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The Judge in a Democracy
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 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 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.
- GenresLaw
368 pages, Paperback
First published January 1, 2006
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64 people want to read
About the author
Aharon Barak
19 books4 followersAharon Barak (Hebrew: אהרן ברק) is an Israeli lawyer and jurist who served as President of the Supreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of Israel from 1978 to 1995, and before this as Attorney General of Israel from 1975 to 1978.
Barak was born with the name of Erik Brick in Kaunas, Lithuania in 1936. Having survived the Holocaust, he and his family later immigrated to Mandatory Palestine in 1947. He studied law, international relations and economics at the Hebrew University of Jerusalem, and obtained his Bachelor of Laws in 1958. Between 1958 and 1960, he was drafted into the Israeli military.
From 1974 to 1975, Barak was dean of the law faculty of the Hebrew University of Jerusalem. Barak is currently a law professor at Reichman University in Herzliya, and has taught at institutions including Yale Law School, Central European University, Georgetown University Law Center, and the University of Toronto Faculty of Law.
Barak was born with the name of Erik Brick in Kaunas, Lithuania in 1936. Having survived the Holocaust, he and his family later immigrated to Mandatory Palestine in 1947. He studied law, international relations and economics at the Hebrew University of Jerusalem, and obtained his Bachelor of Laws in 1958. Between 1958 and 1960, he was drafted into the Israeli military.
From 1974 to 1975, Barak was dean of the law faculty of the Hebrew University of Jerusalem. Barak is currently a law professor at Reichman University in Herzliya, and has taught at institutions including Yale Law School, Central European University, Georgetown University Law Center, and the University of Toronto Faculty of Law.
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April 17, 2023
If you want to understand what the current judiciary crisis in Israel is about, read this book. I don't think I have read anything written after more reflection than this.
Aharon Barak, described by some of his peers as a legal genius, lays out in a clear chapters, crisscrossed with references, how a judge in a democracy should behave, but above all, judge.
I shall especially remember that :
First, yes, the judge does make law, inasmuch as he/she constantly adapts the law to prevailing social values, unless the law perfectly and seemlessly applies to a case, which almost never happens.
And yes, the judge also has a duty to make sure the law is abiden by in legislative and executive circles, all the more so in the very imperfect democracy of Israel. A duty which goes unnoticed in countries where institutional forbearance guarantees that politicians to abide by the rules.
The most uncanny part is where Aharon Barak foretells how much a supreme court will be hated when more ruthless politicians will want to free themselves from its overbearing watch.
Compulsory reading indeed.
Aharon Barak, described by some of his peers as a legal genius, lays out in a clear chapters, crisscrossed with references, how a judge in a democracy should behave, but above all, judge.
I shall especially remember that :
First, yes, the judge does make law, inasmuch as he/she constantly adapts the law to prevailing social values, unless the law perfectly and seemlessly applies to a case, which almost never happens.
And yes, the judge also has a duty to make sure the law is abiden by in legislative and executive circles, all the more so in the very imperfect democracy of Israel. A duty which goes unnoticed in countries where institutional forbearance guarantees that politicians to abide by the rules.
The most uncanny part is where Aharon Barak foretells how much a supreme court will be hated when more ruthless politicians will want to free themselves from its overbearing watch.
Compulsory reading indeed.
Displaying 1 of 1 review