Vol. 16 No. 10 (October, 2006) pp.824-829
THE JUDGE IN A DEMOCRACY, by Aharon Barak. Princeton: Princeton University Press, 2006. 360pp. Cloth. $29.95/£18.95. ISBN: 069112017X.
THE JUDGE IN A DEMOCRACY, by Aharon Barak. Haifa: Nevo, Keter, Haifa University Press, 2004 (Hebrew). 547pp. Cloth. $28.50/NIS127.99.
Reviewed by Menachem Hofnung, Department of Political Science, the Hebrew University of Jerusalem. Email: msmh [at] mscc.huji.ac.il.
Aharon Barak, a renowned legal scholar and former judge, retired in September 2006, as Chief Justice of the Israeli Supreme Court. Barak served as Attorney General, a Law Professor at the Hebrew University and is widely regarded as the most influential jurist in the history of the State of Israel. His two books with the same title, THE JUDGE IN A DEMOCRACY, published in Hebrew and in English are both scholarly works, offering a unique opportunity to look at the way a scholar-judge addresses different audiences. The title, THE JUDGE IN A DEMOCRACY, appears in both versions. While the Hebrew title should be literally translated as: “Judge in a Democratic Society,” Barak adopted the title that appears on the later English version to show on the internal page of his book in Hebrew (Books in Hebrew have an English page for international codification).
Although the two books carry the same title and trace their origin to an article published in 2002 in the HARVARD LAW REVIEW, the English version is not a translation from the Hebrew text. The two books have much in common but are different. The main difference appears to stem from targeting different audiences. The Hebrew version written for an Israeli audience, addresses the Jewish nature and the foundations of Israeli democracy. The English version places greater emphasis on universal values, and explains Barak’s judicial reasoning to an audience highly critical of Israel’s legal practices in the occupied territories.
The difference between the two books is evident immediately. The Hebrew volume is a thick 550 pages book, while the English version is a much slimmer 332 pages. Hebrew is a more economical language than English; a translation would require 750-800 pages. It should be noted that Barak could have chosen an alternative. His book, PURPOSIVE INTERPRETATION IN LAW, was translated and published by Princeton University Press in 2005. Choosing to rewrite rather than translate, reflects a conscious choice on the part of the author. Why should a scholar consider writing two versions of a book? A short glimpse at Barak’s biography may provide some clues.
Barak was born in 1936 in Kaunas, Lithuania, and survived the horrors of World War II. In 1947 the family came to Israel and settled in Jerusalem, where Barak completed his elementary and high school education. After high school, Barak served with the Academic Reserve (a military unit combining [*825] university studies with active military duty). During his military service, Barak completed a combat officer’s course, and was awarded the rank of Lieutenant. Between the years 1958 and 1963, he completed his LlB, LlM, and Ph.D at the Hebrew University. In 1968 Barak was appointed Associate Professor of Law at Hebrew University and became a full Professor in 1974. In 1975 Barak was appointed Attorney General and Legal Advisor to the Israeli government. During Yitzhak Rabin’s first term as Prime Minister of Israel (1974-1977), rulings by Attorney General Barak proved instrumental in bringing down Rabin’s coalition. Barak backed a series of investigations of corruption charges involving key figures, including the prime minister. When faced with the prospect of criminal proceedings for having an illegal foreign bank account, Prime Minister Rabin resigned on the eve of the 1977 elections, providing the final blow to Labor’s chances of retaining power.
Barak served for another year as Attorney General under Prime Minister Menachem Begin. In September1978, he was a member of the Israeli delegation to the Camp David talks with Egypt. Despite his resignation from the office of Attorney General and his appointment as a justice of the Supreme Court of Israel in 1978, he was asked by the government to rejoin the negotiating team. Special permission for this purpose was granted by the Minister of Justice and the President of the Supreme Court. Barak proved to be a key figure in reaching and drafting the peace agreement with Egypt.
As a Supreme Court Justice, Barak served on a number of commissions – most notably, the Kahan Commission nominated in September 1982 to investigate Israel’s involvement in the 1982 massacres at the Sabra and Shatila refugee camps in Lebanon. The Kahan Commission found that no Israeli was “directly responsible” for the massacre, but determined that Defense Minister Ariel Sharon bore “personal responsibility,” forcing the removal of Sharon from that office.
As a Supreme Court Justice, Barak became the most influential figure in Israeli jurisprudence, creating new legal doctrines and drawing praise and attacks from different voices within Israeli society. Barak’s claim that every human dilemma can be answered by a legal doctrine has led to several legal doctrines that expanded the Court’s powers of review. Barak was the driving force in lowering the standing doctrine that served as a barrier preventing many citizens from presenting their cases to the High Court of Justice. In the landmark RESSLER case (HC 910/86), the Court acknowledged the existence of a “public petitioner,” providing that whenever a petition raises an issue of important constitutional merit, or when there is suspicion of serious executive violations of the principle of the rule of law, any person is entitled to bring a petition, regardless of one’s personal interest in the outcome of the litigation.
Barak was behind a series of decisions in the mid 1980s and early 1990s that redefined the relationship between all branches of government and established the Supreme Court as a key institution of [*826] the Israeli polity. The initial success brought with it resentment against the court. Barak became the target of ad-hominem attacks, uniting all forces that resisted limits on political autonomy and increased involvement of the Supreme Court in public affairs. Those attacks have intensified after the passing of three basic laws in 1992. In his academic writings, Barak defined this new legislation as a “constitutional revolution,” alarming the conservative and religious parties, which resisted the adoption of a formal constitution.
In 1995 Barak was appointed as President of the Supreme Court of Israel, and during his term, the Court proved to be less activist than before, showing more restraint and caution in political matters. Yet, Barak was involved in several major decisions, among them the KA’ADAN case (HC 6698/95) according Israeli Arabs the same rights accorded to Jews to live in a communal settlement located on state land; the decision to outlaw torture during security related investigations (HC 5100/94); a decision to release Lebanese detainees imprisoned in Israel as “bargaining chips” for securing the safe return of a captured Israeli pilot (FH 7048/97); redrawing the lines of the security fence in the West Bank (HC 2056/04) by taking the approach that the army’s discretion in lands under “belligerent occupancy” is not unlimited, and that the fence’s route must balance security considerations against the needs of local residents. In May 2006 Barak wrote the main minority opinion in a 6 to 5 decision (HC 7052/03) rejecting several petitions against an amendment to the Citizenship Law, which prevents Palestinians married to Israeli Arabs from becoming Israeli citizens or permanent residents (translation to English of several of those decisions and others can be found at the Supreme Court website: http://elyon1.court.gov.il/eng/verdict/search_eng/verdict_by_misc.html ).
Barak earned his early academic reputation as a scholar of private law. Since his nomination to the bench in 1978, he has published extensively on the judicial role. In addition to thousands of court decisions and dozens of articles, Barak has published eight books in Hebrew and three in English.
THE JUDGE IN A DEMOCRACY is the latest volume in this series on the judicial role. Barak sets out in a systematic way, the questions, dilemmas and solutions he has adopted as a judge. He notes the principles that should guide judges in a democratic society, when faced with constitutional questions that have implications over and above the specific concerns of the parties to a legal dispute.
The book is written in the first person, which allows Barak to stray from the kind of formal writing typical of judges. Barak shares his doubts with the reader and explains what process a judge should follow in reaching a decision where several legal options can legitimately be taken. In general, judges do not debate with those who disagree with them. It is rare to find judges who share their doubts or confess to errors, as their decisions seal personal fates and lay down the law. In this sense, Barak is [*827] very candid in discussing his philosophy, doubts, beliefs and conclusions.
Barak sets clear questions at the outset: “what is my role as a judge?”, “are there criteria for assessing the quality of my work as a judge? . . . what is my role, and do I even have a role beyond merely deciding the dispute before me according to the law?” (p.ix). Addressing those same questions in two different versions sets the tone, but from here on the two books take different turns.
The first chapter in the Hebrew version “The Role of a Judge and Judicial Discretion” is missing from the English book. I found this omission unfortunate. In the Hebrew version, Barak lays down his approach to the judicial role. Although the arguments in this chapter appear throughout the English version, placing them at the beginning provides the reader with a better understanding of what comes later. According to Barak, a judge has two primary duties: One is to bridge the gap between law and everyday reality, and the other to protect the constitution and its values. Barak argues that fulfilling this dual role is possible only if the judge possesses a freedom of choice between several possible options. When a judge is faced with more than one option, he must take the one that better bridges the gap between law and life and protects the constitution and its values. While this definition may sound obvious to some scholars of constitutional politics, it is not trivial at all in the Israeli context. Barak has been accused for the last twenty-five years of placing his own values above the language of the law and giving preference to western liberal values when the law was drafted to reflect Jewish values that stand in contradiction to liberal philosophy. Barak’s answer to these claims: I do not force my own views, all I do is to use judicial discretion when the law grants me such discretion and even in this case, I do so according to predetermined, objective and transparent set of judicial guidelines.
Barak does not shy away from issues that are distinctly political in character. In his view, all political questions can be given answers in court. To emphasize this point, Barak refers to the US Supreme court: “I think that the United States Supreme Court rightly decided to hear BUSH v. GORE rather than to abstain on grounds of non-justiciability. The issue was justiciable – both normatively and institutionally – and the court did well to rule on it” (p.188).
Athough initially praised for his willingness to tackle political questions and render decisions in matters previously considered injusticiable, Barak found that interference with the autonomy of elected officials caused considerable public resentment against him. This resentment reached its climax in 1999 when hundreds of thousands of ultra-orthodox Jews held mass demonstration against the Supreme Court and Barak was assigned a bodyguard. Furthermore, at the general elections of 1996 and 1999, religious parties found that attacking the court brings sizable electoral payoffs. Realizing the growing hostility of the religious public to the so called “secular Supreme Court,” Barak paid special [*828] attention during the ensuing years to avoid alienating rabbinical leaders and their followers. Barak has suggested the appointment of one member of the High Rabbinical Courts of Appeals to the Supreme Court, held meetings with rabbinical leaders and students of law in religious college, and relied more than in the past on Jewish law sources while writing his legal decisions.
This attempt to reach out to the religious community and explain his legal philosophy in a way that is agreeable to observant Jews, is evident in the Hebrew version which has sections on Jewish law and on the tension embedded in the phrase, “Jewish and democratic state,” a term that appears in several Israeli basic laws. At the same time, there is no section in the Hebrew book dealing with Israeli Arabs or with the occupied territories. Both issues are raised in the book, but in a minor way compared to the attention paid to Jewish tradition.
In the English version, Jewish tradition and Jewish law are granted minimal treatment. Thus, the Hebrew chapter on “Jewish and Comparative Law” becomes “Comparative Law” in English. The English version includes a chapter lacking from the earlier Hebrew book. This is Chapter Sixteen on “The Judicial Role and the Problem of Terrorism.” In a 23-page chapter, Barak explains at length the Court decisions on terrorism and occupation. He reaches out to an international audience which has become increasingly critical of Israel’s policies and of what is conceived as the Court’s providing a legal seal of approval to practices that harm basic human rights. While Justice Barak is concerned with preserving the fragile Israeli democracy, scholar Barak, when writing in English, addresses the international legal community in which he is a respectable member.
Although only a handful of readers is likely to read both books, comparison between the two has proved to be an intellectual adventure; one basic text by the same author, written in two languages and addressing two different audiences. The Hebrew version explains Barak’s legal philosophy while speaking to a Jewish audience suspicious of the Court and seeing it as a bastion of western liberal values. The English version targets an international audience, which sees Israel as a closed society somewhat detached from universal values. At the end, this exercise of addressing different audiences in one book with two versions is quite successful. Both versions are engaging and intellectually stimulating. In either language, THE JUDGE IN A DEMOCRACY should be a must read in any course or research on judicial and constitutional politics.
Barak, Aharon. 2005. PURPOSIVE INTERPRETATION IN LAW. Princeton, NJ: Princeton University Press.
H.C. 7052/03 ADALAH v. MINISTER OF INTERIOR, (yet unpublished, decision given on May 14, 2006).
Cr. A. 7048/97ANONYMOUS v. MINISTER OF DEFENSE, 54(1) P.D. 721. [*829]
H.C. 2056/04 BEIT SURIK VILLAGE COUNCIL v. GOVERNMENT OF ISRAEL.
BUSH v. GORE, 531 U.S. 98 (2000).
H.C. 6698/95 KA’ADAN v. ISRAEL LAND AUTHORITY, 54(1) P.D. 258.
H.C. 5100/94 PUBLIC COMMISSION AGAINST TORTURE v. GOVERNMENT OF ISRAEL, 53(4) P.D. 817.
H.C. 910/86 RESSLER v. MINISTER OF DEFENSE, 42(2) P.D. 441.
© Copyright 2006 by the author, Menachem Hofnung.
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The Judge in Democracy