Tuesday, September 04, 2007

Barak to Beinish

Any short list of the most powerful jurists of the last half century would have to include Aharon Barak, former Chief Justice of the Supreme Court of Israel at or near the very top. In a legal system in which many had previously thought parliamentary supremacy the operative grundnorm, and with only the text of a handful of "basic laws," Barak established his court as a power to be reckoned with.

To be sure, Barak was never the activist countermajoritarian monster that his critics decried. For example, Judge Posner wrote a largely negative account of Barak in The New Republic, (which is only available in full text to TNR subscribers or via Lexis or Westlaw). In it, Posner said, among other things, that Barak has said that the Knesset cannot repeal the Basic Laws---a view that I do not think Barak has actually espoused. More broadly, Posner and fellow Barak critic Robert Bork (with whom Posner has his own methodological disagreements) seem unaware that Israeli judges in general are expected to be much more "activist" than U.S. judges. In contract law, for example, Israeli judges routinely infer/impose terms that are nowhere evident on the face of the contract. And further, despite his methodological activism, Barak's substantive rulings have, for the most part, been agreeable to the Israeli public and political classes (as Posner acknowledges).

Like any revolution built on the force of the leader's personality, it was unclear how much of Barak's legacy would survive his retirement from the Court last year. The most recent decision (reported in the NY Times here) requiring the rerouting of the West Bank security barrier/fence/wall illustrates that Barak's successor, Dorit Beinish, will continue to lead a powerful court. Beinish's substantive views are hardly surprising, given the role that Barak and his allies played in naming her as the new Chief Justice, but there was no guarantee that Beinish would be able to lead the court as effectively as Barak did. Barak, after all, had been called the "John Marshall of Israel," and like Marshall, he was able to produce results as much by force of personal charisma as by the force of his arguments. So far, it appears that Beinish will be able to do much the same.


Ori Herstein said...

Right on.

One comment.
The argument that: " . . . Israeli judges in general are expected to be much more "activist" than U.S. judges. In contract law, for example, Israeli judges routinely infer/impose terms that are nowhere evident on the face of the contract", is not a good counter argument against attacks on Jusice Barak's "activism", since, as far as I know, the main judicial force behind that contract doctrine in Israel was non other than Justice Barak himself. It is like arguing that Justice Barak’s “activism” is legitimate in the Israeli context, because Justice Barak (and his court) is an “activist”.

Michal said...

A couple of comments (this is bringing us Israelis out of the woodwork, I guess). First - I tend to agree with Ori's comment about activism in contract law; although Israeli Contract Law follows German notions of "good faith and accepted practice" - language that is taken directly from S. 242 of the BGB - Barak was the one who used these notions to move further away from textual interpretation than probably any legal system in the world (German Contract Law included, from the little I know about it). Before Barak (and, in fact, throughout much of Barak's tenure as well), these notions were used to complement the text, not replace it, even when the courts believed the contractual text made little to no sense.
Second, the main critique of Barak's Court was directed at its activism in the realms of constitutional and administrative law, not private law. Although Barak himself would probably argue that the same basic approach to the role of Courts guided him in these different areas of the law, I'm not sure activism as such holds up as well in all areas of the law - for example, I'm sure that some L&E people (who are not as conservative as Bork) would argue that activism in Contract Law is inefficient, whereas activism in constitutional interpretation may be desirable; similarly, I believe that Bickel-like arguments hold up much better in the public law sphere than in private law (to the extent they have any real power in private law). In short - activism in contract law, justified or not, should not necessarily guide our understanding of the role of courts in public law.
Finally, I think that the post ignores two important facts: the first is that Beinish's grip on the Court is nowhere near as strong as was Barak's, and is getting weaker with time. True, this week's barrier decision is bold; however, in perspective, it is not groundbreaking, and in essence does nothing more than apply the parameters that the Barak Court set out. Beinish's leadership would be tested in her ability to apply the Barak approach (or her version of it) to new issues; this weeks decision is not such a test. Second, and related, the post ignores the formation of what appears to be rather formidable opposition to Beinish, in the form of Justice Minister Friedman and his followers. Friedman does not hide his intentions to push back on Barak's legacy - a novelty for Justice Ministers. Moreover, Friedman is the first Justice Minister in over two decades to stand on equal intellectual footing with the Chief Justice; where Barak was a giant who was confronted by a series of legal light-weights as Justice Ministers, Friedman is at least Beinish's equal (and most would argue her superior) in terms of sheer jurisprudential standing. Friedman already proved himself to be a political novice with a couple of early fouls; nonetheless, if he stays in office for some time (an issue that is itself unclear), Barak's legacy would likely be in danger, this week's decision notwithstanding.

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