The Judge in a Democracy

The Judge in a Democracy

Aharon Barak
Copyright Date: 2006
Pages: 360
https://www.jstor.org/stable/j.ctt7szb4
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    The Judge in a Democracy
    Book Description:

    Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book.

    In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy.

    Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia.

    As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.

    eISBN: 978-1-4008-2704-6
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Introduction
    (pp. ix-xxii)

    I am not a philosopher. I am not a political scientist. I am a judge—a judge in the highest court of my country’s legal system. So I ask myself a question that many supreme court judges—and, in fact, all judges on all courts in modern democracies¹—ask themselves: What is my role as a judge? Certainly it is my role, and the role of every judge, to decide the dispute before me. Certainly it is my role, as a member of my nation’s highest court, to determine the law by which the dispute before me should be decided....

  4. PART ONE THE ROLE OF THE JUDGE
    • CHAPTER ONE Bridging the Gap between Law and Society
      (pp. 3-19)

      The law regulates relationships between people. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism.¹ It is based on a factual and social reality that is constantly changing.² Sometimes the change is drastic and easily identifiable. Sometimes the change is minor and gradual, and cannot be noticed without the proper distance and perspective. Law’s connection to this fluid reality implies that it too is always changing. Sometimes a change in the...

    • CHAPTER TWO Protecting the Constitution and Democracy
      (pp. 20-98)

      The second role of the judge in a democracy is to protect the constitution¹ and democracy itself.² Legal systems with formal constitutions impose this task on judges, but judges also play this role in legal systems with no formal constitution. Israeli judges have regarded it as their role to protect Israeli democracy since the founding of the state,³ even before the adoption of a formal constitution.⁴ In England, notwithstanding the absence of a written constitution, judges have protected democratic ideals for many years.⁵ Indeed, if we wish to preserve democracy, we cannot take its existence for granted. We must fight...

  5. PART TWO THE MEANS OF REALIZING THE JUDICIAL ROLE
    • CHAPTER THREE Preconditions for Realizing the Judicial Role
      (pp. 101-112)

      In this part, I consider several devices through which judges in a democracy may realize their role. Indeed, it is not enough that we know where we need to go. We must develop means (or tools) to help us reach that goal, and the preconditions necessary to allow judges to realize their role must be met. These preconditions vary among democracies, but three are common to all democratic systems of law: (1) judicial impartiality and objectivity, (2) decisions within the social consensus, and (3) public confidence in the judiciary. These are not the only general preconditions, but they seem to...

    • CHAPTER FOUR The Meaning of Means
      (pp. 113-121)

      The means of realizing the judicial role must be legitimate; the principle of the rule of law applies first and foremost to judges themselves, who do not share the legislature’s freedom in freely creating new tools. The bricks with which we build our structures are limited. Our power to realize our role depends on our ability to design new structures with the same old bricks or to create new bricks.¹ Sometimes there is great similarity between the new structures we build with the old bricks and the old structures we have known in the past. We tend to say that...

    • CHAPTER FIVE Interpretation
      (pp. 122-154)

      Interpretation, by which I mean rational activity giving meaning to a legal text (whether it be a will, contract, statute, or constitution),¹ is both the primary task and the most important tool of a court. Interpretation derives the legal meaning from the text. Put another way, interpretation constitutes a process whereby the legal meaning of a text is “extracted” from its semantic meaning. The interpreter translates “human” language into “legal” language.² He changes “static law” into “dynamic law” by transforming a linguistic text into a legal norm.

      Many aspire in vain to uncover what the legal meaning of a text...

    • CHAPTER SIX The Development of the Common Law
      (pp. 155-163)

      Judges not only interpret statutes created by the legislature, they also create law. This applies to all legal systems. There is no judging without creation of law. It is most strongly manifested in common law systems. The common law is judge-made law. It has been created by judges for hundreds of years. “The history of the common law is a history of continuous, gradual development over a period of many centuries.”¹ The common law may develop and provide new solutions to new problems without the need for any legislative authorization. A judge’s power to create the common law is inherent...

    • CHAPTER SEVEN Balancing and Weighing
      (pp. 164-176)

      From my judicial experience, I have learned that “balancing” and “weighing,” though neither essential nor universally applicable, are very important tools in fulfilling the judicial role. Even where applicable, however, they do not produce singular, unambiguous legal solutions. Indeed, the main significance of balancing and weighing is the order they lend to legal thinking rather than the particular legal judgments they produce. To apply these tools, one must first identify the relevant values and principles whose framework provides a necessary context for balancing and weighing.¹ These tools express the complexity of the human being and of human relationships. They also...

    • CHAPTER EIGHT Non-Justiciability, or “Political Questions”
      (pp. 177-189)

      An important tool that judges use to fulfill their role in a democracy is determining justiciability.¹ That is, judges identify those issues about which they ought not make a decision, leaving that decision to other branches of the state.² The more non-justiciability is expanded, the less opportunity judges have for bridging the gap between law and society and for protecting the constitution and democracy. Given these consequences, I regard the doctrine of non-justiciability or “political questions” with considerable wariness. Insofar as is possible, I prefer to examine an argument on its merits, or to consider abstaining from a decision for...

    • CHAPTER NINE Standing
      (pp. 190-196)

      The issue of standing appears to be marginal in public law. This is certainly the case if one adopts the view that only a person who has experienced an injury in fact possesses standing. But if we liberalize the tests for standing, we will usher in a new era for judicial decision making whose ramifications are far greater than the issue of standing itself.¹ This is the case because liberal rules of standing enable courts to hear matters that ordinarily would not find their way before a court. Take, for example, the case I mentioned of the pretrial pardon given...

    • CHAPTER TEN Comparative Law
      (pp. 197-204)

      I have found comparative law to be of great assistance in realizing my role as a judge. The case law of the courts of the United States, Australia, Canada, the United Kingdom, and Germany have helped me significantly in finding the right path to follow. Indeed, comparing oneself to others allows for greater self-knowledge. With comparative law, the judge expands the horizon and the interpretive field of vision. Comparative law enriches the options available to us. In different legal systems, similar legal institutions often fulfill corresponding roles, and similar legal problems (such as hate speech, privacy, and now the fight...

    • CHAPTER ELEVEN The Judgment
      (pp. 205-212)

      The means for realizing the judicial role are carried out in practice via the reasoned judgment of the court.¹ The judgment is the voice of the judge, through which the judge realizes his role in a democracy. True, judges may write books and articles and sometimes give lectures and teach students. In doing so, the judge acts as an individual. Only through the judgment does the individual act as a judge. The judgment is the judge’s means of expression, the exclusive means through which the judicial voice is actualized in practice. That judgment is sometimes criticized. The judge generally cannot...

  6. PART THREE THE RELATIONSHIP BETWEEN THE COURT AND THE OTHER BRANCHES OF THE STATE
    • CHAPTER TWELVE Tension among the Branches
      (pp. 215-225)

      There is constant tension in the relationships between the courts and the other branches of the state,¹ a tension that stems from the different roles of the branches. The role of the judiciary is to review the actions of other branches and evaluate whether they are acting lawfully. This role naturally meets with opposition from the other branches, particularly when the judiciary, through its rulings, frustrates political goals the other branches pursue. In such circumstances many argue that a body that is not accountable to the people should not be able to frustrate the will of the people. The more...

    • CHAPTER THIRTEEN The Relationship between the Judiciary and the Legislature
      (pp. 226-240)

      The foundation of democracy is a legislature elected freely and periodically by the people. Without majority rule, as reflected in the power of the legislature, there is no democracy. As judges and legal scholars, we often forget this fundamental principle. Common law legal thought focuses mainly on the judiciary and neglects the legislature. Jeremy Waldron has rightly said that “legislation and legislatures have a bad name in legal and political philosophy, a name sufficiently disreputable to cast doubt on their credentials as respectable sources of law.”¹ In contrast, my concept of the role of a judge in a democracy recognizes...

    • CHAPTER FOURTEEN The Relationship between the Judiciary and the Executive
      (pp. 241-260)

      The executive derives its powers from the constitution and statutes. Therefore, it must act within the framework of the constitution and statutes. If it exceeds the authority given to it, or if it exercises that authority unlawfully, the judiciary must exercise the power of review given to it by the constitution and statutes.¹ The judiciary should use this power to determine the consequences of the executive’s actions. In this activity, the judiciary does not confront the countermajoritarian argument, because in such cases, as long as no constitutional problem arises, the legislature has the power, if it so wishes, to change...

  7. PART FOUR EVALUATION OF THE ROLE OF A JUDGE IN A DEMOCRACY
    • CHAPTER FIFTEEN Activism and Self-Restraint
      (pp. 263-282)

      Judicial decisions are commonly characterized along the continuum of activism and self-restraint. Those who make these classifications seldom define their terms. The result is chaos and misunderstanding conducive neither to debate nor to evaluation. For many, these terms have become code words for criticism or praise: X is a good judge because he is activist; Y is a good judge because she exercises self-restraint. But what do we mean by activism and self-restraint? Is one good and the other bad? The answer to this question seems to vary depending on the period in which it is asked. At some points...

    • CHAPTER SIXTEEN The Judicial Role and the Problem of Terrorism
      (pp. 283-305)

      Terrorism plagues many countries. The United States realized its devastating power on September 11, 2001. Other countries, such as Israel, have suffered from terrorism for a long time.¹ While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts:

      We are aware that this decision does not make it easier to deal...

    • CHAPTER SEVENTEEN The Role of the Judge: Theory, Practice, and the Future
      (pp. 306-316)

      At the opening of this book, I asked what the role of the judge in a democracy is.¹ I also asked whether there are criteria for evaluating how the judicial role is realized. I wanted to know which tests determine whether a judge is a good judge. In this book, I have tried to give an answer to these questions. My answer concerning the role of the judge is this: the role of the judge is to adjudicate the dispute brought before him. In order to do so, the judge must decide the law according to which the dispute will...

  8. Index
    (pp. 317-332)