The judge in a democracy

355 Pages·2008·1.184 MB·English

by  Israel. Supreme Court.;Barak, Aharon

THE JUDGE IN A DEMOCRACY
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THE JUDGE IN A DEMOCRACY
Aharon Barak
PRINCETON UNIVERSITY PRESS PRINCETON AND OXFORD
Copyright © 2006 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press, 6 Oxford Street,
Woodstock, Oxfordshire OX20 1TW
All Rights Reserved
Second printing, and first paperback printing, 2008
Paperback ISBN: 978-0-691-13615-8
The Library of Congress has cataloged the cloth edition of this book as follows
Barak, Aharon.
The judge in a democracy / Aharon Barak.
p. cm.
Includes index.
ISBN-13: 978-0-691-12017-1 (hardcover : alk. paper)
ISBN-10: 0-691-12017-X (hardcover : alk. paper)
1. Judges. 2. Judicial process. 3. Law—Interpretation and construction.
4. Judicial power. 5. Judges—Israel. 6. Judicial power—Israel.
7. Judge-made law—Israel. 8. Courts—Israel. 9. Israel.
Bet ha-mishpaòt ha-’elyon. 1. Title.
K2146.B37 2006
347(cid:2).014—dc22
2005028578
British Library Cataloging-in-Publication Data is available
This book has been composed in Galliard
Printed on acid-free paper. ∞
press.princeton.edu
Printed in the United States of America
3 5 7 9 10 8 6 4 2
Contents
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
vi CONTENTS
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
CONTENTS vii
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
viii CONTENTS
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
Introduction
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 them-
selves: 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.
Certainly it is my role to decide cases according to the law of my
legal system. But is that all that can be said about my role? Are
there criteria for assessing the quality of my work as a judge?
Certainly no such assessment should be based on the aesthetic
quality of my writing.2 Nor should the criterion be the number of
sources I cite in my decisions. But then what would be a meaning-
ful criterion? What is my role, and do I even have a role beyond
merely deciding the dispute before me according to the law? These
questions occupy me daily as I enter the courtroom and take my
seat on the bench. In my twenty-six years of service on the
Supreme Court of Israel, I have written thousands of opinions. But
am I a “good” judge?
1See generallyMichael Kirby, “Judging: Reflections on the Moment of Decision,”
18 Austl. B. Rev. 4 (1999); Beverley M. McLachlin, “The Charter: A New Role
for the Judiciary?” 29 Alta. L. Rev. 540 (1991); Beverley M. McLachlin, “The
Role of the Court in the Post-Charter Era: Policy-Maker or Adjudicator?” 39 U.
N.B. L.J.43 (1990); Georghios M. Pikis, “The Constitutional Position and Role
of the Judge in a Civil Society,” Commonwealth Jud. J., Dec. 2000, at 7.
2Although aesthetics are important, as Richard Posner’s discussion of Justice
Cardozo indicates. SeeRichard A. Posner, Cardozo: A Study in Reputation10, 42,
143 (1990).