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

14 LAW & ETHICS OF HUMAN RIGHTS 227(2020)

46 Pages Posted: 13 Dec 2018 Last revised: 30 Dec 2020

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: December 5, 2018

Abstract

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.

Keywords: constitutional revolution, constitutional evolution, landmark cases, strategic courts, democratic backsliding, supra-constitutionality, savings clauses

Suggested Citation

Weill, Rivka, The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding (December 5, 2018). 14 LAW & ETHICS OF HUMAN RIGHTS 227(2020) , Available at SSRN: https://ssrn.com/abstract=3296578 or http://dx.doi.org/10.2139/ssrn.3296578

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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