The Judge in a Democracyby Aharon Barak
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
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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 textsfor example, statutes and constitutionsin 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.
"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
Charles Gardner Geyh
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The Judge in a Democracy
By Aharon Barak Princeton University Press
Copyright © 2006 Princeton University Press
All right reserved.
Chapter One BRIDGING THE GAP BETWEEN LAW AND SOCIETY
The law regulates relationships between people. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes the change is drastic and easily identifiable. Sometimes the change is minor and gradual, and cannot be noticed without the proper distance and perspective. Law's connection to this fluid reality implies that it too is always changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. In most cases, however, a change in the law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law.
These changes in the law, caused by changes in society, are sometimes appropriate and sufficient. The legal norm is flexible enough to reflect the change in reality naturally, without the need to change the norm and without creating a rift between law and reality. For example, the legal prohibition against possessing weapons works well, without the need for change, whetherthe weapon is an antique pistol or a sophisticated missile. Often, however, the legal norm is not flexible enough, and it fails to adapt to the new reality. A gap has formed between law and society. We need a new norm. For example, the norm that the owner of a carriage owes a duty of care to a pedestrian may be flexible enough to solve the problem of the duty of care that an automobile owner owes to a pedestrian. However, it is not flexible enough to solve the problem of industrialization, urbanization, and thousands of cars traveling on the streets, a situation in which proving negligence becomes more and more difficult. We need a change in law to move from negligence-based liability to strict liability in the context of an insurance regime. When changes occur in social reality, many of the old legal norms fail to adapt. The tort of negligence, which can generally deal with various changes in conventional risks, will likely prove insufficient to address an atomic risk. We would need a formal change in the norm itself.
The life of law is not just logic or experience. The life of law is renewal based on experience and logic, which adapt law to the new social reality. Indeed, there are always changes in law, caused by changes in society. The history of law is also the history of adapting law to life's changing needs. The legislative branch bears the primary role in making conscious changes in the law. It has the power to change the legislation that it itself created. It has the power to create new legal tools that can encompass the new social reality and even determine its nature and character. In the field of legislation, the legislature is the senior partner. The role of the judge is secondary and limited.
CHANGES IN LEGISLATION AND IN ITS INTERPRETATION
The judge has an important role in the legislative project: The judge interprets statutes. Statutes cannot be applied unless they are interpreted. The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life's changing reality without changing the statute itself. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs. The court fulfills its role as the junior partner in the legislative project. It realizes the judicial role by bridging the gap between law and life. I noted as much in a case that addressed, among other things, the question of whether Israel's civil procedure regulations recognized a class action lawsuit against the state. In answering in the affirmative, I noted:
We are concerned with the existing law, which must be given a new meaning. This is the classic role of the court. In doing so, it realizes one of its primary roles in a democracy, bridging the gap between law and life. The case before us is a simple example of the many situations in which an old tool does not fit a new reality, and the tool therefore must be given a new meaning, in order to address society's changing needs. It is no different from the many other situations in which courts today are prepared to give a dynamic meaning to old provisions, in order to adapt them to new needs.
Here is an additional example: Israeli tort law is based on the Tort Ordinance, passed at the end of the period of the British Mandate in Palestine (1947). According to the Ordinance, if an act of negligence causes a person's death, his dependents are entitled to compensation from the tortfeasor. The Tort Ordinance defines dependents to include "husband, wife, parents, and children." This provision was taken from the English statute, passed in 1846. There is no doubt that the British mandatory legislature intended to refer to a husband and wife who were lawfully married. However, what of the common law wife who has lived with her common law husband for many years and even given birth to a daughter with him? The common law husband becomes the victim of a deadly work-related accident; is the common law wife entitled to damages from the tortfeasor for loss of her dependency? When the question came before the Israeli Supreme Court, at a time when the phenomenon of common law marriages was prevalent, the Court answered in the affirmative. In my opinion, I wrote:
I am prepared to assume that the phrase "wife" in the 1846 English statute refers to a married woman. However, that does not mean that it is the meaning that an English court would give it today. It certainly does not mean that it is the meaning that we, in the State of Israel, would give the phrase "Husband, Wife." Much water has flowed through the English Thames and the Israeli Jordan since 1846. As judges in Israel, our duty is to give the phrase "Husband, Wife" the meaning assigned to it in Israeli society, and not in English Victorian society of the mid-nineteenth century ... that is mandated by our interpretive rules.
Here is an additional example from public law: The Defense Regulations (State of Emergency) enacted in 1945 by the British government continue to apply in Israel. Among other things, these regulations establish military censorship of publications in Israel. The military censor is authorized to ban publications that it deems likely to harm state security, public security, or the public peace. The Supreme Court has given this provision a dynamic interpretation, based on the fundamental principles of Israeli law. In my opinion, I noted that
The meaning that should be given to the Defense Regulations in the State of Israel is not identical to the meaning that they might have taken on during the period of the Mandate. Today, the Defense Regulations are part of the laws of a democratic state. They must be interpreted against the background of the fundamental principles of the Israeli legal system.
We held that the military censor may prevent publication only if the uncensored publication would create a near certainty of grave harm to state security, public security, or public peace.
Characteristic of these examples and many others is the change that has taken place in the law without any change occurring in the language of the legislation. Such a change is made possible by the change in the court's interpretation. It is made possible by the court's recognition of its role to bridge the gap created between the old statute and the new social reality. The court did not say, "Adapting the law to the new reality is not my role. It is the role of the legislature. If the legislature does not do anything, it bears the responsibility." The court viewed it as its own responsibility- complementary to the responsibility of the legislature-to give the old law a new meaning that suited the social needs of modern Israel.
Statutory interpretation will facilitate the statute's adaptation to changes in the conditions of existence only if the system of interpretation allows for that. Such a system is the system of purposive interpretation. It is predicated on giving a dynamic interpretation to the statute, to allow it to fulfill its design. In one case, I addressed the way in which dynamic interpretation works:
The meaning that should be given to a phrase in a statute is not fixed for eternity. The statute is part of life, and life changes. Understanding of the statute changes with changes in reality. The language of the statute remains as it was, but the meaning changes along with "changing life conditions" ... the statute integrates into the new reality. This is how an old statute speaks to the modern person. This is the source of the interpretive approach that "the statute always speaks" ... interpretation is a regenerative process. Old language should be filled with modern content, in order to minimize the gap between law and life. It is therefore correct to say, as Radbruch does, that the interpreter may understand the statute better than the author of the statute, and that the statute is always wiser than its creator ... the statute is a living creature; its interpretation must be dynamic. It must be understood in a way that integrates and advances modern reality.
Of course, it is not always possible to bridge the gap between law and life by giving a new and modern meaning to an old statute. Sometimes the judge lacks the power to bridge the gap between the old language of the statute and society's new reality. In such a case the judge must set aside his work tools. The judge may not act against the law. He can only hope that the legislature will do its job and repeal the old statute. The judge, as a faithful interpreter, cannot achieve such a result. For example, the court could not entirely repeal the military censorship of publications or, for that matter, civilian censorship of plays and movies, also created by the British mandatory regime. Such repeal required legislative intervention. Indeed, following a decision by the Supreme Court restricting civilian censorship, the legislature repealed censorship of plays. Censorship of movies, like military censorship, still exists. The judge lacks the power to deliver that change.
In this context, Guido Calabresi's proposition is noteworthy. He suggested that courts should be able to repeal legislation that has become obsolete. Of course, Calabresi's proposition cannot be implemented unless the legislature explicitly authorizes courts to repeal obsolete legislation. I personally do not think that is the proper solution to a painful problem. The right way is not to rely on judges to repeal obsolete laws but rather for the legislature to do so. Indeed, the Israeli legislature occasionally collects pieces of old legislation that are no longer necessary and repeals them. That is the right way to proceed.
CHANGES IN SOCIETY AFFECTING THE CONSTITUTIONALITY OF STATUTES
Social changes sometimes lead to a situation in which a statute passed in the context of a certain reality and that was constitutional at the time of its enactment becomes unconstitutional in light of a new social reality. Of course, the court will do everything it can to give the old statute a new meaning, in order to preserve its constitutionality. The limitations of interpretation, however, do not always allow that to happen. Where interpretation fails to give an old law a new meaning, the question may arise as to whether, in light of the social changes, the old statute is constitutional. Even though the court is not authorized to give a new meaning to an old statute, if such meaning deviates from the system's rules of interpretation, the court may declare the old statute, with the old meaning, unconstitutional. As an example, in 1986 the United States Supreme Court held that a statute criminalizing consensual homosexual relations between adults was constitutional. Twenty years passed. The United States Supreme Court overturned its prior holding. It held that the Constitution bars legislation criminalizing consensual sexual relations between adults. The difference between the two decisions did not reflect a constitutional change that took place during that period. Rather, the change that occurred was in American society, which learned to recognize the nature of homosexual relationships and was prepared to treat them with tolerance. Justice D. Dorner of the Israeli Supreme Court discussed this social change in a case that raised the issue of employee benefits for same-sex partners:
In the past, intimate relations between members of the same sex-relations considered to be a sin by monotheistic religions-were a criminal offense ... this treatment has gradually changed. Legal scholars have criticized the definition of a homosexual relationship as criminal and discrimination against homosexuals in all areas of life ... movements fighting for equal rights for homosexuals have sprung up. Today, the trend-which began in the 1970s-is to a liberal treatment of a person's sexual tendencies, which are viewed as a private matter.... Israeli law concerning homosexuals reflects the social changes that have taken place over the years.
CHANGES IN THE COMMON LAW
The court may not repeal an obsolete statute. It may, however, repeal a common law holding that has become obsolete. It may change even a non-obsolete precedent if it does not suit today's social needs. Indeed, judges created the common law. In doing so, they sought to provide a solution to the social needs of their time. As these needs change, judges must consider whether it is appropriate to change the judicial precedent itself, by expanding or restricting the existing case law or overturning an old precedent. Sometimes the new social reality necessitates creating new case law to resolve problems that did not arise at all in the past, where the goal of the new case law is to bridge the gap between law and the new social reality. Justice Agranat expressed this idea well:
Where a judge is presented with a set of facts based in new life conditions, for which the current law was not designed, the judge should review anew the logical premise on which the case law, created in a different background, is based. The goal is to adapt the case law to the new conditions, either by expanding or restricting it, or, where there is no other way, completely to abandon the logical premise which served as the basis for the existing law and to replace it with a different legal norm-even if the legal norm was previously unknown.
Within the common law project, the judge is the senior partner. The judge creates the common law and bears responsibility for making sure that it fulfills its role properly. The legislature is the junior partner, the outside observer, who generally intervenes only when asked to correct a particular issue or replace the entire legal regime from a common law regime to a statutory regime.
CHANGE AND STABILITY
The Dilemma of Change
The need for change presents the judge with a difficult dilemma, because change sometimes harms security, certainty, and stability. The judge must balance the need for change with the need for stability. Professor Roscoe Pound expressed this well more than eighty years ago: "Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still."
Excerpted from The Judge in a Democracy by Aharon Barak
Copyright © 2006 by Princeton University Press. Excerpted by permission.
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What People are Saying About This
Hanoch Dagan, Tel-Aviv University Faculty of Law School, author of "The Law and Ethics of Restitution"
Frank Iacobucci, retired Justice of the Supreme Court of Canada
Laurence Tribe, Harvard University, author of "American Constitutional Law"
Meet 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.
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