Barak Medina (Hebrew University of Jerusalem - Faculty of Law) has posted Four Myths of Judicial Review: A Response to Richard Posner's Criticism of Aharon Barak's Judicial Activism on SSRN. Here is the abstract:
Richard Posner has recently reviewed, in The New Republic, Aharon Barak's book, The Judge in a Democracy. Posner criticizes Barak for both his theoretical argument and for what Posner portrays as Barak's legacy as the President of Israel's Supreme Court. Posner accuses Barak for acting as "a legal buccaneer," and describes his approach as "usurpative." Posner crowns Barak, in the very title of his review, as no less than an "Enlightened Despot." In this response I claim that Posner's critique lacks a proper understanding of the legal situation in Israel, it misrepresents Barak's activities as a judge, and fails to contend properly with Barak's doctrine which it purports to reject.
And some more from the text:
[Given] a reality in which the disagreement generallyreflects a structural division of majority and minority, in other words, a consistent majority, based upon a group interest, versus a “chronic minority” (for instance the Arab population in Israel) . . . , the majority’s decision grants absolute power to one group, simply by virtue of its being the larger group in society, and denies the minority group the right of equal participation in decision-making. Therefore, a belief in the right of equal participation does not oppose judicial activism, at least when that activism is employed to protect minorities. Moreover, when the majority directs its power against those who are unable to participate in the decision at all—for instance the residents of occupied territory—this argument is even more valid. Therefore, Posner’s criticism of Barak’s support of the decision to intervene when the State did not distribute gas masks to residents of the Occupied Territories during the 1991 Gulf War cannot rest on the right to equal participation, for the residents of the territories are denied access to the political system that decides their fate.
Short and very nice. Recommended.
