The Judge in a Democracy

Front Cover
Princeton University Press, 2006 - Law - 332 pages
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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.

  

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Contents

Chapter
3
Chapter
20
Chapter Three
101
Chapter Four
113
Chapter Five
122
Purposive Interpretation of Statutes
136
Purposive Interpretation and Judicial Discretion
146
Purposive Interpretation and New Textualism
152
Chapter
197
Chapter Eleven
205
PART THREE THE RELATIONSHIP BETWEEN
213
Chapter Thirteen
226
Chapter Fourteen
241
Executive Reasonableness
248
Proportionality
254
Chapter Fifteen
263

Overruling Precedent
158
Chapter Seven
164
Types of Balancing
170
Chapter Eight
177
Justiciability and Public Confidence
186
Chapter Nine
190
Definition of Activism and SelfRestraint
270
The Desirability of Activism or SelfRestraint
279
Chapter Seventeen
306
Index
317
Copyright

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About the author (2006)

Aharon Barak is a faculty member at the Interdisciplinary Center (IDC) Herzliya, Israel, and a visiting professor at Yale Law School. In 1975 he was appointed Attorney General of the State of Israel, becoming Justice of the Supreme Court of Israel in 1978 and serving as President from 1995 until his retirement in 2006. He has also served as a lecturer, professor and Dean of the Law School at the Hebrew University of Jerusalem.

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