The Other Bara(c)k: Law’s First Superstar

Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the statute or rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows: ‘Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several’.”

Hon’ble Justice L. Nageswara Rao, Anurag Kumar Singh v. State of Uttarakhand, [Civil Appeal No. 8334 of 2013] decided on 05.10.2016.

Aharon Barak has been quoted several times before by the Supreme Court:

For issues in which stability is actually more important than the substance of the solution – and there are many such case – I will join the majority, without restating my dissent each time. Only when my dissenting opinion reflects an issue that is central for me – that goes to the core of my role as a judge – will I not capitulate, and will I continue to restate my dissenting opinion: truth or stability – truth is preferable.

If the interpretation of a statute is met with an immediate and hasty response from the legislature in the form of new legislation, uncertainty about the law will result, and the public will lose confidence in the legislative branch. This is not the case, however, when the change in legislation after a judicial ruling reflects a thorough and deliberate examination of the ruling and an objective expression of the will of the legislature.”

Hart and Sachs also appear to treat purpose as a subjective concept. I say appear because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

Aharon Barak was born in Kovno, Lithuania in 1936, survived the war in the ghetto there, and immigrated to Israel in 1947 with his parents. Intellectually precocious, his curriculum vitae is a spectacular array of accomplishments, which have earned him praise as “the law’s first genuine superstar.”

In 1974, at age 38, Barak was Dean of the Law Faculty at Hebrew University. Having reached the pinnacle of legal academia, Barak was appointed Attorney-General, a post he held from 1975 to 1978. In that capacity, he made his mark by boldly prosecuting senior figures including Leah Rabin, Lioness of Israel.

During the talks leading up to the Camp David Accords in September 1978, Prime Minister Menachem Begin invited Barak to join the Israeli negotiating team. When Begin resisted adding the term ‘legitimate’ to the phrase ‘rights of the Palestinian people’, it was Aharon Barak who convinced him by arguing, “Can there be any rights which are not legitimate?” In 1978, Barak was named to Israel’s Supreme Court, and became the Court’s Deputy President in 1993. When Meir Shamgar retired in 1995, Barak succeeded him as Supreme Court President.

Aitan Goelman, currently an Adjunct Professor of Law at The George Washington University Law School, who clerked for Judge Barak, compares him to two American Chief Justices: John Marshall, who established the principle of judicial review in the landmark 1803 case of Marbury v. Madison, and Earl Warren, who expanded the rights of criminal defendants. “He’s like the Israeli John Marshall and Earl Warren wrapped into one.”

Barak is John Marshall without a Constitution to expound or to ‘expand’, as Barak once revealingly misquoted a famous phrase of Marshall’s (“we must never forget it is a constitution that we are expounding”). Israel does not have a constitution. Barak’s legal philosophy begins with the belief that “the world is filled with law”. This idea, which Barak describes as his defining vision, portrays law as an all-encompassing framework of human affairs, from which no action can ever be immune: Whatever the law does not prohibit, it permits; either way, the law always has its say, on everything.

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