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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.
- Sales Rank: #1937852 in Books
- Brand: Brand: Princeton University Press
- Published on: 2006-07-23
- Original language: English
- Number of items: 1
- Dimensions: 1.10" h x 6.52" w x 9.20" l, 1.40 pounds
- Binding: Hardcover
- 368 pages
- Used Book in Good Condition
Review
"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
From the Back Cover
"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
About the Author
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.
Most helpful customer reviews
5 of 5 people found the following review helpful.
The credo of Israeli's leading judicial figure
By Shalom Freedman
Aharon Barak recently retired from the position of Chief Justice of the Israeli Supreme Court. In this position he moved the Court to a more activist role than it had played in the past. And his critics charge him with having impinged upon the powers of both Executive and Legislative branches. Barak of course rejects these charges and maintains that one of the most important functions of the Judiciary in a Democracy is to preserve a separation of Powers.
Barak in this book speaks over and over again about the importance of 'objectivity' and 'neutrality' in judicial decision- making. But his major thrust is in explaining how he believes the Judicial branch must work both to preserve a Democracy's fundamental Constitutional values, and at the same time respond to social change in an appropriate way. The Law as he understands it is an ongoing developing system which must be in tune with the fundamental transformations a Society is undergoing.
Again Barak has been fiercely attacked by both sides of the poltiical spectrum in Israel. At the same time he has been applauded internationally as one of the finest judicial minds working today.
My own personal bias is with those who feel the Israeli Supreme Court has in the past few years gone beyond its own constitutional authority. I would fault it for not upholding certain fundamental rights , for instance freedom of worship in regard to Jewish Prayer on the Temple Mount.
But I also realize what Barak here writes frequently about the Judge's dilemna of being under conflicting imperatives, of needing to weighh for instance the right of a group for freedom of worship, against considerations of State Security. Again I have been time and again disappointed by Barak's rulings on many cases but do understand that his judgments are never taken out of narrow prejudice(Something he writes about as clearly forbidden to judges) but rather out of his own complex judgment clearly rooted in fundamental values.
Barak talks about human rights and civil rights as important elements in judicial consideration.
The question of the true value of his legacy to the future of Israeli democracy is one which will continue to be debated in the years ahead. But the value of this present work as clear expression of his own judicial philosophy and faith is undeniable.
0 of 0 people found the following review helpful.
Thoughtful book from Israel's foremost judicial authority
By R. Cohen-almagor
The role of a judge in a democracy is one of Barak's favourite topics. He wrote and lectured on this subject many times, and in this book he compiled the main arguments, the result of years of careful thinking and of practicing law at the Israel Supreme Court.
Israel does not have a constitution or a Bill of Rights to defend basic rights and freedoms. Israel is a young democracy, poorly governed; it is riddled with corruption, and its existence has been under constant threat. You cannot really expect a country to be "normal" when once in a while it fights a war, and since 1987, with small intervals, it is subjected to constant terror attacks. The Supreme Court, under the leadership of Aharon Barak, was asked many times to interfere and to mete out justice to defend basic human rights. All the hot potatoes that no one else could not or did not wish to resolve came before the Court to decide. I often spoke with Justices of the Court who told me that they would rather not deal with those problematic, heated issues, but they had no other choice. Someone had to do the job, and in Israel, this "someone" is the High Court of Justice. The situation may change once Israel will be able to agree on a written constitution. Presently, Israel and the Palestinians living under Israeli occupation need to rely on the Court to find counsel and help in sorting grievances vis-à-vis the government, the army, and administration. Professor Barak, Israel's leading legal scholar, explains this delicate role, its challenges and rational, in this thoughtful book.
4 of 10 people found the following review helpful.
The Judge Who Destroyed Democracy would be more Apt
By T. Harris
I am appalled at the egregious mis-use above of a complimentary sentence from Judge Richard Posner's blistering review of both Aharon Barak's book and his ideology and behavior on the Court in The New Republic [...].
No one, not Judge Posner and certainly not I, disagrees that Aharon Barak is a very bright man; furthermore, his effective imposition of his own left-wing "politically correct" Weltanschauung on the Israeli public and its democratically elected representatives would undoubtedly earn him the undying admiration of the left-wing Norwegians who choose the recipients of the Nobel prize. Thus, as Posner wrote, were there a Nobel prize in law, Barak would likely be an early recipient.
And yet Posner entitles his review of this book "Enlightened Despot" for a very good reason, as is evident by reading the entire review. I cannot describe Barak's usurpation of power from the elected legislative branch nearly as well as Posner, and refer all to his article. But as a US-trained attorney admitted to both the New York and Israeli bar associations, I can't agree strongly enough with Judge Posner's conclusions that -- absent any justification under law or precedent in Israel or, to my knowledge, elsewhere, and absent a formal constitution, Judge Barak decided that we less enlightened citizens of Israel would henceforth be subject to HIS "rule of law" -- i.e., the vicissitudes of what he and the colleagues he picked and formed in his image deem to be "reasonable" in a particular case at a particular time. I.e., Barak subjected duly passed laws and administrative decisions not merely to the "reasonable man" test, but the "reasonable enlightened man" test as determined in the sole discretion of Aharon Barak and his fellow Ivory Tower dwelling, self-perpetuating Supreme Court Justices.
And democracy be damned.
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