The Judge in a Democracy - Softcover

Barak, Aharon

Softcover

ISBN 10: 0691136157 ISBN 13: 9780691136158

Verlag: Princeton University Press, 2008

Inhaltsangabe

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.

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"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

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The Judge in a Democracy

By Aharon Barak

Princeton University Press

Copyright © 2006 Princeton University Press
All right reserved.
ISBN: 978-0-691-13615-8

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, whether the 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...

Details zur Ausgabe

• Verlag: Princeton University Press
• Erscheinungsdatum: 2008
• Sprache: Englisch
• ISBN 10: 0691136157
• ISBN 13: 9780691136158
• Einband: Taschenbuch
• Anzahl der Seiten: 356
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: gpsr@libri.de; gpsr@libri.de; ; Europaallee 1; Bad Hersfeld; 36244; Deutschland