The Judge in a Democracy

Erscheinungsjahr 2008
ISBN: 978-0-691-13615-8
Verlag: Princeton University Press

Buch, Englisch, 360 Seiten, Paperback, Format (B × H): 156 mm x 234 mm, Gewicht: 606 g

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.

Autoren/Hrsg.

Barak, Aharon

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht
• Rechtswissenschaften Öffentliches Recht Staats- und Verfassungsrecht
• Sozialwissenschaften Politikwissenschaft Politische Systeme Demokratie

Inhaltsverzeichnis

Introduction 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