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The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-Led Constitutional Revolutions and Democratic Backsliding

Rivka Weill

Abstract

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy.


Corresponding author: Rivka Weill, Harry Radzyner Law School, IDC, Herzliya, Israel, E-mail:

This Article was written while I was a Visiting Law Professor at Yale Law School in Spring 2018 and first posted on SSRN in December 2018. This Article presents ideas I taught my students and TAs over more than a decade of teaching Israeli constitutional law, primarily at the IDC. I clerked for President Aharon Barak at the time United Mizrahi Bank, Israel’s Marbury v. Madison decision, was decided. This Article is dedicated with love and deep appreciation to Aharon Barak. Many of the decisions discussed in this Article are available in English. See Versa-Opinions of the Supreme Court of Israel — A Project of Cardozo Law, http://versa.cardozo.yu.edu/. I also thank Gila Stopler, Iddo Porat, and Yuval Shany for inviting me to take part in the workshop on “Democratic Backsliding and Human Rights” on January 2–3, 2019. Special thanks are due to Bruce Ackerman, Yoav Dotan, Mark Tushnet, and the anonymous referee for their comments. The Article benefited from comments of participants at various forums, including HIR-The Bayit, Law & Ethics of Human Rights Workshop, Hebrew U. Faculty of Law Seminar, and the Sixth Annual Int’l Symposium on Constitutional Agendas. I thank On Dvori and Oren Rubin for their research assistance.


Published Online: 2020-12-04
Published in Print: 2020-11-25

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