The Strategic Common Law Court of Aharon Barak and its Aftermath

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Article's full name: The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both

phenomena and understand the relationship between them. Israel is an important

case study for both agendas. This Article analyzes the jurisprudence of Aharon

Barak, one of the greatest jurists of our time with a worldwide reputation for

revolutionizing both Israeli constitutional law and comparative constitutional law.

It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation.

Barak was a common law judge and ultimately treated parliamentary sovereignty

as a doctrine arising from common law and constrained by common law, though

he never quite put it in these terms. The Article concludes with explanations for the

political backlash experienced by the current Israeli Supreme Court that some have

characterized as democratic backsliding. It argues that the Court contributes to the

development of law as part of a dialog and interaction between the different

branches of government. As the Court operates within these dynamics, it must

understand and take into account the institutional, political, and social environments

in which it operates to preserve legitimacy and achieve efficacy. Barak was a

strategic player that laid foundations for an expansive judicial power, but his Court

was very prudent in utilizing that power. His successors may have contributed

unintentionally to the backlash against the Court by following Barak’s substantive

jurisprudence, but not necessarily his prudent tactics and strategy.

Suggested citation:

The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding, 14 Law and Ethics of Human Rights 227, 227-272 (2020)