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The Judge in a Democracy
Aharon Barak

Book Description | Reviews
Chapter 1 [HTML] or [PDF format]

TABLE OF CONTENTS:

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

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File created: 7/11/2014

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