Hebrew University of Jerusalem
Much has been written in Israel about the constitutional or, more broadly, the legal revolution instigated to a large extent by the retired, highly influential, Chief Justice Aharon Barak whose name has become identified with the new Israeli jurisprudence. In recent years however, some theorists have been talking about the counter-revolution. Under the conventional story, the Barak-instigated legal revolution has been eroded and, most likely, is being overturned by a new generation of politicians and newly-appointed judges.
In this post I raise doubts about this claim. More specifically, I argue that there were two legal revolutions in Israel: the judiciary-empowerment revolution (or the institutional revolution) and the liberal (or substantive revolution). I shall also argue that while much of the criticisms against the Israeli legal revolution is directed against the former (judiciary-empowerment) revolution, the conservative forces in Israel have no urgent interest in overturning the judiciary-empowerment revolution. As a matter of fact, the judiciary-empowerment revolution is currently being used by illiberal groups in Israel to undo the liberal revolution and transform Israel into an illiberal or an authoritarian democracy.
There are 3 sections in this post: The first provides a brief introduction for the foreign reader to the two Barak-instigated revolutions. The second describes the views of the critics of the two revolutions. The third maintains that contemporary political elites have been using the judiciary-empowerment revolution to revoke the successes of the liberal revolution. The main interest of the current political elites is not to limit the power of the Court and return its powers ‘to the people’ (as their rhetoric indicates) but to turn the Court into a faithful (activist) ally of the government in eroding liberal rights.
The two Israeli legal revolutions
This section presents the two Israeli legal revolutions, focusing particularly on the contributions of Chief Justice Barak.
a. The Judiciary-Empowerment (or institutional) Revolution
The judiciary-empowerment revolution has been designed to give greater powers to the courts in interpreting legislation, in monitoring the executive’s decisions, in providing remedies for violation of rights, in the recognition and enforcement of contracts, in freeing judges from some doctrinal constraints in private and in procedural law and, ultimately after 1992, in reviewing Knesset (parliament) legislation.
One manifestation of the judiciary-empowerment revolution has been to free courts from semantic chains, by allowing courts greater freedom to interpret the law in light of its purposes. Another major change is the greater willingness of courts to review administrative and executive decisions. Most significantly, Barak developed the view that unreasonableness on the part of the executive is a sufficient ground for judicial intervention.
The most important and dramatic decision made by Chief Justice Barak was the decision in CA 6821/93 United Mizrahi Bank v. Migdal where Barak declared the power of the Court to invalidate statutes that conflict with the basic laws. In a decision that can only be compared (in all respects other than its excessive length) to the famous United States case of Marbury v. Madison, the Court declared that it has such a power.
The greater interventionism on the part of the Court rests not only on the doctrinal tools described above. It rests primarily on the greater willingness of the Court to use existing legal doctrines. Both the doctrinal changes described above and the greater interventionism on the part of the Court led many to describe the Israeli court as an activist court and even to describe Chief Justice Barak as ‘an enlightened despot’.
b. The Liberal Revolution
The judiciary-empowerment revolution was, according to Chief Justice Barak, merely a means to realize substantive values. After all, Justice Barak, like most contemporary jurists influenced by legal realism, is an instrumentalist; he regards the law as a means to realize social goals. Among the prominent values regarded by him as embedded in the legal system are the values associated with liberal rights: respecting dignity, promoting autonomy, enhancing equality and overall cherishing of what can be labelled traditional Millian 'liberal values.'
The critiques of the judiciary-empowerment revolution
The standard objection of conservative legal theorists and politicians targets the judiciary-empowerment revolution on the grounds that empowerment of the judiciary is undemocratic and that it undermines the status of the Knesset and the government.
Prominent ministers in the government have expressed such sentiments. Among the more vocal ones is Minister of Justice Ayelet Shaked. Minister Shaked believes that “decision-making and governance are not in the hands of the people but in the hands of the justice system”; due to judicial “supremacy”, the elected branches “fail to achieve their goals and fulfil the will of the people.” A conservative professor of constitutional law, Gideon Sapir, maintained similarly that the decision in Bank Hamizrahi is ultimately a judicial putsch as the Knesset had no intention of establishing such a review power. The most powerful and passionate critic of the Court is Professor Daniel Friedman who has argued that: "what is hidden here is not a struggle for the rule of law, but a struggle for governance itself." Many other voices joined the mantra that the Court is too activist and that its activism undermines democracy.
On democratic hypocrisy
The primary claim in this section is that the opposition to the judiciary-empowerment revolution is ultimately a tactical and even hypocritical opposition. The primary interest of the critics of the Court is not to erode the judiciary-empowerment revolution but to undo the liberal revolution.
Let me illustrate it by describing a fresh and sensational drama which took place in Israel a few months ago. Just a few months before this post was written, the Knesset enacted a new basic law which was initiated and supported precisely by those who complained bitterly about the non-democratic foundations of the earlier two human rights basic laws. Basic Law: Israel as the Nation-State of the Jewish People (2018) was enacted on 19 July 2018 and it was supported exclusively by members of the governing rightwing coalition.
The law, which is supposed to entrench Israel as a Jewish state, was passed by a very small margin (62 in favor, 55 against). So, while most of the supporters of this basic law complain bitterly about the small margin with which the previous basic laws (human rights basic laws) have been passed (and draw the conclusion that they are not sufficiently representational and therefore illegitimate), they have not followed their own judicial philosophy in this instance. Short-term interests, hypocrisy and most likely intellectual dishonesty of monstrous magnitude led the supporters of this basic law to act against their own philosophical inclinations. After coming to power and having the opportunity to promote a nationalist agenda, the conservatives have forgotten their opposition to sectarian basic laws.
Another indication of willingness to tolerate activism is the unwillingness to criticize activist judges when they promote the rightwing agenda. An earlier activist decision promoting rightwing causes was the minority decision by Judge Edmond Levy This case was a petition of the Israeli settlers in Gaza who faced forced evacuation after a plan to withdraw from the Gaza Strip. The majority in this case refused to interfere in the evacuation decision on the grounds that: "The law governing the withdrawal is designed to realize the plan of withdrawal dictated by the government. To the extent that this plan means ending the Israeli control on the territory… it depends on the broad discretion of the government." In contrast, the minority Judge Edmond Levy expressed a highly interventionist approach and was willing to interfere and frustrate the plan of the government. To the extent that the judiciary-empowerment revolution had been a genuine concern on the part of illiberal political elites, this decision on the part of Edmond Levy should have been condemned as an outrageous form of judicial intervention. Yet, instead, Justice Levy was appointed by Prime Minister Netanyahu to head an important committee which was to examine the legal aspects of land ownership in the West Bank. No concerns about his activism were raised by the proclaimed opponents of the interventionist Court.
Perhaps the greater tolerance of interventionist courts can be explained in purely political terms. In recent years, the new Minister of Justice Ayelet Shaked has succeeded in influencing the composition of the judiciary. She often expressed the view that judges should be less activist and more deferential. Yet, a closer look at the appointments promoted by Minister Shaked indicates that her interest was not to promote more deferential judges but more conservative and anti-liberal judges.
I believe that anti-interventionist sentiments are being used in a selective way: interventionism is largely ignored or perhaps even encouraged when it is designed to promote illiberal or authoritarian causes. Whereas it is condemned and repressed when it is used to promote liberal causes.
Conservative forces in Israel have been targeting, for a long time, the alleged activism or over-interventionism of the Court. This post gives rise to the suspicion that these allegations were actually being used tactically to undermine the liberal revolution. The primary concern of the authoritarian political elites in Israel is not the excessively great powers of the Court or its interventionist inclinations but its liberal values. As a matter of fact, the judiciary-empowerment revolution instigated by Barak has become a tool to undermine the liberal revolution which he also promoted. Consequently, although Chief Justice Barak may not favor this result, his judiciary-empowerment revolution is here to stay while his liberal revolution is more likely to be eroded.
Alon Harel is a law professor at the Hebrew University of Jerusalem, where he holds the Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law.
Suggested Citation: Alon Harel, ‘Chief Justice Barak’s Legal Revolutions and What Remains of Them: The Authoritarian Abuse of the Judicial-Empowerment Revolution’ IACL-AIDC Blog (20 March 2019) https://blog-iacl-aidc.org/towering-judges/2019/3/20/chief-justice-baraks-legal-revolutions-and-what-remains-of-them-the-authoritarian-abuse-of-the-judicial-empowerment-revolution