The Role of a Judge in a Democracy
Barak, Aharon, Judicature
The judge's job is to achieve a delicate balance between the needs of the public and the rights of the individual.
In Hebrew, Jerusalem means the city of peace. But peace seems quite remote. By now there is almost war. What is our role as judges these days? Cicero is known to say that:
"Silent enim leges inter arma."
The laws are silent amidst the clash of arms, or "when the cannons fire, the muses are silent."
This is not our tradition in Israel. The struggle for peace-the struggle against terror-is to occur "inside" the law, and through the tools that are lawfully approved as appropriate for a democratic state. And when law is in operation, the court is in operation. The questions are raised: What is our role, as judges, in a democracy generally, and in times of tensions specifically?
Let me make some observations, reflecting my own experience as a judge of our Supreme Court for more than 26 years. It is my belief that the duty of a judge is to protect the individual from abusive state action, and to contribute to the meaning of citizenship and civic entitlement. In performing this duty, the court must, inevitably, be in conflict with the other branches, especially so in modern times where more and more political questions present themselves as legal questions, and are brought to be adjudicated before the courts, and especially so where the scope of judicial review over the other branches is wider than in the past. A wider judicial review carries with it wider interest in the courts, and widening tension between the court and the other branches of government. If there will be no conflict and no tension, the court will not be fulfilling its constitutional role. Thus, criticism there will always be. Judges will always be attacked by politicians and the sectors of the public that are unhappy with the court's decisions. The attack may focus on individual results; the attack may focus on trends (too much activism; too much restraint). The attack may be polite; the attacks may be brutal and sometimes even violent. They may, consciously or unconsciously, erode the legitimacy of the court. They may affect the independence of the judiciary.
What can judges do about it? They should not abandon their role as protectors of human rights in a free and democratic society. They should not defer to the other branches when it comes to the question of the proper balance between competing constitutional values. They should not be apologetic for their non-representative character. Courts are not representative bodies, and it will be a tragedy if they become representative. Their role is to give effect to the deep values of their society as expressed in its basic documents, its traditions, and its history. Their role is not to express the mood of the day. Judges should not be defensive in the face of the countermajoritarian arguments. When judges declare a statute unconstitutional, their declaration fits democracy fully, because they get their review power from the democratic constitution, and because democracy is not simply majority rule, but also the protection of rights and freedoms of every individual. In the absence of human rights, democracy cannot exist. Furthermore, in most cases, the countermajoritarian argument-imported from America-is not of great value. First, because in most cases the legislature may, ultimately, achieve its political ends by using less intrusive means. second, because in many countries-unlike the United States-the legislative body may, by a special vote, amend the constitution.
What should judges do?
Up to now I emphasized what judges should not do. But what should a judge do? My main advice is very simple: Be truthful to yourself and to your judicial philosophy. Specifically, we should be neutral with respect to the parties. Neutrality does not mean apathy to the plight of the parties. Neutrality does not mean indifference with respect to democracy, separation of powers, judicial independence, or human rights. …