A SCHOLAR, TEACHER, JUDGE, AND JURIST IN A MIXED JURISDICTION: THE CASE OF AHARON BARAK

Abstract

Mixed legal systems are defined as systems that derive from more than one legal tradition or family. Can we also define “mixed-legal jurists”? Do scholars, teachers, judges, or jurists in mixed-legal jurisdictions differ from their colleagues in “pure” jurisdictions? Naturally, jurists in a mixed jurisdiction are usually educated in their home country and are therefore trained to work within its hybrid-legal environment. But do they also have a particular awareness of the idea of mixed-legal systems? Do they share a sense of responsibility towards the special character of their mixed jurisdiction? In this piece, I investigate these questions by analyzing the mixed-legal system of Israel through the eyes of Aharon Barak, a world-renowned Israeli jurist and judge. Barak, born in 1936, was a prominent law professor and a prolific writer and legal theorist, who became Dean of the Hebrew University Faculty of Law at an early age. He was then appointed Israel’s Attorney General and later joined the Israeli Supreme Court, on which he served for nearly thirty years as an Associate Justice and then as the President of the Court. Even after his retirement from the bench, he has remained an important figure in Israeli academia and public life to this day. In this Article, I describe Israel’s mixed-legal system by following Barak’s long career as a scholar, teacher, judge, and jurist. I show how Barak expressed Israel’s unique mixture while simultaneously shaping it. Yet my deeper purpose in this Article is to use Barak’s ideas on mixed jurisdictions to demonstrate the Israeli dynamic conception of law, and to explain the Israelis’ insistence on the originality and independence of their legal system. Barak is of interest to comparatists for three reasons. First, as I discuss below, no one has better expressed Israel’s legal mixture. In his long and diverse career, Barak personified Israeli legal fusion and was a living example of a “mixed jurist.” Second, Barak’s important functions as a law professor, dean, Attorney General, judge, and President of the Supreme Court clearly enabled him to deeply affect Israeli mixed law and its legal system. Barak not only represented Israel’s legal mix, but forged it according to his own worldview. Third, Barak is probably the best example of Israel’s dynamic-legal character and of the uniquely Israeli type of mixed-legal system; he is the foremost advocate of the idea that Israel is a mixed jurisdiction that borrows from many traditions, while also insisting on its originality and intellectual independence by refusing to bow before any particular legal tradition. Barak considered legal fusion to be an important character of Israel’s legal culture and a symbol of its independence. According to him, the Israeli legal system has deep roots in both the Jewish and Western legal traditions, but he also believes that it is a young and vibrant juridical system which is inspired by different legal cultures—Jewish and non-Jewish, ancient and modern, Anglo-American and Romano–Germanic—to form its own hybrid-yet-original system. The result of this history is a unique mix, which on the one hand reflects and articulates its various legal and cultural sources, yet on the other hand is an innovative creation attentive to Israel’s present-day values, needs, and interests. Therefore, according to Barak, Israel’s legal system is a unique blend that cannot be accurately attributed to any of the known legal families, not even to “the third legal family” of mixed—common/civil law—jurisdictions. This Article has three parts: the first describes Israel as a sui generis mixed jurisdiction; the second discusses Barak’s special awareness of Israel’s hybrid-legal system and his views regarding legal borrowing and the need of developing an Israeli autonomous and original law; and the third follows Barak’s biography from law school to the bench, describing the ways he expressed Israel’s mixture, while at the same time shaping it according to his ideas described earlier in the Article.