"There are no areas of life that are outside the law." Aharon Barak

https://azure.org.il/article.php?id=395&page=all https://en.wikipedia.org/wiki/Aharon_Barak https://versa.cardozo.yu.edu/opinions/ressler-v-minister-defence   A loud portion of the country shouts out at road-blocking demonstrations that the coalition's judicial reforms constitution a regime change leading to dictatorship and the potential for rule by Jewish Law.They are truly afraid and do not want any reduction in the power of the courts to review government activity seen as contrary to their view of human rights. Those in favour of the reforms say that the regime change was, in fact, brought on in the 1990s by Supreme Court Judge Aharon Barak and that the current amendments seek to return the Supreme Court (SC) to its proper role of basing their decisions on existing law alone. They argue that the SC has become dictatorial and has taken upon itself (along with the Attorney General, but that is a topic for a separate article) the right to overturn legislation and hamstring the government when government actions are not consistent with the SC worldview, essentially preventing the government from carrying out the policies for which the electorate put them into power. Which of these is closer to the truth? In 1998, Hillel Neuer wrote an article entitled "Aharon Barak's Revolution." There were no demonstrations in the streets then supporting either side of the issue. Judicial activism went just about under the radar with few of the general public even noticing something was changing. Neuer has the authority to write such an article -- he has two undergraduate degrees from Canada (political science and law) and an MA in comparative constitutional law from the Hebrew University of Jerusalem; he served as law clerk for SC Justice Yitzhak Zamir, and has represented a number of international clients on cases of violations of their civil rights. About 20 years ago, he left his successful law practice and since then has been the CEO of UN Watch and he headed of a coalition of 25 human rights groups. I bring you a summary of the article -- you can read the entire article here. Remember, this article was written two and a-half decades ago in 1998.

The Beginning of the Judicial Revolution

Neuer claims -- as do other academics -- that the revolution began with the passing of two laws in 1992: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Neuer writes:

The laws’ passage and Barak’s ascendance to the presidency [in 1995] have dramatically improved his ability to champion the constitutional revolution. Considering that his stewardship of the court is to last for another decade, Aharon Barak may well be the single most influential person in Israeli public life today. . . . Over a judicial career spanning nearly twenty years, Barak has developed and implemented a radical judicial philosophy based on the application of legal criteria to an unprecedentedly wide array of circumstances—with the result that today virtually every controversy of Israeli public life ends up, sooner rather than later, in a courtroom. The Supreme Court’s unprecedented power to shape the ideological debate in Israel demands a closer look at Aharon Barak’s judicial worldview, and in particular his views on the role of the court in a democratic society and on the new Basic Law provisions enshrining the values of Israel as a “Jewish and democratic” state.

Neuer refers to Barak's writing to show that:

Barak’s legal philosophy begins with the belief that “the world is filled with law.” This idea, which Barak describes as his defining vision, 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.

He quotes Barak, who wrote that: "There are no areas in life which are outside of law" and, according to Neuer, Barak felt it imperative that the court have the power to ensure their opinions on government actions be heeded by means of judicial review.

The court’s capacity to protect the rule of law, however, is limited by the judge’s inherently passive role. No matter how much a government action may offend his sensibilities, a judge can only review a case that actually comes before him in court, and even then only if the complainant has a sufficiently direct interest in the case, and if the issue at hand is of the sort that courts are allowed to adjudicate.

Why is this statement jarring and important?

Herein lies the rationale behind Barak's liberal application of the terms standing (who can request the intervention of the SC) and judiciability (what matters can be considered by the SC). If the court can only review a case that comes before it, then a liberal interpretation of standing gives more individuals and groups the legitimacy to petition the court, and a liberal interpretation concernng the matters on which the court can rule means that it can rule on essentially anything. Neuer writes:

In a recent appearance before the Knesset Law Committee [Oct 1996], Barak revealed the personal origin of his beliefs on standing. While serving as attorney-general in 1977, he was confronted with a scandal that erupted over an illegal U.S. bank account maintained by Leah Rabin, wife of the sitting prime minister. Finance Minister Yehoshua Rabinowitz informed Barak of his intention to levy an administrative fine as a way to preempt criminal charges. When Rabinowitz admitted that his real concern was for the Labor government’s reelection prospects, Barak protested that the fine would never stand up in court. According to Barak, Rabinowitz responded: “No one has standing—who will go [to court]?” Barak’s resultant indignation drove him to a fateful conclusion: “I said to myself, if ever I am able to have an influence, the standing rules must be liberalized; it cannot be that only someone with an interest [can make such a challenge].”

This needs to be repeated:  Aharon Barak said to himself that if he was ever to be able to have an influence, the standing rules must be liberalized. In private issues, standing only belongs to the individual who has been directly affected by the actions of another. Until Barak changed the situation, when something involved a public or government body, Neuer writes, the individual "had to have a personal interest in the matter to be heard." That was the basis upon which Ressler petitioned the SC against IDF deferral for Yeshiva students, saying that the fact that they were not drafted meant he had to spend more time in the reserves (as discussed in former SC Justice Shoshana Netanyahu's 1993 article that I summarized). The court rejected his petition in 1970, 1981, and 1982, saying it was a political matter that had no place in the courts. Barak had become a SC judge in 1978 and by 1986, the court changed its mind about Ressler's petition and allowed it.