The other Barak speaks out

Aharon Barak, center, president of the Supreme Court of Israel, received an honorary degree from the University of Hartford, Oct. 14, 2001.A Talmudic teaching regarding judges says, “You think that I am granting you power? It is slavery that I …

Aharon Barak, center, president of the Supreme Court of Israel, received an honorary degree from the University of Hartford, Oct. 14, 2001.A Talmudic teaching regarding judges says, “You think that I am granting you power? It is slavery that I am imposing upon you,” said Aharon Barak, president of the Israeli Supreme Court.

“But it is an odd sort of slavery, where the purpose is to serve liberty, dignity and justice. Liberty to the spirit of the human being; dignity and equality to everyone; justice to the individual and to the community,” Barak said. “This is the promise which accompanies me to the courtroom daily. As I sit at trial, I stand on trial.”

Barak, no relation to Ehud Barak, the former prime minister, has served on the Israeli Supreme Court for 23 years and as its president for the past six years.

Barak had humble beginnings. He was smuggled out of Lithuania in a satchel as a child. “When I was only three years old, World War II broke out. In 1941 – when I was five years of age – my family and I were placed in a ghetto. We were in hell. Out of 30,000 Jews in the ghetto, only several hundred were saved. I am one of the very few survivors. Almost all my family was killed,” said Barak, who was saved by the efforts of a Lithuanian family.

“What is my lesson from this experience? It is not hatred; it is not hopelessness about the nature of men. Quite the opposite: My lesson is a belief in the human spirit; my lesson is the centrality of the human being; my lesson is equality among all of us; my lesson is that we are all made in the image of God. Protecting dignity and quality and doing justice is my North Star, which guides me in my difficult moments.”

Barak, who sees his role as a judge as a “mission,” spoke about the role of a Supreme Court in a democracy. “The role of the judiciary is to adjudicate disputes according to law,” he said. “It involves three functions: fact determination, law application and law determination.

“The third function – law determination – does not involve, in most cases, any creation. The law is known and determines. The court merely declares what the law is,” he said. “However, there are hard cases. In such cases, the law is uncertain. There is more than one meaning given to the legal problem. In such cases, law declaration also involves law creation … The public has the right to know that we make law and how we do it.

“A judge is not allowed to flip a coin, although it achieves full objectivity,” he said.

In creating law, Barak said “we should give expression to the basic values of our legal system. Those values reflect the ethical values of morality and justice; they include social values relating to public order, judicial independence, separation of powers, public peace and security; they are based on concepts of reasonableness, tolerance, proportionality, good faith and honesty. At the center of these fundamental values stand human rights – political, social and economic.” Respecting those values is not always easy, especially in difficult times.

“When terror swept the country and when bombs exploded in the street, the mood was ‘get the terrorists, interrogate them by any means, and find out where the bombs are.’ But the Israeli Supreme Court said ‘no,’” Barak said. “Dignity is a human right for everyone, including the terrorist. A state cannot use force against anyone – not even the terrorist that is planting a bomb in the supermarket. Those are our basic values as a democracy.”

Speaking of what he called “the main difficulty in judicial lawmaking,” Barak said that in “hard cases, a judge is faced with a conflict between basic values. Dignity of the individual conflicts with state security and free speech conflicts with public order of privacy and reputation. Freedom of religion conflicts with freedom from religion. The dignity of the fetus conflicts with the dignity of the mother.” A judge must assign weight to each value and balance the conflicting values. A judge’s ability to weigh and balance reflects “personal history, life experience and totality as an individual and as a judge.”

“As a judge, I am conscious of what is taking place in my country,” Barak said. “It is my duty to study my country’s problems, to read its literature, to listen to its music. A judge is a creation of his time. He moves with history … Law hasn’t started with us. It will not end with us.”