Author Argues Aharon Barak's Judicial Paradigm Has Collapsed
A recent analysis argues that the legal paradigm established by former Supreme Court President Aharon Barak, which concentrated power in the hands of judges and legal professionals at the expense of elected officials, has collapsed. The author contends that the question is no longer whether this "juristocracy" will fall, but what system will replace it, urging for a structured and constitutional preparation to prevent catastrophic institutional conflict.
Barak's tenure, beginning in 1978, saw two major shifts. In the 1980s, he significantly transferred power from the Knesset and government to the judiciary by removing standing requirements, declaring all matters justiciable, and broadening the reasonableness standard to allow intervention beyond mere absurdity. This was used to block appointments that might challenge his established power structure. In 1995, Barak transformed the Basic Law: Human Dignity and Liberty into a full constitutional document, disregarding its original intent and incorporating rights the Knesset had not intended to protect, thereby asserting that basic laws were now part of the constitution, contrary to earlier legal precedent.
The article criticizes Barak for thwarting attempts by subsequent justices, like Yaakov Grunis and Danziger, to moderate the court's activism. It also claims Barak blocked the appointment of Professor Ruth Gabizon, who opposed judicial activism, in favor of a political activist from the Labor party, Hanan Melzer.
Following Barak's retirement, the Supreme Court, under justices like Edna Erez and Asher Grunis, allegedly expanded its power further, even invalidating basic laws. The author describes the court as acting as a clear party in political struggles, manipulating case assignments for political outcomes, threatening civil servants, blocking appointments, and inventing constitutional law without basis in accepted legal theory or Western democratic practice. This era is characterized as "post-law," where the attorney general's interpretation dictates the law.
The author draws parallels to historical collapses described by Yonatan Adiri, where paradigms shift due to an inability to recognize impending change. Barak's shift transformed Israel from a parliamentary democracy to a constitutional one, and subsequent justices, according to the analysis, have turned it into a "tyrannical juristocracy." This situation is deemed unsustainable, with the public unlikely to accept such "oppression" long-term. The piece concludes by calling for a constitutional reform, including a basic law on legislation to safeguard basic laws and the establishment of an elected constitutional court, to restore sovereign power to the people and ensure fair protection for all social groups.
