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.
The credo of Israeli's leading judicial figure 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.
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