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Judges in Contemporary Democracy

Judges in Contemporary Democracy: An International Conversation

Robert Badinter
Stephen Breyer
Robert Badinter
Stephen Breyer
Antonio Cassese
Ronald Dworkin
Dieter Grimm
Gil Carlos Rodriguez Iglesias
Copyright Date: 2004
Published by: NYU Press
Pages: 317
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  • Book Info
    Judges in Contemporary Democracy
    Book Description:

    Law, politics, and society in the modern West have been marked by the increasing power of the judge: the development of constitutional justice, the evolution of international judiciaries, and judicial systems that extend even further into social life. Judges make decisions that not only enforce the law, but also codify the values of our times.In the summer of 2000, an esteemed group of judges and legal scholars met in Provence, France, to consider the role of the judge in modern society. They included Robert Badinter, former president of the Constitutional Council in France; Stephen Breyer, Justice of the Supreme Court of the United States; Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia; Dieter Grimm, former vice president of the Constitutional Court of Germany; Gil Carlos Rodriguez, president of the Court of Justice of the European Union; and Ronald Dworkin, formerly of Oxford University, now professor of philosophy and law at the New York University Law School. What followed was an animated discussion ranging from the influence of the media on the judiciary to the development of an international criminal law to the judge's consideration of the judge's own role. Judges in Contemporary Democracy offers a rare and intimate glimpse into the powers and the role of judges in today's society.

    eISBN: 978-0-8147-3934-1
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Preface
    (pp. 1-8)
    Robert Badinter and Stephen Breyer
  5. Introductory Remarks
    (pp. 9-16)

    Robert BADINTER: I shall discuss a phenomenon that has appeared in every Western democracy. (I speak of “democracies” because other forms of government are simply too different.) That phenomenon consists of the augmentation of the power of the judge. That growth, in one form or another, has taken place everywhere. It long has characterized American society. In Europe, it has been particularly noticeable, at least to men of my age, since the end of World War II. In France, taking as a point of departure the period just after the Occupation and the Liberation, and comparing the importance of the...

  6. 1 Judicial Activism
    (pp. 17-66)
    Dieter Grimm

    The title “judicial imperialism” chosen by Robert Badinter for the first seminar session could suggest that the growing importance of courts in the last century has its main reason in judicial activism: The judges conquer more and more terrain that was formerly reserved for political decisionmaking or societal self-regulation. Yet, this would not be the complete truth. Before the judiciary can expand into areas previously dominated by other forces, courts must be established and endowed with competencies to decide social and political conflicts. The decision that conflict is better left to the judiciary for resolution is not made primarily in...

  7. 2 The Secular Papacy
    (pp. 67-116)
    Ronald Dworkin

    I pose three questions about the contemporary role of judges in announcing, interpreting, and enforcing the basic principles of justice and democracy for their communities: (1) Is there any way that judges playing that role can avoid relying on their own personal moral convictions, which may be different from those of most of their fellow citizens and, in any case, will vary from judge to judge? (2) If not, is this judicial role anathema to democracy or otherwise objectionable? (3) Such authority is indeed thought unjustified by many critics and much of the general population, and judges characteristically deny that...

  8. 3 Supervision of the Political Process
    (pp. 117-174)
    Stephen Breyer

    This paper will focus upon three areas in which judges, while maintaining strict neutrality with respect to each party’s political program, make decisions that may nonetheless significantly affect the political process. The three areas are: (1) the determination and enforcement of fair voting rules; (2) the regulation of campaign finance; and (3) the interpretation and enforcement of ethics laws. I shall draw examples in each area from American law.

    Taken together, the three areas illustrate three different ways in which judges intervene in political processes: (1) Judges sometimes directly supervise elections (e.g., “fair voting rules”); (2) they set aside laws...

  9. 4 International Criminal Justice
    (pp. 175-254)
    Antonio CASSESE

    1. A few words are fitting on the merits of the judicial response to the commission of international crimes (e.g., war crimes, crimes against humanity, genocide, torture in times of peace, aggression, terrorism).

    Justice is better thanrevenge. Revenge is undoubtedly a primitive form of justice, a private system of law enforcement. It has, however, an altogether different foundation from justice: an implacable logic of hatred and retaliation. Revenge can only be the last resort for persons who have been denied due process, as is shown by what occurred after World War I in the case of the Armenians (they took...

  10. 5 The Infernal Couple: Justice and the Media in the Information Age
    (pp. 255-274)
    Robert Badinter

    In contemporary democracies dominated by communication, the relationship between justice (the third power) and the media (the fourth—or the first—power) is complex and ambiguous.

    Traditionally, freedom of opinion and of expression is considered a fundamental right of a constitutional dimension. Constitutional courts and international jurisdictions are willing to apply this principle. When faced with attacks or threats, the media consequently find protection in the courts.

    However, those who believe that the media have violated their rights to privacy, honor, reputation, dignity, personality, etc., also look to judges for protection. Making public information of a confidential nature, whether it...

  11. 6 The Judge Confronts Himself as Judge
    (pp. 275-316)
    Gil Carlos Rodriguez Iglesias

    The expansion, diversification, and politicizing of the judge’s field of activity and the economic and technical complexity of the matters submitted to him.

    The discussion points sketched below under the heading “The Judge Confronts Himself as Judge,” that is to say, the judge’s perception of his or her own role, are not simply the fruits of simple introspection. They flow from the observation and analysis of the reality of the judicial phenomenon in contemporary society. That observation and analysis takes place within the limits defined by the observer’s own position. Those limits, like all such limits, make any perspective of...

  12. About the Participants
    (pp. 317-318)