Barak’s Rule

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In The Judge in a Democracy, Aharon Barak, President of the Supreme Court of Israel from 1995 to 2006, advances a robust defense of what has come to be called—in American parlance—judicial activism. In Barak’s telling, judges may properly “give a statute new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself.”

In his 1999 review of Barak’s book in Azure, the late Judge Robert H. Bork attacks Justice Barak’s jurisprudence as incompatible with democracy and the rule of law, and as hopelessly subjective. As one of America’s leading advocates for an originalist jurisprudence that seeks to root law firmly in text, history, and original meaning, Bork takes a close look at what Barak’s approach looks like in practice in Israel and places these conflicts over Israeli law in the context of the trans-national debate between judicial activism and originalism.

[I]t would appear that Barak is unconcerned that the rule of law—which he praises as part of “substantive democracy”—is in fact being replaced by the rule of judges, a trend to which he himself is the major contributor. Perhaps he believes that judges are simply intellectually and morally superior to other actors in the nation’s politics, and thus judicial authoritarianism is necessary. As he explains, “a branch of government should not judge itself. It is therefore appropriate that the final decision about the legality of the activities of the legislative and executive branches should be taken by a mechanism external to those branches, that is, the judiciary.” Yet the judicial branch is properly subject to no such external mechanism, “because of their [the  judges’] education, profession, and role,” and because they are “trained and accustomed to dealing with conflicts of interest.” Judges may be trusted, moreover, since they are “not fighting for their own power.” Surely anyone familiar with Barak’s record will see the irony in that statement.

Alexander Hamilton, in Federalist 78, wrote that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it “has no influence over either the sword or the purse.” Hamilton badly underestimated the capacity of the Supreme Court to go well beyond its constitutional mandate, but the Israeli court, by its assertion of the power to control both sword and purse, may well be the branch most dangerous to the political rights of the nation.

Read the entire article in Azure.

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