Friday, January 19, 2007

Chief Justice Barak's Revolution

Chief Justice Barak has been the dominant figure in the Israeli Supreme Court for over 20 years. Prior to his appointment, the Israeli Supreme Court was perceived as marginal to the politics of the state. Chief Justice Barak's value laden rhetoric and his so called activism have transformed the Israeli Supreme Court and its public image. The Court is perceived as an independent actor with its own (moderate liberal) agenda. This perception generates two kinds of opposition. On the one hand, the religious and conservative forces perceive the Court as an enemy of religious and conservative values. Consequently there are persistent attempts at limiting the Court's powers and/or changing its composition. On the other hand, the radical left perceives the Court as a means of legitimating the practices characterizing the brutal occupation of the territories. The willingness of the Court to examine and review issues such as targeted assassinations, demolition of houses and torture and to affirm the legality of some of these practices is in the view of its left wing critics pernicious.

These facts are often provided as evidence that Chief Justice Barak defended a liberal ideology supported by the established elites against the newly emerging powers in Israeli society. It was even claimed that legislation establishing the powers of the Court was deliberately created in order to protect the interests of liberal elites. This inference is flawed. The fact that Barak’s decisions were often supported by traditional liberal elites is more an indication that these elites are more committed to values of equality and the rule of law than other sectors rather than an indication that the Court has a liberal ideology.

Irrespective of what one thinks of the Barak Era, it is clear that Chief Justice Barak has changed Israeli law in fundamental ways. Barak revolution transformed a “black letter” legal culture” into a justice-based or policy-based legal culture. It has also transformed the Court into an active force in the political life of the country.