Jewish Law - Commentary ("Justice Barak Unbound")

Justice Barak Unbound
Nathan J. Diament

Justice Barak Unbound
Nathan J. Diament
Director, Institute for Public Affairs
Union of Orthodox Jewish Congregations of America

As published in The Forward, March 5, 1999

In 1978, during the Camp David Mid-East peace negotiations, President Jimmy Carter was so impressed with one Israeli negotiator, that he jokingly offered him a seat on the U.S. Supreme Court. 250,000 protesters may not have assembled in Jerusalem last week had Aharon Barak accepted. The impression from afar of Israel’s latest high-volume debate is of a battle over the rule of law as embodied by an independent judiciary. That is a misimpression. Whether or not one agrees with the substantive rulings issued in recent years by Israel’s Supreme Court, it is clear that it is the aggressive judicial activism on the part of the court’s President Barak, a campaign to impose his ideological vision on the character of Israel, that has brought to the Jewish state the debate over the role of its judiciary.

President Barak has written that "there are no areas of life which are outside of law." But that belief alone cannot empower the chief justice to impress his ideology on Israeli society. Traditional legal doctrines developed in Anglo-American jurisprudence restrict the nature of cases that courts can hear. Thus, Barak first trained his talents upon "reforming" these doctrines to allow Israel’s courts to hear and decide the widest array of cases. Two prime examples of this effort, highlighted in Israeli law journals, are his transformation of the legal concepts of "standing" and "justiciability." To appreciate what Barak has done to these seemingly technical doctrines is to appreciate the aggressive nature of his efforts.

In the United States, a person must have standing " that is, suffered an actual injury to a right or personal interest " to bring a case to court. This principle protects the courts from frivolous litigation, but also restricts their activity. Justice Barak has successfully attacked and diluted the principle of standing in Israeli jurisprudence so that it is virtually non-existent. In a 1980 decision, Barak first attacked the doctrine, asserting it undermines the rule of law itself by allowing illegal government action to evade judicial review. Now, almost twenty years later, any Israeli citizen can seek a judicial decision in a matter the court deems to be in the "public interest."

Justice Barak has also diluted the doctrine of justiciability. U.S. and British courts use justiciability concerns are used by courts to remove themselves from cases best left to the "political branches," such as the conduct of foreign policy. Barak’s effort in this area can be seen in a set of cases uniquely Israeli -- exemptions for yeshiva students from military service.

In 1970, an Israeli brought a suit to the high court challenging the defense minister’s grant of such exemptions. The court held that this issue was a "political question" and thus non-justiciable. In 1981, the same question was brought before the court, but the court again dismissed the case. When the same petitioner brought the case yet again in 1986, Barak, not yet the court’s president, succeeded in convincing his colleagues that the matter was justiciable. (The court, however, upheld the exemptions.) In his opinion in that case, Barak extensively discussed justiciability principles and posited two types of justiciability issues, normative and institutional. Normative justiciability asks whether there are established legal criteria a court can employ regarding a particular issue. If there are no useful criteria, the court cannot adjudicate the case. Institutional justiciability asks whether the judiciary should decide the question, as opposed to another branch of government. With this analytical framework, Barak successfully undermined the traditional limits imposed by justiciability concerns upon courts.

Since, according to Barak, there "there are no areas of life which are outside of law," a normative non-justiciability limit is a non-starter for there are always relevant legal criteria to be deployed in determining a particular case. As for institutional non-justiciability, Barak asserts that a court’s decision not to hear a case and leave an issue to the political branches of government is the ultimate political decision on the part of the judiciary.

Aharon Barak’s effective elimination of two traditional procedural limitations upon an activist judiciary constitutes a sufficient platform for inserting the court into Israel’s most contentious issues. But this platform was fortified with the passage of Israel’s Basic Laws in 1992.

Israel has no written constitution. Thus, until seven years ago, judicial review of duly enacted laws was limited. The 1992 passage of Israel’s "Basic Law: Human Dignity and Liberty" and "Basic Law: Freedom of Occupation," expanded exponentially the power of the Israeli judiciary to include the ability to strike down legislation that, in the court’s opinion, conflicts with the principles articulated in the two Basic Laws. In their own words, the "purpose" of the Basic Laws are "to establish the values of the State of Israel as a Jewish and democratic state." Each of the most contentious in Israel -- from draft exemptions for yeshiva students to legal recognition of Judaism’s multiple denominations -- are those in which Jewish values and democratic values conflict.

One approach to dealing with, if not resolving, this conflict is to leave it to the democratic political process wherein differing factions must compete or compromise and societal consensus is painstakingly built. Barak’s approach, however, is to seize these issues for the judiciary and to impose his resolution of the Jewish vs. democratic values debate. Barak has resolved that debate in favor of democratic values (as he defines them) by asserting that one should interpret the phrase "Jewish" at a "high level of abstraction" such that "it becomes identical" to " democratic." This interpretation renders the key sentence of the Basic Law unusually repetitive, but it permits Barak to ensure that democratic values prevail in any conflict.

But Israel was created to be the world’s Jewish state and that must mean something more than a democratic country whose official language is Hebrew. Whether one agrees with the character of a Jewish state espoused by Sunday’s quarter-million marchers, or has a very different vision, Israel will be harmed in the long run if this fundamental debate is resolved by judicial fiat rather than by debate in political, social and cultural arenas. Such a resolution will disenfranchise a significant portion of the population and sow the seeds for more intense social conflict. With experience as their tutor, American courts have been recognized that they are but one piece of a democratic system of government and that their power is derived by respecting their limited, but powerful role within that system. It is a lesson that Aharon Barak must be mindful of for the good of Israel’s democracy and the rule of law therein.