Bridging the gap

The Judge in a Democracy, by AHARON BARAK, Princeton University Press.

In every political campaign, Americans hear a constant condemnation of activist judges, as if judges, like witches on Halloween, swoop across the country at night looking for traditional values to upset. Defining "activist judge," however, is not a simple matter. Often, it depends on whose ox was gored. Is it activist for federal courts to exercise jurisdiction over the Terri Schiavo case after several state court decisions granted her husband custody over her, and when family matters have always fallen under state jurisdiction? (1) Is it activist when a trial-level federal judge holds the administration's electronic surveillance programs unconstitutional when most legal scholars and political commentators note the difficulty of deciding because of the scarcity of facts surrounding these programs? (2) Answers to these and similar questions probably would be influenced as much by an individual's politics as his/her knowledge about the American legal system.

To be sure, there are legitimate areas of concern when the judiciary performs its constitutionally mandated task of interpreting statutes passed by Congress. It is all very well to recite the American mantra that Congress makes the laws, the courts interpret them, and the executive branch sees to it that they are enforced, but what does this really mean? This conundrum is one of the many questions Justice Aharon Barak, who in September 2006 stepped down after serving 28 years on the Israeli Supreme Court, the last 11 as its president, addresses in his book, The Judge in a Democracy.

Aharon Barak was born on September 16, 1936, in Lithuania. As a child, he was smuggled out of the Kovno Ghetto in a suitcase and, as he puts it, "miraculously" survived the war with the help of a Lithuanian family. In 1947, he and his family immigrated to Israel. From an early age, Barak's intellectual curiosity gravitated toward the law. He studied law, economics and international relations at the Hebrew University in Jerusalem and earned his M.A. in law in 1958 and a doctorate five years later. Eventually, his devotion to the field earned him a professorship in law at the Hebrew University of Jerusalem and, in 1978, the opportunity to serve as a justice of the Supreme Court of Israel and, eventually, its president. Barak, who espouses the merits of a proactive judiciary to safeguard democracy, transformed Israel's high court into an apolitical counterweight to the Knesset and prime minister through the court's interpretations of Israel's unofficial constitution, the Basic Law. In 1999, he won the Justice in the World prize from the International Association of Judges.

It is not easy to write exhaustively and intelligently about the role of judges and the judiciary, but Barak makes a valiant attempt. His book seems to cover every facet of the role of a judge. It is divided into four main sections: the role of the judge, the means of realizing the judicial role, the relationship between the courts and the other branches of the state, and an evaluation of the role of a judge in a democracy. He begins with his theme: "I claim that the court has an important role in bridging the gap between law and society, and in protecting the fundamental values of democracy, with human rights at the center." He admits that there are those who do not agree with his expansive view of a judge's responsibility, and wields logic and specific case examples to refute their criticisms. He cites the revolutionary decision of the British jurist Lord Mansfield in 1772 to free an escaped American slave as a prime example of a decision that recognized an individual's human rights as a fundamental value at a time when slavery was the norm and property rights ascendant.

Barak writes that there are five values and principles that the laws (and therefore the judges) of a substantive democracy should promote: tolerance, good faith, justice, reasonableness and public order. He views tolerance as the quality that allows societies to protect ideas and the ability to compromise. He believes that good faith is the foundation of openness and flexibility, that justice is the ultimate goal of a substantive democracy and that it provides a check on judicial decision-making. If a result does not seem just, the judge must start again. The guide should always be Deuteronomy 16:20--[TEXT NOT REPRODUCIBLE IN ASCII], "justice, justice shall you pursue."

His discussion of reasonableness is particularly valuable. All legal professionals will recognize that the concept of reasonableness, which permeates the common law, is not easy to define or apply. Barak states,

    What then is a reasonable action (or decision)? According to my
  view, it is the action (or decision) that locates the relevant values
  and balances them. The balance is determined by the weight of the
  values. This weight is determined by the attitude of society (or of
  the legal community) regarding the relative importance of the values.
  This attitude is always in flux. The attitudes of society are
  expressed by the judge using his (limited) discretion.