For Barak, the judicial function has two central elements additional to deciding the dispute in the case before the court. First, the judge is a partner with the legislature in creating law. As such, judges are constrained in that they must seek to maintain the coherence of the legal system as a whole. Secondly, the judge must protect democracy, both formal (legislative supremacy and fair elections) and substantive, that is the values that underpin our constitution: the separation of powers, the rule of law, the independence of the judiciary, the protection of human rights, and basic moral principles such as tolerance, good faith, procedural fairness and reasonableness.

The judge’s task is a difficult one. Judges do not apply their personal principles, but must seek objectively to identify the values inherent in the legal system. As the ancient Jewish set of teachings, the Talmud, states to judges: “Do you imagine that I offer you rulership? It is servitude that I give you.” In complex cases, these values will conflict: liberty for one person may endanger the safety of another, or indeed the security of the State.

To those who complain that the unelected judge has no business performing these functions, Barak answers that it is precisely because the judges are not politicians that they are the right people to undertake the constitutional role of ensuring that the legislature and the executive comply with legal requirements. The judge is made accountable by the obligation to give reasons for the decision, and by the power of the legislature to amend the law if the judge’s ruling is unconvincing.

Barak points out that these are not principles valid only for the lecture theatre and the tutorial. They have been developed and applied in the real world of adjudication, and in a court that, regrettably, has all too much experience of resolving the legal problems posed by terrorism. The record of the Israeli Supreme Court under Barak is a remarkable statement of legal values in the most difficult circumstances. There are few countries in the world that can boast an independent judiciary. There are none apart from Israel in the Middle East. What other court in the world maintains the rule of law in the face of a constant and potent threat to the survival of the state from enemies who dispute its right to exist and seek to destroy it? Under Barak, the Israel Supreme Court has imposed high standards on the other organs of government: it ruled that the torture of terrorists was illegal even if used to discover the location of a ticking bomb; it ordered the Prime Minister to dismiss Cabinet colleagues indicted for alleged criminal offences; and it required the Government to relocate the West Bank fence to reduce damage to Palestinian interests.

Barak’s judicial philosophy has problematic areas. Judges “must express what is regarded as moral and just by the society in which they operate, even if it is not moral and just in their subjective view”, and they should act within the social consensus of their society. But what are the limits to the obligation to apply core values of the community that the judge considers to be morally objectionable? Barak approves of the decision of the United States Supreme Court in Brown v Board of Education (1954) to outlaw race discrimination, even if that was in advance of the social consensus, but is vague as to how this fits in with his principles.

The judgments of the Israeli Supreme Court under Barak have much to teach lawyers and judges in this country. As Barak notes, “it is hard to be a judge”, especially when society is under threat from people who wish to blow it, and themselves, up for ideological reasons. Criticism of judges “frequently descends to the level of personal attacks and threats of violence”. Barak points out that tension between the courts and other branches of government is natural and it is desirable. If the courts’ decisions were always welcomed by the executive, judges would not be doing their job properly. Barak’s thesis is very simple, but of fundamental importance: however difficult the circumstances, “terrorism does not justify the neglect of accepted legal norms. That is how we distinguish ourselves from the terrorists themselves”.

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

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