Aharon Barak – a world-renowned legal scholar, a fearless Attorney General who fought public corruption, and a groundbreaking Supreme Court justice – is one of the most influential figures in Israeli legal history. Yet today, his legacy lies at the center of a deep public controversy that extends far beyond technical debates over judicial interpretation or the scope of judicial review. Internationally, Barak is widely regarded as one of the leading jurists of his generation. In Israel, however, his name has become a lightning rod in a broader political and social struggle over the country’s identity.

At stake is not simply his judicial philosophy, but the future of Israeli democracy itself: Will it continue to develop as a substantive democracy committed to equality, human rights, and limits on government power, or will it evolve into a purely formal system defined by unrestrained majority rule?

To understand Barak’s contribution to Israeli constitutional law, one must look beyond his rulings to his biography. As a Holocaust survivor who witnessed a reality in which law ceased to protect the individual and became an instrument of totalitarian rule, Barak developed a lasting awareness of how fragile democratic systems can be. This experience did not remain a personal memory; it shaped his lifelong effort to strengthen Israel’s democratic institutions and establish meaningful checks on governmental power. Above all, he sought to protect human rights. For him, human dignity was not an abstract concept but a historical lesson: a society that fails to anchor individual liberty as a constitutional principle risks descending into tyranny – even when acting with majority support.

The phrase most associated with Barak is ‘everything is justiciable’. For years, critics have used it to argue that he sought to subject all aspects of life to judicial control. But this is a caricature. Barak never claimed that courts should intrude into private life or replace political decision-making. His argument was principled: while all human action may fall within the realm of legal norms, courts often refrain from intervention. He distinguished between normative justiciability and institutional justiciability – meaning that even where a legal norm exists, courts may decline to rule out of respect for institutional limits or political discretion. Being bound by legal norms is not the same as judicial overreach.

A central pillar of Barak’s legacy is what has come to be known as Israel’s ‘constitutional revolution’, a term coined by Dan Meridor. In 1992, the Knesset enacted Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, granting certain rights a special normative status above ordinary legislation. In the landmark United Mizrahi Bank decision, the Supreme Court recognized these Basic Laws as forming a constitution in the making and affirmed its authority to review legislation that contradicts them. This was not a judicial power grab, but the implementation of a constitutional hierarchy created by the legislature itself. Barak’s role lay in interpreting that hierarchy and insisting that democracy entails not only majority rule, but also the protection of values that constrain it.

His development of judicial review standards – including reasonableness, proportionality, and good faith – provided a framework for administrative discretion rather than a substitute for it. In a system lacking a fully entrenched constitution or a rigid separation of powers, these tools served as essential safeguards. The knowledge that government decisions are subject to normative scrutiny influences how they are made, strengthening the integrity of public administration.

Barak’s approach was particularly controversial in matters of national security. Critics argued that judicial review of military decisions could undermine operational effectiveness. But for Barak, review in such cases was never about managing the battlefield or second-guessing political and military leadership. Its purpose was to ensure that the use of force remained within legal bounds. Even in times of emergency, he argued, the state does not operate in a normative vacuum: Israeli law, international humanitarian law, and fundamental human rights principles continue to apply, albeit in adapted form.

In rulings on targeted killings and the route of the separation barrier, the Court did not attempt to dictate security strategy. Rather, it examined whether the measures taken met standards of necessity and proportionality. In doing so, Barak affirmed that the rule of law is not suspended in times of crisis – it is tested precisely in such moments.

Ultimately, much of the criticism directed at Barak stems from resistance to liberal democracy itself, particularly the principle of equality: between Jews and Arabs, secular and religious citizens, men and women. The rhetoric used by some of his critics – rejecting the legitimacy of judicial review or the supremacy of secular law – often reveals deeper objections to these egalitarian commitments.

Barak’s legacy is not merely a body of case law, but a coherent vision of constitutional democracy. The controversy surrounding him is not about the man, but about Israel’s future: whether it will remain a substantive democracy committed to rights and institutional limits, or become a system that equates sovereignty with unchecked power. The historical judgment of Barak’s life’s work will not be decided by political agitators, but by the choice Israeli society ultimately makes about what kind of democracy it wants to be.

© The Times of Israel (Blogs)