The Judge in a Democracy
1st Edition
Published on 10. January 2009
368 pages
978-1-4008-2704-6 (ISBN)
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.
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.
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Aharon Barak
The Judge in a Democracy
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Person
Aharon Barak is President of the Supreme Court of Israel. He is the author of Judicial Discretion (1989), Purposive Interpretation in Law (Princeton, 2005), several books in Hebrew, and numerous articles in English-language law journals.
Content
Introduction ix
PART ONE: THE ROLE OF THE JUDGE 1
Chapter One: Bridging the Gap between Law and Society 3
Law and Society 3
Changes in Legislation and in Its Interpretation 4
Changes in Society Affecting the Constitutionality of Statutes 8
Changes in the Common Law 10
Change and Stability 11
Chapter Two: Protecting the Constitution and Democracy 20
The Struggle for Democracy 20
What Is Democracy? 23
The Separation of Powers 35
Democracy and the Rule of Law 51
Fundamental Principles 57
Independence of the Judiciary 76
Human Rights 81
Criticism and Response 88
PART TWO: THE MEANS OF REALIZING THE JUDICIAL ROLE 99
Chapter Three: Preconditions for Realizing the Judicial Role 101
Judicial Impartiality and Objectivity 101
Social Consensus 107
Public Confidence 109
Chapter Four: The Meaning of Means 113
The Legitimacy of the Means 113
Operative Legal Theory 113
Judicial Philosophy 116
Chapter Five: Interpretation 122
The Essence of Interpretation 122
Purposive Interpretation 125
Purposive Interpretation of a Constitution 127
Purposive Interpretation of Statutes 136
Purposive Interpretation and Judicial Discretion 146
Purposive Interpretation and Intentionalism
(or Subjective Purpose) 148
Purposive Interpretation and Old Textualism 149
Purposive Interpretation and New Textualism 152
Chapter Six: The Development of the Common Law 155
The Common Law as Judge-Made Law 155
Judicial Lawmaking 157
Overruling Precedent 158
Chapter Seven: Balancing and Weighing 164
The Centrality of Balancing and Weighing 164
Balancing and Categorization 166
The Nature of Balancing 167
Types of Balancing 170
The Advantages of Balancing 172
Critique of Balancing and Response 174
The Scope of the Balancing 175
Chapter Eight: Non-Justiciability, or "Political Questions" 177
The Role and Limits of Justiciability 177
Types of Justiciability 178
Justiciability and Public Confidence 186
Chapter Nine: Standing 190
Standing and Adjudication 190
Standing and Substantive Democracy 194
Chapter Ten: Comparative Law 197
The Importance of Comparative Law 197
The Influence of Comparative Law 198
Comparative Law and Interpretation of Statutes 199
Comparative Law and Interpretation of the Constitution 200
Use of Comparative Law in Practice 202
Chapter Eleven: The Judgment 205
Formulating the Judgment and Realizing the Judicial Role 205
The Judge as Part of the Panel 208
PART THREE: THE RELATIONSHIP BETWEEN THE COURT AND THE OTHER BRANCHES OF THE STATE 213
Chapter Twelve: Tension among the Branches 215
Constant Tension 215
The Tension Is Natural and Desirable 216
The Attitude toward the State 217
Public Officials as Trustees 220
Duties of the Individual toward the State 222
Chapter Thirteen: The Relationship between the Judiciary and the Legislature 226
The Uniqueness of the Legislature 226
Judicial Review of Legislation 229
Judicial Review of Nonlegislative Decisions of the Legislature 231
The Dialogue between the Judiciary and the Legislature 236
Chapter Fourteen: The Relationship between the Judiciary and the Executive 241
The Scope of Review 241
Judicial Interpretation and Executive Interpretation 246
Executive Reasonableness 248
Proportionality 254
PART FOUR: EVALUATION OF THE ROLE OF A JUDGE IN A DEMOCRACY 261
Chapter Fifteen: Activism and Self-Restraint 263
Definition of the Terms 263
Some Definitions and Their Critiques 267
Definition of Activism and Self-Restraint 270
The Desirability of Activism or Self-Restraint 279
Chapter Sixteen: The Judicial Role and the Problem of Terrorism 283
Terrorism and Democracy 283
In Battle, the Laws Are Not Silent 287
The Balance between National Security and Human Rights 291
Scope of Judicial Review 298
Chapter Seventeen: The Role of the Judge: Theory, Practice, and the Future 306
Theory 306
Reality 310
The Future 310
Index 317
PART ONE: THE ROLE OF THE JUDGE 1
Chapter One: Bridging the Gap between Law and Society 3
Law and Society 3
Changes in Legislation and in Its Interpretation 4
Changes in Society Affecting the Constitutionality of Statutes 8
Changes in the Common Law 10
Change and Stability 11
Chapter Two: Protecting the Constitution and Democracy 20
The Struggle for Democracy 20
What Is Democracy? 23
The Separation of Powers 35
Democracy and the Rule of Law 51
Fundamental Principles 57
Independence of the Judiciary 76
Human Rights 81
Criticism and Response 88
PART TWO: THE MEANS OF REALIZING THE JUDICIAL ROLE 99
Chapter Three: Preconditions for Realizing the Judicial Role 101
Judicial Impartiality and Objectivity 101
Social Consensus 107
Public Confidence 109
Chapter Four: The Meaning of Means 113
The Legitimacy of the Means 113
Operative Legal Theory 113
Judicial Philosophy 116
Chapter Five: Interpretation 122
The Essence of Interpretation 122
Purposive Interpretation 125
Purposive Interpretation of a Constitution 127
Purposive Interpretation of Statutes 136
Purposive Interpretation and Judicial Discretion 146
Purposive Interpretation and Intentionalism
(or Subjective Purpose) 148
Purposive Interpretation and Old Textualism 149
Purposive Interpretation and New Textualism 152
Chapter Six: The Development of the Common Law 155
The Common Law as Judge-Made Law 155
Judicial Lawmaking 157
Overruling Precedent 158
Chapter Seven: Balancing and Weighing 164
The Centrality of Balancing and Weighing 164
Balancing and Categorization 166
The Nature of Balancing 167
Types of Balancing 170
The Advantages of Balancing 172
Critique of Balancing and Response 174
The Scope of the Balancing 175
Chapter Eight: Non-Justiciability, or "Political Questions" 177
The Role and Limits of Justiciability 177
Types of Justiciability 178
Justiciability and Public Confidence 186
Chapter Nine: Standing 190
Standing and Adjudication 190
Standing and Substantive Democracy 194
Chapter Ten: Comparative Law 197
The Importance of Comparative Law 197
The Influence of Comparative Law 198
Comparative Law and Interpretation of Statutes 199
Comparative Law and Interpretation of the Constitution 200
Use of Comparative Law in Practice 202
Chapter Eleven: The Judgment 205
Formulating the Judgment and Realizing the Judicial Role 205
The Judge as Part of the Panel 208
PART THREE: THE RELATIONSHIP BETWEEN THE COURT AND THE OTHER BRANCHES OF THE STATE 213
Chapter Twelve: Tension among the Branches 215
Constant Tension 215
The Tension Is Natural and Desirable 216
The Attitude toward the State 217
Public Officials as Trustees 220
Duties of the Individual toward the State 222
Chapter Thirteen: The Relationship between the Judiciary and the Legislature 226
The Uniqueness of the Legislature 226
Judicial Review of Legislation 229
Judicial Review of Nonlegislative Decisions of the Legislature 231
The Dialogue between the Judiciary and the Legislature 236
Chapter Fourteen: The Relationship between the Judiciary and the Executive 241
The Scope of Review 241
Judicial Interpretation and Executive Interpretation 246
Executive Reasonableness 248
Proportionality 254
PART FOUR: EVALUATION OF THE ROLE OF A JUDGE IN A DEMOCRACY 261
Chapter Fifteen: Activism and Self-Restraint 263
Definition of the Terms 263
Some Definitions and Their Critiques 267
Definition of Activism and Self-Restraint 270
The Desirability of Activism or Self-Restraint 279
Chapter Sixteen: The Judicial Role and the Problem of Terrorism 283
Terrorism and Democracy 283
In Battle, the Laws Are Not Silent 287
The Balance between National Security and Human Rights 291
Scope of Judicial Review 298
Chapter Seventeen: The Role of the Judge: Theory, Practice, and the Future 306
Theory 306
Reality 310
The Future 310
Index 317
