* The Hebrew version of the book was published in 2004: Aharon Barak, Shofet Be-Hevra Democratit (A Judge in a Democratic Society). The references below are to the English version.

¹ Barak, Aharon, The Judge in Democratic Society xvi (2006)Google Scholar.

² Barak, Aharon, Foreword: A Judge on Judging The Role of a Supreme Court in a Democracy, Harv. L. Rev. 116 (2002)Google Scholar. Chapter 10 is based on Barak, Aharon, Response to The Judge as Comparatist Comparison in Public Law, 80 Tul. L. Rev. 195 (2005)Google Scholar, and chapter 16 is based on Barak, Aharon, The Role of a Supreme Court in a Democracy and the Fight against Terrorism, 58 U. Miam L. Rev. 125 (2003)Google Scholar.

³ Some view Justice Barak's eclecticism and pluralism as a rhetorical device to enhance judicial empowerment. Thus, for example, in a paper which focuses on Justice Barak's rhetoric, Roy Amit states:

The eclecticism, which is elevated to an actual world view, brings the desire to express a non-committed position to an extreme. The [eclectic's] selection is from within the entirety of options, so that only the “worthy” or “appropriate” elements of each is selected. The precise recipe for an eclectic decision m not provided; the options remain as hidden variables that are modified according to circumstances, and in accordance with the balance that is suggested.…

Amit also maintains that Barak's eclecticism is misleading and biased. See Amit, Roy, The Positions of (the) Canon: The Barakian Text as a Canon in Formation, 21 Iyunei Mishpat 21(1) 81, 102 (1998) [in Hebrew]Google Scholar.

⁴ Justice Barak is a most prolific writer. In addition to writing a large number of landmark cases, Justice Barak has written many books and articles in which he expresses his judicial doctrines. These include, among others, five volumes of his monumental book [in Hebrew] Interpretation in Law (see Barak, Aharon, Purposive Interpretation in Law (Bashi, Sari trans., 2005))CrossRefGoogle Scholar as well as his book on judicial discretion (see Barak, Aharon, Judicial Discretion (Kaufmann, Yadin trans., 1989))CrossRefGoogle Scholar. Several times, commentators have pointed out what the rhetorical role of Barak's repetitiveness verbatim may be. Roy Amit maintains that Barak's tendency to repeat himself: “Creates the déjà vu effect of familiarity. The many repetitions, with only slight modifications, entrench the usage of terminology, and cause the blurring of the authoritative foundations for a particular arrangement.” See Amit, id. at 97-98.

⁵ Every law student in Israel is well aware of the intensity of several of the Justices' differences with the positions of Justice Barak. I will not be able to do justice, in the confines of this review, to the fierce disputes between Justice Barak and Justices Elon and Englard. As a general rule, the latter Justices are quite skeptical of judicial power and took issue with the court's judicial intervention in decisions of the other branches of government. Thus, for example, in HCJ 620/85 Mian v. Speaker of Knesset [1986] IsrSC 41(4) 169, 252, Justice Elon held:

With all due respect to this court's tremendous efforts to preserve objectivity and expertise in the matter before us, how exactly, and in accordance with what, will the court be guided in exercising the proposed test of the jurist's “sense of expertise,” a test bereft of any objective content? It is indeed true that there is no alternative to resorting to this ‘sense’ in the laws of Obligations or Torts, and even in Administrative Law. But it is far more difficult, and very much undesirable, to employ this test alone with no complementary test in any of the questions which arise in the case at hand, in which, political beliefs, social problems, and competing schools of Jurisprudence are all intertwined. I believe that it would not be rash of me to say that these questions are predominantly social and political, and that their legal aspects derive, and are primarily driven by these other aspects ….

In HCJ 1635/90 Zarzevsky v. Prime Minister Ytzhak Shamir [1991] IsrSC 45(1) 749, 771, that dealt with the legality of coalition agreements; Justice Elon held (in dissent):

And here one asks oneself: How can a court possibly determine whether the weight given by the authorities to the relevant considerations, and the balance that was struck between them, were in fact inappropriate or unreasonable? Does this court have the requisite knowledge or the tools necessary to measure the reasonableness or unreasonableness of this balance? What purpose and what benefit is there in the fact that we name this review a legal review of the conduct of a war investigation? Does the name and title have any consequence? Who are we, and what are we? What is our strength and our might, as judges, that we should decide in such a clearly political and military matter? These are issues that in their very nature and essence ought to be decided by other, more competent bodies, such as a State Investigation Commission, which would consist of, in addition to a judge, experts with an understanding of the issue. But we, as judges, even as wise judges, what understanding have we about the intricacies of war and diplomacy? Furthermore, I fear that from observing all those diplomatic, political, or military cases in which my colleague adjudicates by employing the notion of reasonableness, and thus rules that the act was reasonable, the exact opposite conclusion, that the government's action was unreasonable, could have been reached as well. If such is the case, the question arises once again, what is the reasonable criterion to employ in the principle of reasonableness in cases such as these? It is just as I said In my opinion, it is totally unreasonable to reasonably expect that the court will review the reasonableness of topics such as these ….

In CA 6024/97 Shavit v. Hevra Kadisha [1999] IsrSC 53(3) 600, 646, Justice Englard took issue with Justice Barak's use of the test of “reasonableness” and of the “balancing formula,” and held that:

I question if it is the role of the Court to establish the “legitimate” boundaries of the sensibilities of believers in general, and of the religiously observant public in particular. In addition, the definition of the boundaries of “reasonable” sensitivity is based largely on subjective views, as illustrated by the differences of opinions among the judges themselves.

Similarly, in the same decision (id. at 638), he held that:

in the past, this court has decided these sorts of disputes by ‘balancing’ the basic principles, in the attempt to apply a test of reason to gauge the respective sensibilities of the litigants. I believe that where beliefs and opinions are concerned, there is no possibility of measuring sensibilities objectively. We face an ideological clash focused on symbols, and their importance to different people cannot be measured by any external yardstick of reason. Any ruling on the logical weight of a symbol will certainly be an expression of subjective values. Furthermore, the standing of a certain symbol in society is not fixed for any length of time.

⁶ See, e.g., Gans, Chaim, Judicial Discretion for Aharon Barak, Mishpatim. 18, 509 (1989) [in Hebrew]Google Scholar.

⁷ Barak, supra note 1, at xvii-xviii.

⁸ Id. at xiii.

⁹ Id. at xiii, n. 15.

¹⁰ The question whether judges do indeed have discretion is a central one in Jurisprudence. The modern dispute on this question is between H.L.A. Hart, in his classic work, The Concept of Law (1961), who believes in Judicial Discretion, and Ronald Dworkin, in his book Taking Rights Seriously (1977), who attempts to establish the claim that there is no such discretion.

¹¹ Barak, supra note 1, at 124-125.

¹² Id. at 307-308.

¹³ Id. at 104.

¹⁴ Id. at 315.

¹⁵ For a discussion of objectivity in Justice Barak's view, see Issachar (Issi) Rosen-Zvi, , Are Judges Human? Establishing the Image of the Judge in View of the Rules of Disqualification, 8 Mishpat Ve-Memshal 6, 49, 63–66 (1995) [in Hebrew]Google Scholar.

¹⁶ Barak, supra note 1, at 102.

¹⁷ Id. at 104.

¹⁸ Id. at 105.

¹⁹ See Fiss, Owen, The Law as It Could Be 149–171 (2003)Google Scholar.

²⁰ Id. at 41.

²¹ Barak acknowledges that “[c]omplete objectivity is unattainable. The personal aspect of a judge is always present,” (see Barak, supra note 1, at 105) but argues that “[r]ejecting complete objectivity does not require us to embrace complete subjectivity. There is a third way… It is enough for a judge to make an honest attempt to objectify his exercise of discretion, recognizing that it cannot be done in every circumstances” (id.).

²² Rosen-Zvi, supra note 15, examines the role which the myth of objectivity plays in determining the rules of judicial disqualification. The court's unwillingness to disqualify judges, even in extreme cases, such as those where the judges themselves request the disqualification, is meant to strengthen the perception of the judge as an objective professional.

²³ HCJ 2491/02 Ben Ari v. The Court's Adminstrator [August 1, 2002] (not published).

²⁴ Id.

²⁵ David, Rabbi Joseph, Petah Beit David, Case Law sec. 2 (5476 (1736))Google Scholar.

²⁶ HCJ 7367/97 The Movement for Quality Government v. The Attorney General [1998] IsrSC 52(4) 547. The passage from Mica is taken from the King James Bible; the second quote (“favor and good understanding…”) is from Proverbs 3:4.

²⁷ Barak, supra note 1, at 104.

²⁸ By this I do not mean to say that the contrary, nihilistic position, that views the judicial process as part of the political power struggles, is not dangerous as well. On these dangers, see Fiss, supra note 19.

²⁹ See Gans, supra note 6, at 516-522.

³⁰ Barak, supra note 1, at 102-103.

³¹ Id. at 102.

³² See Gans, supra note 6, at 521-522.

³³ HCJ 721/94 El Al Israel Airlines Ltd v. Danilowitz [1994] IsrSC 48(5) 749, 781. The translation of this excerpt is taken from the website of the Israeli Supreme Court, available at http://elyon1.court.gov.il/files_eng/94/210/007/z01/94007210.z01.htm (last visited August 18, 2006).

³⁴ For a more lengthy critique along these lines, see Harel, Alon, Gay Rights in Israel—A New Era, Int'l. J. Discrim. L. 1, 261, 266 (1996)Google Scholar.

³⁵ Barak, supra note 1, at 108.

³⁶ Id. at 108.

³⁷ Conceivably, we could say that the appropriate value to select is the one which Israeli society itself would have selected, were it called upon to decide the case at hand. Thus, for example, in the present example, Justice Dorner should have asked whether Israeli society views discrimination of homosexuals a sufficient reason for state intervention in a labor contract. Such a criterion, however, is not truly effective, since social values are typically abstract and society does not have a clearly defined view regarding such values' conflicts in cases of a concrete clash. Due to the abundance of social values relevant to deciding a case, the turn to social values does not guarantee judicial objectivity.

³⁸ Such, for example, is the view of Ronald Dworkin, one of the greatest legal philosophers, who claims that judicial objectivity relies on the successful integration of legal and social conventions with moral ideals. See Dworkin, Ronald, Law's Empire (1986)Google Scholar. Owen Fiss believes that judicial objectivity is a function of procedural rules that are internal to the legal process. See Fiss, supra note 19.

³⁹ On the rhetorical role of balancing in Justice Barak's jurisprudence, see Amit, supra note 3, at 103-104. Amit maintains that the results of the balance are predetermined by the selection of the conflicting considerations themselves.

⁴⁰ Barak, supra note 1, at 166.

⁴¹ Id. at 173.

⁴² Id.

⁴³ Id.

⁴⁴ Id.; see also Coffin, Frank M., Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U. L. Rev. 16, 23 (1988)Google Scholar.

⁴⁵ Barak, supra note 1, at 165.

⁴⁶ Several of Justice Barak's colleagues at the Supreme Court, as well as some academic jurists, believe otherwise. They maintain that balancing, inherently depends on assigning weight to values, is a recipe for an arbitrary decision that is nothing other than a pseudonym for the subjective whims of the judge. See, e.g., the words of Justice Englard in Shavit v. Hevra Kadisha, supra note 5.

⁴⁷ Barak, supra note 1, at 164.

⁴⁸ The distinction between these two arguments is similar to the familiar distinction drawn by utilitarians between “criteria of lightness” and “decision-making procedures.” Many utilitarians maintain that while the determinative criterion regarding the rightness of an action is the degree to which it promotes utility, actually acting on utilitarian considerations is prohibited, since decisions that are based on utilitarian considerations do not maximize utility. For a discussion on this distinction, see http://plato.stanford.edu/entries/consequentialismsection 3 (last visited October 18, 2006).

⁴⁹ Porat, Iddo, The Dual Model of Balancing, 27 Cardozo L. Rev. 1393 (2006)Google Scholar.

⁵⁰ See Raz, Joseph, Practical Reason and Norms (1999)CrossRefGoogle Scholar.

⁵¹ One should not confuse the concept of “vertical balancing,” which Justice Barak develops (see, e.g., Barak, supra note 1, at 171-172) with the concept of an exclusionary reason. Justice Barak defines “vertical balancing” as follows: “The vertical balancing formula determines the conditions under which certain fundamental principles take precedence over others.” Id.). The very recognition of a conflict of values negates the possibility that we are dealing with an exclusionary reason, since the exclusionary reason does not conflict with the reasons that it excludes, but it is rather the reason that justifies removing first-order reasons from the calculation. The vertical balance is none other than a balance between first-order reasons, where one of the conflicting reasons is of greater relative weight than the reasons in conflict with it.

⁵² Such, for example, he maintains that in cases in which restrictions to freedom of speech are based on the content of that speech, the right to freedom of speech acts as a second-order reason—a reason that obligates the government to refrain from regulating that speech on the basis of first-order reasons, and especially to refrain from regulation based on the government's disagreement with the content of that speech.

⁵³ HCJ 5100/94 Public Committee v. The State of Israel [1999] isrSC 53(4) 817, 835-836. This excerpt is taken from the official court translation, available at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.htm (last visited October 18, 2006).

⁵⁴ HCJ 4112/99 Adalah v. Municipality of Tel Aviv-Jaffa [2002] IsrSC 56(5) 393, 412.