The Judge In a Democracy (ebook)

Argumento de The Judge In a Democracy (ebook)

"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

"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

"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

"This book offers a plethora of intriguing examples of practical reason in the service of an eclectic mix of justice ethically conceived and of law as a body of rules and principles that bind us even when power is lacking to enforce those norms. Few jurists in the world have regularly confronted the kinds of seemingly impossible conundrums that Barak has with amazing frequency managed to turn into surprisingly agreeable outcomes."--Laurence Tribe, Harvard University, author of American Constitutional Law

"A remarkable work by a remarkable jurist. A most important contribution to our understanding of the role of a judiciary in a democracy, this book will be of wide appeal to judges, legal scholars, and law students, as well as political theorists and others interested in the law and legal institutions."--Frank Iacobucci, retired Justice of the Supreme Court of Canada

"This book provides a candid and elaborate account by a leading supreme court justice on his craft of judging. Aharon Barak discusses some of the most important (and controversial) jurisprudential questions and demonstrates the ways in which he has put his convictions on these matters into action in shaping Israeli jurisprudence. As such, The Judge represents a valuable encounter of legal theory and judicial practice. Judges and scholars associated with new constitutional courts will find the book instructive. American judges and scholars, in turn, will see it as a powerful antithesis to the approach of another prominent jurist, Justice Antonin Scalia of the United States Supreme Court."--Hanoch Dagan, Tel-Aviv University Faculty of Law School, author of The Law and Ethics of Restitution

"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

"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

"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

"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, Trial0Introduction 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