Harvard International Law Journal Online, 2007

Tulsa Law Review, 2011

47 Tulsa Law Review 437 (2012)

The concept of transnational judicial dialogue has been investigated as a general matter ever since the concept was first introduced by Anne-Marie Slaughter in the early 1990s. This paper uses Slaughter’s concept and expands it in order to assess in greater detail the impact of one particular participant in what this paper calls “transnational legal communication”: former President of the Supreme Court of Israel Aharon Barak. The purpose of the article is two-fold. It first analyzes the jurisprudential legacy of President Barak, but it also attempts to create a framework for analyzing the life work of important participants in transnational legal communication more generally.

Tulsa Law Review, 2012

See, for example, RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004) as part of the growing literature discussing the role of courts in democratic societies. 2. MEYDANI, supra note 1, at 33. 3. Id. 4. Id. at 33-34. 5. See id. at 34-42.

Judicial Activism in Common Law Supreme Courts, 2007

comparative analysis. Within the limited scope of this paper I cannot delve into this interesting debate and will limit myself with identifying two major groups of definitions of judicial activism, attempting to describe the Israeli judiciary as activist according to both grand approaches. One group of definitions can be viewed as emerging from a jurisprudential vantage point, the other from a political science or theory of the state viewpoint. The jurisprudential gateway offers a non-relational definition of judicial activism-examining to which extent courts allow themselves leeway, freedom and discretion in interpreting existing norms (constitutional and legislative and indeed common law ones) and to what degree the courts allow themselves departures from previous rulings-the degree of changes in the law the source of which are the courts. The main framework of analysis here is a theory of the law, theory of judicial discretion and interpretation. The political science gateway adopts a relational definition to judicial activism, focusing on the role of courts in shaping collective decisionmaking in society relative to the role of the other branches of governmentthe legislature and the executive, and in relation to the public opinion. In this category emphasis is given to the area of public law and to the degree in which courts scrutinize and review decisions of the other branches of government. The main framework for this kind of analysis is the theory of the state, in general, and the doctrine of separation of powers, in particular. The courts in Israel can be regarded as activist according to both grand definitions. They have become one of the country's most significant law-Electronic copy of this paper is available at: http://ssrn.com/abstract=957849 makers, as well as political establishments. Above all, the Supreme Court of Israel emerged as a dominant branch of government. It moved center-stage in the collective decision-making process in Israel, affording an unprecedented degree of intervention in the conduct of the other branches of government, and, thus, attracting ever-greater attention, but also growing criticism, from the Israeli media and public. 3 It is not surprising, therefore, that judicial activism is on the scholarly agenda in Israel for the last 35 years and on the public agenda for the last 20 years. One of the leading law journals in Israel had dedicated a whole volume to judicial activism in Israel already in 1992. 4 In recent years, the public debate around the issue was very much instigated by the rhetoric and reasoning that characterizes the Supreme Court in the era of Justice Barak (who was appointed to the Supreme Court in 1979 and retired as its President on 2006) and especially following his academic publications beginning with the book on judicial discretion, published in 1987, 5 However, I will try to show in this chapter that judicial activism can characterize the Israeli Supreme Court from the very beginning of its operation in 1949. This chapter will elaborate on judicial activism of the Israeli judiciary, and especially its Supreme Court according to both definitional approaches. Section 3 will focus on public law and mainly on the political science definition of judicial activism, while Section 4 will focus on private law vis

Chinese Journal of International Law, 2006

ABSTRACT In Mara'abe v. Prime Minister of Israel (September 2005), Israel's High Court addressed the effect which it should give to the International Court's Legal consequences of the construction of a wall in Occupied Palestinian Territory advisory opinion. This had declared the wall illegal but, while affirming that it shared the International Court of Justice's normative rulings, the High Court reiterated that it thought the wall a lawful security measure. Rather than dissect the substantive treatment of the issues involved, this article examines the structure and rhetorical techniques employed by President Barak in his leading judgment in Mara'abe . He effected a skilful practical disregard of the International Court's normative findings through an elision of argument by relying on the doctrine of res judicata —a concept that has no relevance whatsoever to advisory opinions.

Israel Affairs, 2023

These interviews are part of a major research project that is based on interviews and discussions with influential decision-makers, facilitators, mediators and negotiators who were involved in the Israel-PLO peace negotiations over the past three decades, as well as on archival research in Oslo, London, Washington and Jerusalem. Semi-structured in-depth interviews were conducted with more than 80 Israeli, Palestinian, American, Swedish, Norwegian, Egyptian, Jordanian, British and United Nations senior officials and peace negotiators. The interviews identify challenges and obstacles on the road to peace and suggest ways for moving forward. Prior to the interviews, interviewees signed consent forms. The interviews are audiotaped, transcribed and the text was sent to interviewees for authorization. The interviews with former Israeli PM (1999-2001) Ehud Barak were held in three separate virtual meetings: on 25 May, 21 June, and 11 July 2022.

Israel Affairs, 2023

These interviews are part of a major research project that is based on interviews and discussions with influential decision-makers, facilitators, mediators and negotiators who were involved in the Israel-PLO peace negotiations over the past three decades, as well as on archival research in Oslo, London, Washington and Jerusalem. Semi-structured in-depth interviews were conducted with more than 80 Israeli, Palestinian, American, Swedish, Norwegian, Egyptian, Jordanian, British and United Nations senior officials and peace negotiators. The interviews identify challenges and obstacles on the road to peace and suggest ways for moving forward. Prior to the interviews, interviewees signed consent forms. The interviews are audiotaped, transcribed and the text was sent to interviewees for authorization. The interviews with former Israeli PM (1999-2001) Ehud Barak were held in three separate virtual meetings: on 25 May, 21 June, and 11 July 2022.

In 2007-2008 then Minister of Justice, Daniel Friedman (Kadima), waged a campaign to curb the power gained by Israel's Supreme Court (SC) since the 1980s. On the first of April 2009, Friedman congratulated his successor, Yaakov Ne'eman, one of Israel's leading private lawyers, on his appointment, saying he was sure that Ne'eman "will work to advance matters of judicial importance." 1 Friedman was not joking: he knew very well that Ne'eman, like him, wished to carry out reforms in the judicial system in order to diminish its power. Ne'eman-who has no official affiliation with any political party but was appointed on the quota of Yisrael Beitenu, Yvette Lieberman's extreme right-wing party-may turn out to be a greater reformer than Friedman. His appointment signaled that Friedman's campaign had not been the whim of one person, but rather the beginning of a new era in the relationships between the executive and judicial branches. In this essay, we analyze the social-historical context of this offensive against the judiciary, which enjoys the support of a significant cross-section of Israeli society and its political class. We argue that while this campaign constitutes a reaction against the "rights revolution" and the "constitutional revolution" that had taken place in the 1980s and 90s, it does not mark a revolutionary change in the relations between the political and economic elites, on one side, and the SC on the other. These relations had been showing signs of tension already since the outbreak of the first Intifada in 1988, but have deteriorated significantly since 2000 due to changes in both the security sphere-the outbreak of the second Intifada and 9/11-and in the political economy of Israeli society-the progression of privatization, and of neo-liberal economic policy in general, that has resulted in much greater concentration of wealth and enhanced the symbiotic relations between government and big capital. On the most general level, the conflict can be conceptualized as one between two strands of liberalism: a J.S. Mill-inspired strand, espoused by the SC, whose utilitarianism is tempered by universal values and concern for minority rights, and a strict utilitarian strand, represented by Friedman, that believes in majority rule as the best and only way of discovering the greatest good for the greatest number. Similar conflicts exist in the political and legal cultures of other capitalist societies as well, but the Israeli case is particularly poignant due to the country's peculiar situation as a deeply-divided, highly developed capitalist society, engaged in a protracted frontier-type struggle with the Palestinians. At issue in the current phase of the conflict is a clash between the value-activism of the SC, a legacy of former Chief Justice (CJ) Aharon Barak, manifested, inter alia, in concern for the rights of the Palestinians, both citizens and non-citizens, and in a firm stand against political corruption, on one side, and Friedman's and Ne'eman's legal positivism, the executive's neo-conservative policy towards the Palestinians, and the business-government symbiosis, on the other. The conflict can also be conceptualized in terms of the famed dispute between Lon L. Fuller and H.L.A. Hart on the nature of law. 2 On one side stands Barak who believes, with Fuller, that law and morality cannot and should not be separated. On the other stand Friedman and Ne'eman who, like Bentham and Austin, distinguish law as it is from law as it ought to be. It is still too early to predict how the conflict will be resolved, but we