Book Review: An Activists Disappointing Evasions: The Judge in a Democracy, by Aharon Barak

Full Article

Herzberg, Anne. “An Activist’s Disappointing Evasions: The Judge in a Democracy: Book Reviewed by Anne Herzberg.” Jewish Political Studies Review 22 (Fall 2010): 3-4.

[Abstract]

“What is ultimately disappointing about this book, however, is the limited discussion regarding the most controversial aspects of his tenure on the court – and which have cemented Barak’s reputation as one of the world’s leading judicial activists – namely, the implementation of near-limitless judicial review and the elimination of standing requirements. An explanation of how these approaches are consistent with Barak’s views on balancing the rights of the individual with the rights of society is missing. Similarly, there is little substantive treatment as to how such expansive judicial power enhances “defensive democracy,” particularly for those democratic societies confronted by ongoing terrorism and asymmetrical warfare.  Indeed, it could be argued that transforming the Israeli High Court into a court of first instance open to all, albeit for the well-meaning goal of fostering individual human rights, may actually and ironically contribute to the undermining of Israeli justice and the weakening of human rights and democracy.” “Why should individuals or organizations that may have no real stake in a case and do not have to live with the consequences of a judicial decision be allowed unlimited access to the courts? In Israel, several organizations that are “repeat customers” at the High Court and are often the most involved in trying to litigate military operations, are also the very same groups that routinely defame the court and the Israeli justice system internationally, particularly in UN frameworks.  Some of these organizations have litigated the same case many times in Israel, only to turn to foreign courts in hopes of obtaining a favorable outcome, because they do not respect Israeli rule of law. And in several instances, these cases have only been kept out of the courts of Canada, the United States, England, or Spain because the judiciary in those countries were willing to apply justiciability doctrines.”