Aharon Barak: A Judicial Approach Shaped by the Worst and Best in People

Aharon Barak is known internationally for his role in strengthening individual rights and the civil courts in Israel. The accomplishments and prestige of the retired chief judge of the Israeli Supreme Court are what made him a good choice for presenting this year’s Hallows Lecture at Marquette Law School.

But beyond the Hallows lecture on judicial philosophy Monday and beyond what Barak said to several classes and at meetings with faculty members and beyond his remarks Sunday night at a dinner attended by leaders of Milwaukee’s Jewish community, there lies a personal side to what it motivates Barak as a judge. It came out in spontaneous remarks  at a private dinner Monday night after the Hallows lecture. 

Barak, 74, recounted how he was born in Lithuania. He was five when Nazi forces occupied his homeland. Tens of thousands of Lithuanian Jews, including Barak and his parents, were put in the Kovno ghetto. Many were killed or sent to their deaths in concentration camps, while others were confined to the ghetto. As the Germans began to kill the children of the ghetto, Barak and his mother were smuggled out.

He recalled how they were given a hiding place by first one and then another Catholic family. Those families would have themselves been killed if they were found to be harboring Jews. Their kindness and willingness to risk their own lives made a great impression on him.

Barak and his mother were able to evade the Germans until the Russians gained control of the area. After the war, he and those who remained in his family moved from place to place in eastern Europe before ending up in Rome and, in 1947, making it to what is now Israel.  Barak went on to become attorney general of Israel and a member of the supreme court for 28 years, 11 of them as the president of the court.  Retired now, he teaches and writes; he is currently a visiting professor of law and Oscar M. Ruebhausen Distinguished Senior Fellow at Yale Law School.

Barak said the experiences he had in the Holocaust years showed him the goodness that exists in some people, regardless of their religion, as well as the evil that exists in the world. He said motivated him to do what he can to protect freedom and human dignity. He said he carried what he learned into his decisions as a judge on issues such as how to balance the security needs of Israel with the rights of individuals. His childhood experiences taught him that the individual must sometimes be protected from the state, even as the state needs to be protected from its enemies, he said.

Although he was instrumental in upholding such steps as the building of a security wall that separates much of Israel from West Bank lands that are home to several million Palestinians, he said he has tried to preserve individual rights to freedom.

In his Hallows lecture, Barak said judges should use their legal discretion to help advance constitutional democracy and society in general.  Judges build bridges between the law and life, he said. They need to balance the need for stability in a society with the need for change. Judges need to be sure that democracy does not mean just majority rule, but that a framework of individual rights shapes a society.

“If we do not protect democracy, democracy will not protect us,” he said. Security is not the ultimate value and the ends may not justify the means when it comes to security.  He said he was opposed, in particular, to the use of torture.

Challenged by an audience member at the lecture over some of his decisions which upheld measures in the name of security, but which the audience member said harmed Palestinians, Barak said, “I’ve clearly made mistakes.” But, overall, he’s been right more often than he was wrong, he said, and the Supreme Court kept the situation from being worse in occupied areas. “We have done what we thought was the true interpretation, the interpretation of international law,” Barak said.   

“We demand that others act according to law,” Barak said in his lecture. “This is the demand we also make of ourselves. When we sit on trial, we judges are on trial, too.”

A judge, he said, is someone who upholds not only the law but the proper balance between individuals and the state. For Barak, an important part of that is keeping in mind the extremes of kindness and cruelty that shaped his own life.

Video of the Hallows lecture is available here.

This Post Has 2 Comments

  1. Rick Meyer

    As always, Alan writes well and cogently of this scholarly and admired jurist’s views and approaches to the law.

  2. Nick Zales

    Given that the United States is not a democracy, “protecting democracy” is the antithesis of what our legal system should be doing.

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