barak regards the judge as a partner in creating the law. As a partner, Barak explains, the judge must maintain the coherence of the legal system as a whole. Additionally, Barak finds that a major task of a judge, and his duty, is to protect the constitution and democracy. The judiciary and each of its judges and justices must safeguard both formal democracy, as expressed in legislative supremacy, and substantive democracy, as expressed in basic values and human rights.

Barak has published numerous books and articles in Hebrew as well as contributed academic articles in English to legal journals in the United States and Britain. His most recent books in English translation are Purposive Interpretation in Law (2005) and The Judge in a Democracy (2006). In this latest book Barak has articulated his credo as a judge. He writes, inter alia:

I regard myself as a judge who is sensitive to his role in a democracy…. 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, disable and non-disabled—all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the Human Dignity of each.
He ends his declaration by saying:
"I do not aspire to power. I do not seek to rule. I am aware of the chains that bind me as a judge and as the President of the Supreme Court…. I am aware of the importance of the other branches of government—the legislative and the executive—which give expression to Democracy. Between those branches are connecting bridges and checks and balances." (The Judge in a Democracy, pp. 314-315)

THE PRINCIPLE OF PROPORTIONALITY

The problem of balancing between security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation. It is a general problem in the law, both domestic and international. Its solution is universal. It is found deep in the general principles of law, including reasonableness and good faith…. One of those foundational principles which balance between the legitimate objective and the means of achieving it is the principle of proportionality. According to it, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate. This approach crosses through all branches of law. In the framework of the petition before us, its importance is twofold: first, it is a basic principle in international law in general and specifically in the law of belligerent occupation; second, it is a central standard in Israeli administrative law which applies to the area under belligerent occupation.

THE SUPREME COURT SITTING AS THE HIGH COURT OF JUSTICE, BEIT SOURIK VILLAGE COUNCIL V. THE GOVERNMENT OF ISRAEL, 2004.

LEGACY

While Barak's contribution to public and civil law is unparalleled, his leadership of the Israeli Supreme Court was not always welcomed by the public at large. He found himself sometimes in the minority, especially in cases where he gave special preference to freedom of speech over other interests, but all his opinions cited above are majority decisions. Barak emerged as a consensus builder among the justices in expanded panels that dealt with cases of high constitutional importance, such as the constitutionality of laws. His opinions, often characterized as "activist" due to their intervention in executive branch actions, were nearly always majority decisions.

Barak led the Israeli Supreme Court on a path of defending the civil liberties of Israeli citizens, upholding the rights of individuals against the interests of the state. Barak has portrayed the judicial system as an orchestra of individual musicians who create different legal norms. The Supreme Court, in his view, is the conductor who assures coordination and harmony. He established the Supreme Court's unprecedented power as an independent institution, shaping, to a large extent, various volatile ideological debates in Israeli society over such issues as security and freedom of expression, equality, and state and religion.

BIBLIOGRAPHY

WORKS BY BARAK

Judicial Discretion. Translated by Yadin Kaufmann. New Haven, CT: Yale University Press, 1989.

"Freedom of Expression and Its Limitations." In Challenges to Democracy: Essays in Honor and Memory of Isaiah Berlin. Edited by Raphael Cohen-Almagor. Aldershot, U.K., and Brookfield, VT: Ashgate Publications, 2000.

"The Role of Supreme Court in a Democracy." Hastings Law Journal 53, no. 5 (July 2002).

"A Judge on Judging: The Role of a Supreme Court in a Democracy." Harvard Law Review 116, no. 1 (November 2002): 16-162.

Purposive Interpretation in Law. Translated by Sari Bashi. Princeton, NJ: Princeton University Press, 2005.

The Judge in a Democracy. Princeton, NJ: Princeton University Press, 2006.