Aharon Barak ( he, אהרן ברק; born Erik Brick, 16 September 1936) is an Israeli lawyer and jurist who served as President of the

Supreme Court of Israel The Supreme Court (, ''Beit HaMishpat HaElyon''; ar, المحكمة العليا) is the Supreme court, highest court in Israel. It has ultimate appellate jurisdiction over all other courts, and in some cases original jurisdiction. The Supreme C ...

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 as Attorney General of Israel from 1975 to 1978. From 1974 to 1975, Barak was Dean of the Law Faculty of the

Hebrew University of Jerusalem The Hebrew University of Jerusalem (HUJI; he, הַאוּנִיבֶרְסִיטָה הַעִבְרִית בִּירוּשָׁלַיִם) is a public research university based in Jerusalem, Israel. Co-founded by Albert Einstein and Dr. Chaim Weiz ...

. Barak is currently a law professor at Reichman University in Herzliya, and has taught at institutions including Yale Law School, Central European University, Georgetown University Law Center, and the University of Toronto Faculty of Law.

Early life and education

Aharon Barak was born in

Kaunas Kaunas (; ; also see other names) is the second-largest city in Lithuania after Vilnius and an important centre of Lithuanian economic, academic, and cultural life. Kaunas was the largest city and the centre of a county in the Duchy of Trakai ...

, 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 spent three years in the Kovno ghetto. 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 and immigrated to Palestine. After a brief period on a ''

moshav A moshav ( he, מוֹשָׁב, plural ', lit. ''settlement, village'') is a type of Israeli town or settlement, in particular a type of cooperative agricultural community of individual farms pioneered by the Labour Zionists between 1904 an ...

'', the family settled in Jerusalem. He studied law, international relations and economics at the

, and obtained his Bachelor of Laws in 1958. Between 1958 and 1960, having been drafted into the Israeli Defense Forces, he served in the office of the Financial Advisor to the Chief of Staff. Upon discharging his service he returned to the Hebrew University, where he completed his doctoral dissertation with distinction in 1963. Simultaneously he began work as an intern at the Attorney General's office. When the Attorney General began dealing with the trial of

Adolf Eichmann Otto Adolf Eichmann ( ,"Eichmann"
''

Holocaust survivor, preferred not to be involved in the work. He was transferred to the

State Attorney In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a loc ...

's office to complete his internship at his request. Upon completing his internship he was recognised as a certified attorney.

Academic career

Between 1966 and 1967 Barak studied at Harvard 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 the

Israel Prize The Israel Prize ( he, פרס ישראל; ''pras israél'') is an award bestowed by the State of Israel, and regarded as the state's highest cultural honor. History The Israel Prize is awarded annually, on Israeli Independence Day, in a state cer ...

for legal research. In the same year he became a member of the Israel Academy of Sciences and Humanities. In 1978 he became a foreign member of the American Academy of Arts and Sciences.

Resumption of academic career

After his retirement from the Supreme Court, Barak joined the staff of the Reichman University in Herzliya, and he teaches in the master's degree program for Commercial Law. He also lectures in the Bachelor of Laws program. In addition, he continues to lecture at both the Yale Law School and the University of Alabama in the United States, as well as lecturing as a Distinguished Visitor at the University of Toronto Faculty of Law.

Attorney General of Israel

Between 1975 and 1978, Barak served as the Attorney General of Israel. Among his well-known decisions in this capacity were: * The decision to launch a criminal investigation against Asher Yadlin, CEO of Clalit Health Services and a nominee for the position of director of the

Bank of Israel The Bank of Israel ( he, בנק ישראל, ar, بنك إسرائيل) is the central bank of Israel. The bank's headquarters is located in Kiryat HaMemshala in Jerusalem with a branch office in Tel Aviv. The current governor is Amir Yaron. T ...

. Yadlin was convicted of accepting a bribe and sentenced to 5 years imprisonment. During this incident Barak coined the so-called

Buzaglo test The Buzaglo test is a phrase coined in Israeli law which subsequently developed into an idiom in Israel. In 1976, the Attorney General of Israel at the time, Aharon Barak, decided to begin a criminal investigation against Asher Yadlin in relation ...

. * The decision to continue with the police investigation of Housing and Construction Minister

Avraham Ofer Avraham Offer ( he, אברהם עופר, 1922 as Avraham Hirsch – 3 January 1977) was an Israeli politician, famous for committing suicide following the eruption of a corruption scandal. Biography Ofer was born in the Chorostków shtetl in P ...

, despite the Minister's request that the investigation be terminated. Ofer committed suicide in 1977, prior to the conclusion of the investigation. * The decision to prosecute Leah Rabin due to the Dollar Account affair. This decision brought about the resignation of the Israeli Prime Minister Yitzhak Rabin. In justifying his decision not to prosecute Yitzhak Rabin for the affair, Barak has argued that "Rabin was severely punished in that he was forced to resign from his position. There was no room to punish him further." Barak was appointed by Israeli Prime Minister

Menachem Begin Menachem Begin ( ''Menaḥem Begin'' (); pl, Menachem Begin (Polish documents, 1931–1937); ''Menakhem Volfovich Begin''; 16 August 1913 – 9 March 1992) was an Israeli politician, founder of Likud and the sixth Prime Minister of Israel. B ...

in 1978 as the legal advisor to the Israeli delegation for negotiating the

Camp David Accords The Camp David Accords were a pair of political agreements signed by Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin on 17 September 1978, following twelve days of secret negotiations at Camp David, the country retrea ...

. In his book '' Palestine: Peace Not Apartheid'', Jimmy Carter praises Barak as a negotiator despite the political disagreements between them.

Supreme Court of Israel

On 22 September 1978, Barak began his service as a Justice of the

– the youngest of all of the judges. In 1982–83 he served as a member of the Kahan Commission, a state investigation committee formed to investigate the circumstances surrounding the Sabra and Shatila massacre. As part of the committee's conclusions, then Minister of Defense

Ariel Sharon Ariel Sharon (; ; ; also known by his diminutive Arik, , born Ariel Scheinermann, ; 26 February 1928 – 11 January 2014) was an Israeli general and politician who served as the 11th Prime Minister of Israel from March 2001 until April 2006. S ...

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 Court Menachem Elon, Barak was appointed the Deputy President. Subsequently, with the retirement of the President

Meir Shamgar Meir Shamgar ( he, מאיר שמגר; August 13, 1925 – October 18, 2019) was the chief justice of the Israeli Supreme Court from 1983 to 1995. Biography Meir Shamgar (Sterenberg or Sternberg) was born in the Free City of Danzig (present-da ...

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. He canceled the standing test which Israel's Supreme Court had used frequently, and greatly expanded the scope of

justiciability Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...

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
ange of Ange (English: Angel) is a French progressive rock band formed in September 1969 by the Décamps brothers, Francis (keyboards) and Christian (vocals, accordion, acoustic guitar and keyboards). Since its inception the band's music has been insp ...
fields in which it is illing to intervene

Simultaneously, he advanced a number of standards, both for public administration (mainly, the standard of the reasonableness of the administrative decision) and in the private sector (the standard of

good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...

), 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. Since 1992, much of his judicial work was focused on advancing and shaping Israel's ''Constitutional Revolution'' (a phrase which he coined), which he believed was brought about by the adoption of Basic Laws in the Israeli Knesset 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 a parliamentary democracy to a constitutional parliamentary democracy, in that its Basic Laws were to be interpreted as its constitution. During his time as President of the Supreme Court, Barak advanced a

judicial activist Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

approach, whereby the court was not required to limit itself to

judicial interpretation Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United Stat ...

, but rather was permitted to fill the gaps in the law through judicial legislation at common 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 orce 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

he role of He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...

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 of precedents regarding damages in tort for residents of the Palestinian territories, Israel's policy of targeted 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 Israeli Civil Codex, which worked to unite the 24 main civil law statutes in Israeli law under a single comprehensive law.

Important judgments

* CA 6821/93 ''United Hamizrahi Bank Ltd. v. Migdal Kfar Shitufi'' 49(4) P.D 221: The judgment in which Barak, together with other judges, described the

Constitutional Revolution The Persian Constitutional Revolution ( fa, مشروطیت, Mashrūtiyyat, or ''Enghelāb-e Mashrūteh''), also known as the Constitutional Revolution of Iran, took place between 1905 and 1911. The revolution led to the establishment of a par ...

as he understood it, which began following the legislation of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Employment. In this case it was held that the Supreme Court could strike down Knesset legislation which is inconsistent with these Basic Laws. * CA 243/83 ''The Jerusalem Municipality v. Gordon'', 39(1) P.D 113: In this judgment Barak reformed key aspects of Israeli tort law. * HC 3269/95 ''Katz v. Regional Rabbinical Court'', 50(4) P.D 590: In this judgment Barak held, sitting as Deputy President to

, that the laws pertaining to property disputes arising from divorce are not caused by the act of marriage and thus are not to be regarded as matters of marriage. Rather, they derive from an agreement between the parties and are an aspect of the freedom of association. This case established that the Israeli Rabbinical courts must apply the doctrine of joint matrimonial property, a doctrine based in Israeli common law rather than the Halakha (Jewish religious law). * CA 4628/93 ''State of Israel v. Guardian of Housing and Initiatives (1991) Ltd.'', 49(2) P.D 265: In this judgment Barak proposed a new approach to contract construction, holding that a lot of weight should be given to the circumstances which led to the formation of the contract. Some aspects of Barak's views in this regard remain controversial, but his general approach to contract construction is today accepted by the Supreme Court. * CA 165/82 ''Kibbutz Hatzor v Assessing Officer'', 39(2) P.D 70: This judgment was a turning point in the interpretation of tax law in Israel, in establishing that a purposive approach was generally preferred to textualism in determining the meaning of the law. * FH 40/80 ''Koenig v. Cohen'', 36(3) P.D 701: In this judgment Barak, in the minority, expounded upon his approach to interpreting legislation. Today this approach has become an acceptable approach to statutory interpretation. * CA 817/79, ''Kossoy v. Y.L. Feuchtwanger Bank Ltd.'', 38(3) P.D 253: In this judgment Barak imposed a duty of fairness upon one who controls a company, holding that one who controls a company cannot sell his shares of the company when as a consequence of doing so the company, and thus its shareholders, would be harmed.

Impact, praise and criticism

Barak's decisions as President of the Supreme Court impacted many aspects of life in Israel, and were the subject of both praise and criticism. Barak championed a proactive judiciary that has interpreted Israel's Basic Law as its constitution, and challenged Israeli parliament (Knesset) laws on that basis. Two of his books on legal commentary have been translated to English. Following his retirement from the Supreme Court, the new President of the Court, Judge

Dorit Beinisch Dorit Beinisch ( he, דורית ביניש; born February 28, 1942) was the 9th president of the Supreme Court of Israel. Appointed on September 14, 2006, after the retirement of Aharon Barak, she served in this position until February 28, 201 ...

, 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 residencydiffers 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 the right 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 ithin thebounds 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.

Among critics of Barak's judicial activism are former President of the Supreme Court of Israel Moshe Landau, Ruth Gavison, and Richard Posner. Posner, a judge on the United 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." 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." 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. He is also critical of Barak's view of the separation of powers, arguing that, in effect, it is that "judicial power is unlimited and the legislature cannot remove judges." He also asserts that Barak fails to apply his own judicial philosophy in practice at times. 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. He also suggested that if there were a Nobel prize for law, Barak would likely be among its early recipients. Beyond the legal community, on both the left and right of the political spectrum, there are those who were highly critical of Barak. His judgments on matters of security, in particular, have been subject to criticism by some on both the left and the right. Barak is a secular Jew but believes in compromise with the religious sector, and state support for religion. 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 both

Haredim Haredi Judaism ( he, ', ; also spelled ''Charedi'' in English; plural ''Haredim'' or ''Charedim'') consists of groups within Orthodox Judaism that are characterized by their strict adherence to ''halakha'' (Jewish law) and traditions, in oppos ...

and

Religious Zionists Religious Zionism ( he, צִיּוֹנוּת דָּתִית, Romanization of Hebrew, translit. ''Tziyonut Datit'') is an ideology that combines Zionism and Orthodox Judaism. Its adherents are also referred to as ''Dati Leumi'' ( "National Religiou ...

) held a mass protest against the Supreme Court under his presidency, after the Supreme Court ruled that in cases of divorce the Israeli religious courts of law are required to decide property disputes according to the law of the Knesset rather than according to the Halakha.

Key legal doctrines

Justiciability Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...

Judicial discretion Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Wher ...

Reasonability Reasonability is a legal term. The scale of reasonability represents a quintessential element of modern judicial systems and is particularly important in the context of international disputes and conflicts of laws issues. The concept is founded on ...

* Proportionality * Purposive interpretation 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.

Personal life and recognition

Barak is married to

Elisheva Barak-Ussoskin Elisheva Barak-Ussoskin ( he, אלישבע ברק-אוסוסקין; born 13 October 1936) is an Israeli retired judge. She sat on the Regional Labor Courts in Jerusalem and Beersheba from 1990 to 1995, and served as judge on the National Labor C ...

, former vice president of the National Labor Court, with whom he has three daughters and a son, all trained in the law. Barak's son-in-law Ram Landes made a one-hour documentary film about Barak in 2009 called ''The Judge'' (), based on an in-depth interview with Barak.

Awards and honors

* In 1975, Barak was awarded the

, in jurisprudence. * In 1987, he was elected a Foreign Honorary Member of the American Academy of Arts and Sciences. * In 2003, he received Honorary Degrees from Brandeis University. * In 2006, he received the Justice Prize of the Peter Gruber Foundation for "outstanding courage and principle who has devoted his life to the promotion of justice and the just rule of law." * In 2007, he received Honorary Degrees from Columbia University.

Published works

* ''Judicial Discretion'' (1989) * ''Purposive Interpretation in Law'' (2005) Book review. * ''The Judge in a Democracy'' (2006)
Begin and the Rule of Law, ''Israel Studies'', Indiana University Press, Volume 10, Number 3, Fall 2005, pp. 1–28

References

External links

Aharon Barak
– in the online exhibition "To Build and To Be Built" – The Contribution of Holocaust Survivors to the State of Israel – Yad Vashem

(Princeton University Press, 2006)
"The Legacy of Justice Aharon Barak: A Critical Review", by Nimer Sultany

Review of Barak's book, Hassan Jabareen

Human Rights and their Limitations: The Role of Proportionality
Video of a lecture by Aharon Barak for the Foundation for Law, Justice and Society, Oxford, 2009 {{DEFAULTSORT:Barak, Aharon 1936 births Chief justices of the Supreme Court of Israel Harvard University alumni Hebrew University of Jerusalem faculty Israel Prize in law recipients Reichman University faculty Living people Lithuanian Jews University of Toronto Faculty of Law faculty Yale Law School faculty Attorneys General of Israel Members of the Israel Academy of Sciences and Humanities Lithuanian emigrants to Mandatory Palestine Israeli people of Lithuanian-Jewish descent Fellows of the American Academy of Arts and Sciences Kovno Ghetto inmates Israeli Jews Georgetown University Law Center faculty People from Kaunas