Judge in a Democracy

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.

• 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

"Aharon Barak [states] that it is precisely because judges are not politicians that they are the right people to undertake the constitutional role of ensuring that the legislature and the executive comply with legal requirements... Barak points out that tension between the courts and other branches of government is natural and it is desirable. If the courts' decisions were always welcomed by the executive, judges would not be doing their job properly. Barak's thesis is ... of fundamental importance."--David Pannick, Times of London "Learned and perceptive, this work deserves the attention of any reader interested in the role that judges play, and ought to play, in a democratic republic."--Charles Gardner Geyh, Trial "Barak sets out in a systematic way, the questions, dilemmas and solutions he has adopted as a judge. He notes the principles that should guide judges in a democratic society, when faced with constitutional questions that have implications over and above the specific concerns of the parties to a legal disput... [E]ngaging and intellectually stimulating... The Judge in a Democracy should be a must read in any course or research on judicial and constitutional politics."--Menachem Hofnung, Law and Politics Book Review "Barak argues for striking a balance between the protection of human rights and the preservation of national security interests, but is most adamant in insisting that some degree of security might have to be sacrificed in order to preserve a nation's democratic essence... Barak has done much to humanize the role of the judge. He describes the process of interpreting law as a profoundly human one, in which the adjudicator is constantly balancing, testing, agonizing."--Benjamin Soskis, Forward "The Judge in a Democracy explains that there was nothing in either the US or the Israeli constitutions allowing judges to strike down acts of the legislature. Even so, he says, the courts in both countries have held that judicial review of legislation is implied by interpretation of the constitution."--Joshua Rozenberg, Daily Telegraph "Presenting a remarkably balanced view of the power and limitations of judges, President Barak offers a comprehensive yet humble account of the role of the judiciary within a democratic society."--Harvard Law Review "Barak's writing is not merely clear, it exudes the logical structure that the modern law endeavors, and often claims, to exhibit... For the professional of law ... Barak's book may serve as the beginning of a revealing look at the social role of the law."--Mathieu Deflem, European Legacy