Four Myths of Judicial Review: A Response to Richard Posner's Criticism of Aharon Barak's Judicial Activism

Abstract:     
Richard Posner has recently reviewed, in The New Republic, Aharon Barak's book, The Judge in a Democracy. Posner criticizes Barak for both his theoretical argument and for what Posner portrays as Barak's legacy as the President of Israel's Supreme Court. Posner accuses Barak for acting as "a legal buccaneer," and describes his approach as "usurpative." Posner crowns Barak, in the very title of his review, as no less than an "Enlightened Despot." In this response I claim that Posner's critique lacks a proper understanding of the legal situation in Israel, it misrepresents Barak's activities as a judge, and fails to contend properly with Barak's doctrine which it purports to reject.

Keywords: Judicial Review, Israel, Constitutionalism

Working Paper Series