The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding
LAW & ETHICS OF HUMAN RIGHTS (forthcoming, 2020)
38 Pages Posted: 13 Dec 2018 Last revised: 13 Jan 2020
Date Written: December 5, 2018
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 to 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 dialogue 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 his prudent tactics and strategy.
Keywords: constitutional revolution, constitutional evolution, strategic courts, democratic backsliding, standing, justiciability, proportionality, stare decisis, Israeli Marbury v. Madison decision, commonlaw constitutionalism, supra-constitutionalism, unamendability, misuse of constituent power
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