The Judge in a Democracy
Aharon Barak
Language: English
Pages: 368
ISBN: 0691136157
Format: PDF / Kindle (mobi) / ePub
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.
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of the Supreme Court in the New Democracy 13–15 (2001) (unpublished manuscript, on file with the Harvard Law School Library). 12 See The Global Expansion of Judicial Power, supra p. 13, note 28 at 1–5. 9 PROTECTING THE CONSTITUTION AND DEMOCRACY 23 the power of the court in a democracy but rather to increase the protection of democracy and human rights. An increase in judicial power is an inevitable result, because judicial power is one of many factors in the democratic balance. Each branch
following provision (Section 3): “If the status quo on religious issues is violated [by judicial ruling—A.B.], the parties agree to correct the violation through appropriate legislation.” The legality of this agreement was raised before the Supreme Court and was met with sharp criticism by each judge in the panel hearing the case. In my dissent, I wrote that, in my opinion, this agreement violated the separation of powers. I added that: Section 3 of the coalition agreement destroys the bridge
tolerance. This means tolerance for the acts and beliefs of others. It also means tolerance for intolerance. In a pluralistic society, tolerance is the unifying force that allows people to live together. Indeed, tolerance constitutes both an end 105 Eskridge, supra p. 57, note 94 at 1018. 64 CHAPTER TWO and a means. It constitutes a social goal in itself, which every democratic society should aspire to realize. It serves as a means and a tool for balancing between other social goals and
Constitution,” 47 UCLA L. Rev. 491, 519 (1999) (“I am reluctant to subscribe to any theory of constitutional law that downplays the significance of the Court’s power over the law of the Constitution”); Neal Kumar Katyal, “Legislative Constitutional Interpretation,” 50 Duke L.J. 1335, 1336 (2001) (“The structural variances between the courts and Congress can be analyzed profitably to develop a theory of interbranch interpretation”); William D. Popkin, “Foreword: Nonjudicial Statutory
Virtues’: Rethinking the Judicial Function,” 114 Harv. L. Rev. 1833, 1852–76 (2001) (surveying U.S. state court practices such as issuing advisory opinions, deciding political questions, and engaging in judicial administration). 29 xviii INTRODUCTION statutes. A legal system is not a confederation of laws. Legal rules and principles together constitute a system of law whose different parts are tightly linked. The judge is a partner in creating this system of law. The extent of this
