Aharon Barak | |
|---|---|
| אהרן ברק | |
 Image of Aharon Barak | |
| President of theSupreme Court of Israel | |
| In office 13 August 1995 – 14 September 2006 | |
| Preceded by | Meir Shamgar |
| Succeeded by | Dorit Beinisch |
| Personal details | |
| Born | Erik Brick (1936-09-16)16 September 1936 (age 89) Kaunas, Lithuania |
| Nationality | Israeli |
| Spouse | |
| Children | 4 |
| Parent(s) | Zvi Brick Leah Brick |
| Alma mater | Hebrew University of Jerusalem |
| Signature |  |
Aharon Barak (Hebrew:אהרן ברק; bornErik Brick; 16 September 1936) is an Israeli lawyer andjurist who served as President of theSupreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of Israel from 1978 to 1995, and before this asAttorney General of Israel from 1975 to 1978.
Born inLithuania in 1936 and having survivedthe Holocaust, he and his family later immigrated toMandatory Palestine in 1947. He studied law,international relations and economics at theHebrew University of Jerusalem, and obtained hisBachelor of Laws in 1958. Between 1958 and 1960, he was drafted into theIsraeli military.
From 1974 to 1975, Barak was dean of the law faculty of theHebrew University of Jerusalem.[1] Barak is currently a law professor atReichman University inHerzliya, and has taught at institutions includingYale Law School,Central European University,Georgetown University Law Center, and theUniversity of Toronto Faculty of Law.
Barak was born Erik Brick inKaunas, 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 was in theKovno ghetto. In an interview withHaOlam HaZeh, Barak told how a Lithuanian farmer saved his life by hiding him under a load of potatoes and smuggling him out of the ghetto, thereby risking his own life if caught.[2] 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 andimmigrated to Mandatory Palestine. After a brief period in amoshav, the family settled inJerusalem.[citation needed]
He studied law,international relations and economics at theHebrew University of Jerusalem, and obtained hisBachelor of Laws in 1958. Between 1958 and 1960, having been drafted into theIsraeli Defense Forces, he served in the office of theFinancial Advisor to the Chief of Staff. Upon discharging his service he returned to the Hebrew University, where he completed his doctoraldissertation with distinction in 1963. Simultaneously he began work as anintern at the Attorney General's office. When the Attorney General began dealing with the trial ofAdolf Eichmann, Barak, being aHolocaust survivor, preferred not to be involved in the work. At his request, he was transferred to theState Attorney's office to complete his internship. Upon completing his internship he was recognised as a certified attorney.
Barak is married toElisheva Barak-Ussoskin, former vice president of theNational Labor Court, with whom he has three daughters and a son, all trained in the law.[3] Barak's son-in-law Ram Landes made a one-hour documentary film about Barak in 2009 calledThe Judge (השופט), based on an in-depth interview with Barak.
Between 1966 and 1967 Barak studied atHarvard 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 age 38, he was awarded theIsrael Prize for legal research. In the same year he became a member of theIsrael Academy of Sciences and Humanities. In 1978 he became a foreign member of theAmerican Academy of Arts and Sciences.
After his retirement from the Supreme Court, Barak joined the staff of theReichman University in Herzliya, and he teaches in the master's degree program for Commercial Law. He also lectures in theBachelor of Laws program. In addition, he continues to lecture at both theYale Law School and theUniversity of Alabama in the United States, as well as lecturing as a Distinguished Visitor at theUniversity of Toronto Faculty of Law.
Between 1975 and 1978, Barak served as the Attorney General of Israel. Among his well-known decisions in this capacity were:
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Barak was appointed by Israeli Prime MinisterMenachem Begin in 1978 as the legal advisor to the Israeli delegation for negotiating theCamp David Accords. In his bookPalestine: Peace Not Apartheid,Jimmy Carter praises Barak as a negotiator despite the political disagreements between them.[4]
On 22 September 1978, Barak began his service as a Justice of theSupreme Court of Israel – the youngest of all of the judges. In 1982–83 he served as a member of theKahan Commission, a state investigation committee formed to investigate the circumstances surrounding theSabra and Shatila massacre. As part of the committee's conclusions, then Minister of DefenseAriel 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 retirement of the Deputy President of the Supreme CourtMenachem Elon, Barak was appointed the Deputy President. Subsequently, with the retirement of the PresidentMeir Shamgar on 13 August 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.[5] He canceled thestanding test which Israel's Supreme Court had used frequently, and greatly expanded the scope ofjusticiability by allowing petitions on a range of matters. Professor Daphna Barak-Erez 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]."[6]
Simultaneously, he advanced a number of standards, both forpublic administration (mainly, the standard of the reasonableness of the administrative decision) and in theprivate sector (the standard ofgood 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.[7]
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After 1992, much of his judicial work was focused on advancing and shaping Israel'sConstitutional Revolution (a phrase which he coined), which he believed was brought about by the adoption ofBasic Laws in the IsraeliKnesset 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 that the State of Israel has been transformed from aparliamentary democracy to a constitutional parliamentary democracy, in that its Basic Laws were to be interpreted as its constitution.[8]
During his time as President of the Supreme Court, Barak advanced ajudicial activist approach, whereby the court was not required to limit itself tojudicial interpretation, but rather was permitted to fill the gaps in the law through judicial legislation atcommon 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 14 September 2006, upon reaching the mandatory age, Barak retired from the Supreme Court. Three months later he published his final judgments, among them a number ofprecedents regarding damages intort for residents of thePalestinian territories, Israel's policy oftargeted killing, and preferential treatment for IDF veterans.
Parallel to his service in the Supreme Court, Barak also served as the head of a committee which, for some twenty years, drafted the IsraeliCivil Codex, which worked to unite the 24 main civil law statutes in Israeli law under a single comprehensive law.
On January 11, 2024, the Israeli government appointed Barak as an ad hoc judge to serve on theInternational Court of Justice caseSouth Africa v. Israel, brought against Israel bySouth Africa on charges ofgenocide.[9] In this role, Barak voted against several of the provisional measures the ICJ imposed on Israel, such as preventing acts of genocide, protecting evidence, and facilitating humanitarian aid, suggesting he found insufficient basis in the evidence for these specific requirements.[10]
On June 5, 2024, Barak resigned from his role as an ad hoc judge, citing personal reasons.[11]
Barak championed a proactive judiciary that has interpreted Israel'sBasic Law as its constitution, and challenged Knesset laws on that basis. 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.[12]Following his retirement from the Supreme Court, the new President of the Court, JudgeDorit 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 theright 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"),Amnon Rubinstein wrote:" 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."
Barak is a secular Jew but believes in compromise with the religious sector, and state support for religion.[citation needed] His judgments on the interaction between religion and state have led to hostility towards him by some in the religious public. Religious Jews from all sectors of society (including bothHaredim andReligious Zionists) held a mass protest against the Supreme Court under his presidency, after the Supreme Court ruled that in cases of divorce the Israelireligious courts of law are required to decide property disputes according to the law of the Knesset rather than according to theHalakha.[citation needed]
Among critics of Barak's judicial activism are former President of the Supreme Court of IsraelMoshe Landau,Ruth Gavison, andRichard Posner. Posner, a judge on theUnited States Court of Appeals for the Seventh Circuit and authority on jurisprudence, 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."[13] 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, and "opens up a vast realm for discretionary judgment", rather than providing for an objective interpretation of the statute.[13] He is also critical of Barak's view of theseparation 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.[13] Nevertheless, Posner said 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 circumstances.[13] He also suggested that if there were aNobel Prize for law, Barak would likely be among its early recipients.[13]
His judgments on matters of security have been subject to criticism by some on both the left and the right.[14][15][16][vague]
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