A Guide to Judicial Legitimacy and Effectiveness: The Strategic Court of Justice Barak

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Constitutional revolutions capture the human imagination and generate tectonic shifts in the political life of nations. Accordingly, scholars have long sought to identify how such revolutions occur and why. In recent years, there has been growing academic interest in understanding the phenomenon of democratic erosion, its relationship to constitutional revolutions, and the distinctions between democratic backsliding and mere public dissatisfaction with current political leadership.

Israel presents a compelling case study for both research inquiries. In the mid-1990s, the country underwent a constitutional revolution through which its legal system transitioned from a model based on parliamentary sovereignty to one centered on constitutional supremacy. In addition, particularly over the last decade, Israel’s legal gatekeepers have come under sustained attack from political actors—of the sort commonly associated with periods of democratic regression.

This piece, based on my article regarding Aharon Barak’s Strategic Court, seeks to examine: How did constitutional revolutions unfold in Israel? How was their legitimacy established? What made them effective? And how can the answers to these questions deepen our understanding of the recent challenges to the Court’s legitimacy?

The Structure of Judicial Revolutions

The development of Israel’s constitutional order is inextricably linked to Justice Aharon Barak. Barak left a profound imprint on Israel’s legal system through his charismatic personality, exceptional intellectual capacity, expertise across all fields of law, and the extensive professional experience he amassed in both academia (as professor, dean, and Israel Prize laureate) and the executive branch (as Attorney General). His command of both private and public law enabled him to participate in public committees charged with codifying Israeli law, granting him legislative influence as well. Throughout his career, he uniquely fulfilled the roles of academic, judge, legislator, and executive actor. Even today, nearly fifteen years after his retirement, law faculties continue to teach his opinions across numerous courses.

This article contends that the Israeli Supreme Court under Barak’s leadership can be aptly described as “Barak’s Court,” analogous to how Americans refer to the Warren Court or the Marshall Court. Unlike those examples, however, Barak’s influence began at the very outset of his judicial tenure, long before his appointment as Chief Justice. His relatively young age at appointment—combined with the knowledge that he would serve twenty-eight years on the Court, including eleven as Chief Justice—further reinforced his influence both within and beyond the judiciary.

Barak’s revolutionary judgments often shared a common pattern: the ratio decidendi would accommodate the governing political actors on matters of pressing public concern, and the ultimate outcome was usually the dismissal of the petition, much to the petitioners’ disappointment. However, the reasoning—largely obiter dictum—was groundbreaking, privileging long-term institutional positioning over immediate relief. Frequently, it also expanded and entrenched the judiciary’s powers vis-à-vis other branches of government. Thus, even as these rulings restructured fundamental legal doctrines, their practical “bite” was often deferred—felt only by future political actors not present in the courtroom at the time of decision.

These judicial tactics served a dual strategic purpose:

1. To preserve the judiciary’s legitimacy in the eyes of the other branches of government (external considerations), and

2. To satisfy the collegial dynamics within the bench (internal considerations), given the Supreme Court’s character as a collective body.

In fact, Barak’s legal reasoning in these landmark decisions often reflected a minority view in terms of legal rationale. However, since judicial majorities are typically defined by the result rather than the reasoning, the dismissal of petitions ensured the support of other panel members for the judgment’s outcome. This contributed to the public and academic perception that Barak’s reasoning represented the opinion of the Court. As a result, his interpretations later crystallized into binding precedent.

1. The Purposive Interpretation Revolution

This revolution mandates that courts consider not only the plain language of a legal text and the subjective intent of its drafters, but also its objective purpose, namely the advancement of the foundational values of the legal system. In cases of conflict between subjective intent and the objective purpose, the latter prevails—at least in the realm of public law. While Barak did not invent purposive interpretation, he succeeded in entrenching it as the exclusive legitimate method of interpretation. Only recently have cracks begun to emerge in judges’ absolute fidelity to this doctrine. Purposive interpretation was a critical tool for Barak in laying the groundwork for later legal revolutions, as he frequently framed them as matters of interpretation, relying heavily on the objective purpose of the text.

Was the question “Do the Basic Laws constitute a constitution?”—as posed in Bank Mizrahi—merely one of interpretation? Similarly, was “Does the right to dignity encompass the right to equality?”—as asked in Movement for Quality Government—also just an interpretive issue? Barak framed these foundational constitutional questions as matters of legal interpretation, and therefore, as questions within the Court’s professional domain.

2. The Reasonableness Revolution

Two years after his appointment, in 1980, Barak authored the leading opinion in the Golden Pages case, which marked the beginning of the reasonableness revolution. There, Barak required administrative authorities to consider all relevant factors and assign them appropriate weight. He clarified that this requirement constituted an independent ground for judicial review of administrative discretion. President Landau objected to imposing a reasonableness standard on administrative authorities but nonetheless joined the judgment’s outcome. Justice Ben-Porat leaned toward Barak’s view but did not formulate a definitive position, as the petition was ultimately dismissed.

Importantly, had the reasonableness requirement been formally adopted in this case, it is questionable whether the factual grounds would have warranted dismissal. In that judgment, Barak left unresolved whether judicial intervention was warranted only in cases of extreme unreasonableness or in all instances of administrative unreasonableness. Later jurisprudence opted for broader review, intervening even in non-extreme cases. Follow-up decisions transformed Barak’s rationale—requiring adherence to the reasonableness standard—into binding precedent.

3. The Standing and Justiciability Revolution

In the Ressler case (1988), the Supreme Court rejected Major (Res.) Ressler’s petition challenging the non-conscription of yeshiva students. Yet its reasoning substantially expanded the doctrine of standing, enabling virtually any public petitioner to petition the Court to ensure the rule of law. Moreover, the decision advanced the doctrine of justiciability, holding that virtually all matters were, in principle, subject to judicial determination. According to Barak’s reasoning, “in the absence of a judge, there is no law.”

Without the reasonableness revolution, Barak could not have launched this justiciability revolution. Reasonableness provided the doctrinal tool with which to assess the legality of governmental action: if no other legal norm applies, the court can always ask whether the action is reasonable; if not, it is unlawful. Interestingly, in Ressler, President Shamgar expressed reservations about the notion that all governmental acts are justiciable, arguing that issues predominantly non-legal in nature should remain within the purview of the political branches. Deputy President Ben-Porat, for her part, cautioned against transforming the public petitioner into the typical petitioner. However, because the petition was dismissed, these reservations did not prevent the eventual adoption of Barak’s position as controlling doctrine.

The Ressler revolution enabled the judiciary to become a significant political actor—not in the sense of engaging in partisan politics, but in the sense of wielding substantial governmental power, thereby competing with other branches. Unlike political actors, judges cannot choose which issues to address; however, as Israel’s High Court of Justice, the Supreme Court can be petitioned directly. The expansion of standing and justiciability opened this route to public petitioners and transformed the Court into a forum to which all significant political issues are brought almost immediately. Consequently, civil society organizations are incentivized to act as repeat litigants, using the Court to advance agendas that fail in the political arena. Reflecting this trend, numerous landmark rulings bear the names of public petitioners, such as the Movement for Quality Government and Adalah.

4. The Constitutional Revolution

These developments paved the way for the landmark Bank Mizrahi decision in the mid-1990s, which declared the Basic Laws to be Israel’s formal constitution and established the Court’s authority to exercise judicial review over primary legislation. All justices—including Justice Cheshin, who rejected the notion that the Basic Laws constituted a constitution—agreed that the Court had the authority to review primary legislation and that the amendment to the “Gal Law,” which impaired the banks’ property rights, should not be invalidated. This consensus enabled all justices to concur in President Shamgar’s result.

Contrary to popular belief, Bank Mizrahi did not produce a unified adoption of the constituent power doctrine. The justices remained divided as to the source of the Court’s authority to review legislation. Barak’s claim that the Knesset possesses constituent power represents only a plurality view; no single theory commanded a majority. Since Bank Mizrahi, the Court has not directly confronted a case that would require resolving the disagreements among these competing foundations for judicial review.

5. The Rights Revolution

In 2006, on the eve of Justice Barak’s retirement, his Court delivered the landmark ruling in Movement for Quality Government, which marked a constitutional revolution in the domain of equality. This was yet another instance in which the issue of drafting yeshiva students reached the Court, this time in the context of the constitutionality of the Tal Law. Once again, the Court allowed ultra-Orthodox men to remain exempt from military service, as the petition was rejected by majority opinion. Yet President Barak used the opportunity to engineer a revolution of far greater constitutional significance than the specific question of military conscription. At the time of the enactment of Basic Law: Human Dignity and Liberty, the Knesset deliberately omitted the right to equality from the law’s explicit text, as including it would have prevented the coalition from securing the majority needed for its passage. Nevertheless, Barak held that a violation of equality that amounts to an infringement on an individual’s autonomy also constitutes a violation of the constitutional right to human dignity.

Following the ruling, legal scholars and practitioners began to question what kinds of equality violations would not fall under the umbrella of human dignity. The right to dignity effectively became a catch-all framework—akin to the adage, “What is hateful to you, do not do to your fellow”—a concept so broad that it approximated the aspiration to summarize the entire law while standing on one foot. Given that the recognition of equality as part of the right to human dignity was of greater importance than the conscription issue itself, the ruling in Movement for Quality Government includes no substantive engagement with the hard questions of equality implicated in military exemption for yeshiva students. There is no discussion of the army’s practical difficulties in conscripting them, the relevance of distinctions between the ultra-Orthodox and the general population, or the potential impact of such conscription on the integration of women in the military.

The Effectiveness of Barak’s Jurisprudence

Justice Barak was an extraordinarily effective strategic jurist. Some of this effectiveness stemmed from his exceptional personal abilities; other factors derived from the domestic and international political context in which he operated. He was a long-term player in a system dominated by short-term political actors. While Barak served on the Court for twenty-eight years (1978–2006), Israel’s parliamentary system—with proportional elections—produced governments with an average lifespan of only twenty-two months during that same period. As a result, the immediate outcomes of his rulings tended to appease the short-term interests of political actors, as they did not threaten coalition stability. The deeper implications of his judgments—their “bite”—typically emerged only in the longer term, affecting future political players who were not party to the proceedings. Moreover, political actors tended to focus on the result rather than on judicial reasoning, operating on the principle that “actions speak louder than words.” Because Barak’s decisions often maintained the status quo while advancing revolutionary reasoning, political actors largely failed to internalize their transformative impact.

Additionally, during Barak’s tenure, political power alternated between right- and left-wing parties. Each side recognized the advantages of a strong judiciary to protect its rights when it found itself in the political minority. This afforded the Court a degree of maneuvering space. Barak also led the Court during tumultuous times: the First and Second Intifadas, the establishment of the International Criminal Court, and the rise of universal jurisdiction doctrines in response to grave international crimes. In such a complex geopolitical environment, political actors came to view an independent and powerful Supreme Court as an asset—a shield that could offer protection in the international arena. On occasion, it was even politically convenient for politicians to have the Court decide controversial questions, such as those surrounding religious conversions.

The Legitimacy of Barak’s Jurisprudence

While Barak’s judicial revolutions sometimes drew fierce criticism from political actors, his jurisprudence could not have been as effective as it was without considerable legitimacy. Throughout his tenure, Barak primarily relied on interpretive doctrines and administrative law—legal tools that are characteristic of systems rooted in parliamentary sovereignty. These tools do not inherently threaten representative bodies, which retain the ability to override judicial decisions through legislation. They also accord respect to representative institutions: by enforcing administrative law, courts uphold the subordination of the executive to the legislature; by interpreting statutes, courts claim only to be implementing legislative intent. As a result, it is more difficult for elected bodies to argue that judicial interpretation amounts to rewriting the law or distorting legislative will. In this sense, interpretation is often a more radical judicial act than outright invalidation, but it draws less public backlash. Legislatures, too, find it easier to treat interpretation as provisional and to respond by enacting contrary legislation if they disagree.

During Barak’s presidency, the Court explicitly invalidated laws or statutory provisions in only five cases. Politically, these cases were balanced: across the ideological spectrum, each side saw some victories and some defeats. In other words, Barak laid the doctrinal groundwork for radical judicial tools, but was highly cautious in their exercise.

The judicial revolutions he led fall into two categories. Some were revolutions in the substance of judicial doctrines, but their starting point was already within the sphere of common law self-imposed limitations. Issues such as standing, justiciability, judicial review of administrative discretion, and even interpretive methodologies (e.g., purposive interpretation) are all matters governed by judge-made common law. Courts around the world—including in Israel—develop such limitations on their own authority to protect themselves from political reprisal. And if judges create these limits, they may also revise or remove them—the mouth that forbade is the mouth that permits.

Doctrines concerning judicial review of administrative discretion are almost entirely of judicial creation under Israeli common law. Thus, if administrative authorities are to be required to act reasonably, it falls to the Court to define and enforce what constitutes reasonableness. Likewise, the choice of interpretive methodology is generally considered a matter of judicial discretion in common law systems and falls under the principle of judicial independence. Unsurprisingly, the purposive interpretation revolution emerged from within the judiciary itself.

Barak’s overall jurisprudential theory, I argue, reveals his view that the doctrine of parliamentary sovereignty itself originates with the judiciary—that the legislature’s authority is contingent on the judiciary’s recognition of its legitimacy. Consequently, even parliamentary sovereignty is subject to limitations developed by the courts through the common law. Nevertheless, Barak never explicitly articulated this position.

Another Type of Judicial Revolution: Interpretation as Transformation

A distinct category of judicial revolutions manifested in the form of interpretation—such as the constitutional revolution or the rights revolution. “Why are the Basic Laws considered Israel’s formal constitution?” President Barak answered in Bank Mizrahi: “Because that is the interpretation that best fits Israel’s constitutional history.” “Why is equality part of the right to human dignity?” Barak responded in Movement for Quality Government: “Because that is the purposive interpretation of the right to dignity.” Courts, by necessity, cannot avoid interpreting legal norms as part of their duty to apply them—a principle famously articulated by Chief Justice Marshall in Marbury v. Madison.

The Challenges Facing Barak’s Successors

Following Barak’s retirement, the role of the Supreme Court changed significantly. I will touch here on only a few aspects. While Barak served for eleven years as President of the Court, the eleven years following his departure saw four different Presidents. Whereas during Barak’s presidency, the Court struck down only five laws or statutory provisions, in the subsequent period the rate of annulment of legislation nearly tripled.

Concurrently, while Barak’s Court benefited from political alternation between left- and right-wing coalitions, from 2009 to 2021 Benjamin Netanyahu served as Prime Minister—representing an extended period of ideological continuity in government. In a small parliamentary democracy with proportional representation, deep societal divisions, and chronically underrepresented minorities, the need for a strong judiciary to safeguard fundamental rights is paramount. But to remain strong, the judiciary must also act strategically.

This is particularly true in Israel’s legal system, where the status of the Supreme Court is grounded in Basic Law: The Judiciary, a law that is not entrenched. Barak’s successors must recognize that part of his legacy is not only doctrinal, but strategic—a legacy concerned with the cultivation and preservation of the Court’s institutional strength. Judicial strategy, in this context, is not about politics; it is about securing the legitimacy and long-term capacity of the judiciary to fulfill its constitutional role.

Suggested Citation:

A Guide to Judicial Legitimacy and Effectiveness: The Strategic Court of Justice Barak, ICON-S-IL Blog, February 11, 2022 [Hebrew].