You Shall Appoint for Yourself Judges
by Daniel Friedmann, translated by Haim Watzman
Oxford University Press, 416 pp., $100
Towering over Israeli law of the past several decades is the singular figure of Aharon Barak. A former dean of the law faculty of the Hebrew University, he was appointed attorney general in 1975, became a justice on the Supreme Court three years later, and headed the court from 1995 to 2006. Combining the raw intellectual firepower of Oliver Wendell Holmes with the activism of Earl Warren, Barak remade the court, and to some extent the country, with his bold assertions of judicial power. His sheer range and depth led Richard Posner, the prolific former judge on the United States Court of Appeals for the Seventh Circuit (and a trenchant critic of Barak’s approach), to suggest that Barak would deserve a Nobel Prize for law, if such a thing existed. It is not much of an exaggeration to say that legal and judicial politics in Israel since his retirement have pivoted on competing views of Barak and his court: Was he a robust defender of human rights or a runaway judge who imposed his political preferences on a nation? In The Purse and the Sword, one of Barak’s chief intellectual antagonists, former minister of justice Daniel Friedmann, lays out the case against him.
As is well known, Israel’s founding fathers could not agree on a constitutional text, in large part because of disputes between religious leaders and parties and the secular political establishment. Instead, the country has gradually adopted a series of “Basic Laws” (chukei ha-yesod) to define the fundamental institutions of the state. As a result of this piecemeal approach, the country has no formal constitution to interpret, and in this Israel is much like its former overseer, the United Kingdom. As in the UK, Israeli legislators could do pretty much what they liked, free of the fundamental constraints that might be found in a formal bill of rights or a written constitution. To be sure, there were common law traditions and principles of “natural justice” that might constrain policymakers, particularly in the administrative realm. But these were minimal, and judges interpreted them narrowly.