Both in Israel and abroad, the election of Ehud Barak last May was widely greeted not just as a political victory, with what seemed like obvious implications for the negotiations between Israelis and Arabs, but as an important turn in the country’s internal and increasingly bitter culture war. In the eyes of many Israelis, and of foreign observers like Thomas Friedman and Anthony Lewis of the New York Times, the contest between the Labor party’s Barak and Benjamin Netanyahu, the incumbent prime minister whose conservative coalition depended on the support of various religious parties, amounted to nothing less than a referendum on Israel’s identity as a modern state. Netanyahu, it was said, was the candidate of the haredim, or ultra-Orthodox, whose dangerous theocratic impulses he had shown himself all too willing to accommodate; Barak, by contrast, was the candidate of secularism, democracy, humanism, and—in a phrase that surfaced repeatedly during the campaign—“the rule of law.”

What “the rule of law” in Israel signifies to those who invoke it is, essentially, respect for Israel’s Supreme Court, and, more specifically, for its rulings on matters concerning the character of the Jewish state. (This, quite apart from its controversial rulings on other matters, including most recently its banning of certain interrogative methods used by Israel’s security forces.) Indeed, led by its dynamic Chief Justice, Aharon Barak—no relation to the new prime minister—the court has in the past years overturned a number of the legal and political privileges long enjoyed by the country’s ultra-Orthodox minority. But the haredim have not taken this lying down. Prominent rabbis have not shrunk from declaring the justices “wanton evildoers” and the Chief Justice an “enemy of Judaism,” and this past February a rally protesting the Supreme Court’s rulings drew some 250,000 ultra-Orthodox Israelis.

To their opponents, the aim of those protesters was clear: to intimidate the one institution in Israeli government that stands above politics, impartially defending the country’s deepest principles. As the liberal newspaper Ha’aretz put it—echoing a sentiment voiced by everyone from the novelist Amos Oz to Labor candidate Barak himself—by venting their anger and their frustration with the Supreme Court, the haredim were attempting “to shatter the very foundation upon which Israeli democracy stands.”

But things are not so simple.

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The Supreme Court of Israel operates in a legal environment very distinct from that of its American counterpart. To start with one essential difference: Israel has no written constitution. Though its Declaration of Independence in 1948 promised such a comprehensive charter, by 1950 the effort to fashion it had come to a standstill. This was owing in part to the objections of religious parties, some of whom disliked the idea of a second, “higher” law, but in greater part to the reluctance of Israel’s first prime minister, David Ben-Gurion, to permit constraints on his then-dominant Mapai party. To fill the void, the assembly that had been elected to design a constitution declared itself the first parliament, or Knesset, and proceeded to pass a series of “Basic Laws,” thereby piecing together the various branches of Israeli government.

Under this scheme, elements of which are a legacy of the British Mandate period, the newly created Supreme Court was to have two roles. In addition to being the nation’s highest appellate body for civil and criminal matters, it would also function as a “high court of justice,” hearing any case in which a citizen wished to challenge an action by the state. In this latter capacity, the Supreme Court could grant relief to individuals by setting aside a government regulation or executive order; but it could not overturn a law duly enacted by the Knesset. As in Britain itself, the Israeli parliament was “sovereign,” and its actions did not have to comply with a formally entrenched bill of rights.

Lacking any other clear grounds for its rulings on basic liberties, the Supreme Court turned early in its history to the fundamental principles—“complete equality of social and political rights,” “freedom of religion, conscience,” etc.—that had been proclaimed in Israel’s Declaration of Independence. Thus, in one landmark case (Kol Ha’am, 1953) the court relied on “freedom of speech” to invalidate a ministerial order that had closed a newspaper. With the accumulation of such precedents over the years, Israel—again like Great Britain—gradually came to have a judge-made bill of rights.

All along, however, the Supreme Court was loath to take up questions of national controversy, wishing, as the justices wrote in an influential early decision, not to “trespass upon the preserves of the political and executive authorities.” To guard against such intrusion, the court imposed two restrictive rules on itself. On the technical question of legal standing, only parties directly and substantively injured by some government action were allowed to petition. And even then, a range of issues, especially those related to the discretion of the political branches, was held not to be “justiciable”—that is, the court did not consider itself competent to decide them.

Thus constrained, but at the same time deeply committed to protecting the rights of individuals, the Supreme Court of Israel won a reputation for professionalism and integrity, and the nearly universal respect of Israelis. But all this began to change in the mid-1980’s—thanks, in large measure, to the prodigiously influential jurisprudence of Aharon Barak.

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Trained during the late 1950’s and early 60’s at Hebrew University’s elite law faculty, Barak has moved from one major achievement to the next. Winner of the prestigious Israel Prize for his scholarship as a young law professor, he was shortly thereafter appointed the country’s attorney general, serving from 1975 to 1978 and earning notice for his bold prosecution of leading government figures on charges of corruption. As a member of the Supreme Court since 1978—and its Chief Justice since 1995—he has authored not only dozens of key opinions but, off the bench, a formidable body of lectures and writings. As one admirer has justly observed, Barak is Israeli law’s “first genuine superstar.”

Barak’s judicial philosophy, as he himself has laid it out, is grandiose in the extreme. No doubt reflecting his experience as a corruption-busting attorney general, Barak argues that it is the Supreme Court’s job to enforce “the rule of law” within government, and he wants the court to be aggressive in holding officials to legal norms like due process, “reasonableness,” and “proportionality.” More radically, however, Barak maintains that the reach of law in Israel, or anywhere else for that matter, is unlimited, and that judges need to act accordingly:

Every human behavior is subject to a legal norm. Even when a certain type of activity—such as friendship or subjective thoughts—is ruled by the autonomy of the individual will, this autonomy exists because it is recognized by the law. . . . There are no areas in life which are outside of law. There are no acts (of commission or omission) to which the law does not apply. . . . Even the activity bearing the greatest political character—such as making war or peace—is examinable by judicial criteria.

This sweeping—not to say breathtaking—view has been memorably summarized by Barak himself (amending a well-known phrase from the daily Jewish liturgy concerning the omnipresence of God’s glory): “The world is filled with law.”

Needless to say, principles so wholly at odds with the Supreme Court’s traditions of restraint were not immediately embraced by Barak’s colleagues on the bench. But by 1986, Barak could marshal a majority for a ruling (in Ressler) at the heart of which lay a manifesto for opening the Supreme Court to a far greater range of complaints and complainants. Any citizen, politician, or interest group asserting that the government had somehow violated “the rule of law” could now claim standing and win a hearing. And politically sensitive cases, once assiduously avoided by the court, were henceforth justiciable: not only welcome, but actively to be sought out.

As a result of this far-reaching change—greeted with glee by the country’s organized liberal causes, left-wing members of the Knesset, and most law professors—no corner of Israeli government has, over the past decade, escaped the court’s superintendence. The justices have overruled decisions by the attorney general on whether or not certain cases should be prosecuted; overturned the minister of justice’s decision not to extradite a person to France; questioned the power of the president of Israel to grant pardons; invalidated emergency regulations issued by cabinet ministers; and even forced the prime minister’s hand on a number of appointments, forbidding some appointees from taking office and insisting that others be removed. Nor has the Knesset itself been spared. The court has ruled on the legality of coalition agreements among political parties, and on occasion has even interfered in parliamentary proceedings, ordering the speaker of the Knesset to entertain motions and table bills.

For the Supreme Court of Israel, in short, deference to the ordinary discretion exercised by the political branches has become a thing of the past.

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Still, even well into the 1990’s, one unassailable taboo remained: interfere though it might in the Knesset’s proceedings or in the execution of a government order, the court still did not consider itself empowered to overturn a law that had been duly enacted by the country’s “sovereign” parliament. Soon, however, this taboo, too, would fall.

During a late-night session in March 1992, two new “Basic Laws” were passed by a thinly attended Knesset. Whereas the existing Basic Laws dealt with the structure of government, the new ones were the first Basic Laws to treat fundamental rights. “Basic Law: Human Dignity and Liberty” spoke in general terms of the right of Israelis to life, bodily integrity, property, and privacy. “Basic Law: Freedom of Occupation” guaranteed the right to engage in any profession or vocation.

At the time, the new Basic Laws generated relatively little discussion, in part because of the haste and inattention with which they were passed but also because they seemed to codify fundamental rights that already had a firm standing in the precedents of the Supreme Court. Even representatives of the ultra-Orthodox supported the laws, although under explicit assurances that the religious status quo would in no way be altered.

But among the questions glossed over in the brief parliamentary debate was the precise significance in both laws of a “balancing” provision, according to which these newly enshrined rights could be infringed by the Knesset if doing so would further a “proper purpose” and advance Israel’s values as a “Jewish and democratic state.” This introduced a real ambiguity into Israeli law. Did it mean that a Knesset statute that failed to meet these criteria, however properly it had been enacted, could be invalid—and, more tantalizingly, could be held invalid by the Supreme Court—on the grounds that it violated one of the new rights, however they might be defined? Those who promulgated the new Basic Laws could not say with any assurance.

But no such uncertainty afflicted Aharon Barak. In a now-famous speech delivered shortly after passage of the laws, he forthrightly declared that Israel had undergone a “constitutional revolution.” According to Barak, the Supreme Court now possessed the power of judicial review: the justices could throw out ordinary laws of the presumably sovereign Knesset that did not comply with the new Basic Laws. Israel, he said, finally had a real constitution.

To promote this view—especially within the Israeli legal establishment—Barak proceeded to publish exhaustive commentaries on the new laws, including a massive textbook that quickly entered general use. By 1995, in the Bank Hamizrachi decision, his reading of the Basic Laws was formally adopted by the other justices. Barak’s book-length opinion, filled with learned citations, argued that, when properly seen through the lens of contemporary Anglo-American legal theorists like Ronald Dworkin and H.L.A. Hart, the new Basic Laws were in fact an exercise of the Knesset’s original authority as a constitutional assembly—and one intended, moreover, vastly to expand the authority of the judiciary.

To be sure, Barak’s bravura notwithstanding, the justices have so far contented themselves with merely claiming their new power of striking down laws, and have yet to exercise it outright. But what the court has not hesitated to do is to apply the new Basic Laws to various lesser acts of government—especially the administrative orders and regulations through which the Israeli government has long met the needs, and accommodated the demands, of the ultra-Orthodox community.

Acting under their supposed new mandate, for example, the justices have handed down decisions forcing the government for the first time to allow the importation of non-kosher meat, and requiring rabbinical courts to apply secular rather than Jewish law when dividing property in divorce settlements. More controversially, in light of the great number of court precedents that point in the other direction, the justices have set aside the half-century-old arrangement under which yeshiva students were exempted from the military draft. These actions have come amid others based on different but no less questionable grounds. They include one decision disallowing the closure for Sabbath observance of a street in a strictly religious neighborhood of Jerusalem, and another ending the exclusive control of the Orthodox over local religious councils, which oversee matters like kosher certification.

But no less upsetting to haredi sensibilities has been Aharon Barak’s view of the place of Judaism itself in his self-proclaimed “revolution.” At issue here is the “balancing” language that ostensibly permits infringements of the new Basic Laws to advance Israel’s values as a “Jewish and democratic state.” On its face, this would seem to give some authority to the appeal of the haredim to longstanding political and social arrangements. But Barak, in an early statement on the new laws, saw it decidedly otherwise.

The phrase “Jewish state,” Barak announced, should be given “meaning on a high level of abstraction,” so as “to unite all members of society and find the common among them.” In fact, “the level of abstraction should be so high” that it “becomes identical to the democratic nature of the state.” Interpretive harmony was to be sought, in other words, by draining the term “Jewish” of any and all specific content that might distinguish it from “democratic.”

Nor was that all. Barak made it clear that, by “democratic,” he had something highly specific in mind. In “hard” cases involving the state’s fundamental values, he suggested, judges should take their bearings not from Israel’s traditions, or even from the democratically expressed will of its people, but rather from the views of “the enlightened community.” Though Barak qualified this phrase in various ways, its implication was plain enough. In distinguishing themselves from the “benighted” religious, the members of Israel’s liberal, secular elite—atop which the Chief Justice himself indisputably sits—tend to favor no self-gratulatory epithet quite so much as “enlightened.”

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Against this backdrop, the massive demonstration of Israel’s haredim last February takes on a rather different aspect. It was hardly, as some news reports suggested, a spontaneous fit of anti-secular spite. Nor—contrary to the often apocalyptic rhetoric of those who denounced, or even tried to stop, the event—did it represent an assault on “democracy” and the “rule of law.” Quite the opposite: it was a peaceful protest by an aggrieved minority, exercising its democratic right to speak out at having become the special target of a candidly activist judiciary.

To say this is hardly to condone the extreme statements of some ultra-Orthodox leaders, or the ad-hominem attacks on Supreme Court justices. Nor is it necessarily to endorse the particular policies favored by the haredim, however time-honored those policies may be. In a modern democracy—even a modern Jewish democracy—such things must be open for debate.

But debate—not to mention compromise, and deal-making, and the other essential activities of politics—is precisely what those who profess to tremble for the “very foundation [of] Israeli democracy” seem most determined to foreclose. The predecessors of today’s justices long recognized that only elected officials were in a position to accommodate the many points of view that form Israel’s peculiar national identity (and fragile national unity). Today, under the flimsiest of legal pretexts and a fog of rhetoric about the safeguarding of rights and the rule of law, Aharon Barak’s court is eagerly taking sides, encouraging those who share its position to forgo the arduous task of persuading their fellow citizens.

Different as are the situations of the two countries and their respective legal institutions, there is, as it happens, a cautionary lesson for Israel in the recent history of the U.S. Supreme Court, whose activist rulings of several decades ago are even now a source of angry division in American politics. That the Israeli Supreme Court shows every sign of following if not expanding upon this dangerous course—in a far more polarized society, and without the benefit of a popularly established constitution—is recklessness compounded.

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