Aharon Barak
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Aharon Barak was born in Kaunas, Lithuania on September 16, 1936 to
Leah (daughter of Rivka Katz and Rabbi Meirovitz of Rokiskis) and
Zvi-Hirsh Brik (later Barak), born 1904, from Plunge, who was the
Director of the Palestine Office in Kovno. Aharon was smuggled out of
the Kovno Ghetto in a suitcase as a child and hidden by a Lithuanian
farmer. He immigrated to Israel with his parents in 1947.

He is a professor of law at the Hebrew University of Jerusalem and
lecturer in law at the Yale Law School. He was President of the
Supreme Court of Israel from 1995 until the middle of 2006. Legal
scholars have called him the "John Marshall" of Israel, the "world's
greatest living jurist."[1]

Barak is well-known for championing a proactive judiciary that has
interpreted Israel's Basic Law as its constitution and challenged
Knesset laws on that basis; his actions have been controversial in
some quarters because of this. Under his term the Supreme Court issued
controversial decisions on the nature of the state and the ability of
both the Knesset and the Prime Minister to implement their decisions.
Barak reached mandatory retirement age of 70 in 2006, leaving the
Israeli Supreme Court a very different place.

In 2006, he published "The Judge in a Democracy", an examination of
his judicial philosophy, in which he describes the role of a judge,
beyond dispute resolution, is to connect law with society and to
protect the constitution and democracy. He also espouses the role of
purposive interpretation to reading constitutional texts.

THE ROLE OF THE JUDGE IN A DEMOCRACY

 

by Aharon Barak
Second "Justice in the World Foundation" Prize

With profound and sincere gratitude, I wish to thank the jury of the
International Association of Judges for awarding me the Justice in the
World Prize. To me, this honour represents not only recognition for my
own work as a judge, but recognition of all Israeli judges, who are
succeeding and flourishing despite the difficult circumstances under
which they must operate. It is precisely under those arduous
conditions that the Israeli judiciary constantly strives and excels in
fulfilling its role, prompted by the singular desire to safeguard the
basic values of our Democracy.
I am particularly moved to be receiving this prize here, in Spain, a
country to which my people have a special historical connection.

The judge is not a politician. He does not represent one sector or
another. Neither must he present himself for elections every few years
or devise a platform for such purposes. Rather, the judge is neutral,
one who objectively adjudicates the specific conflict before him.
Necessarily, this function with which the judge is endowed requires
judicial independence as a prerequisite. Judicial Independence, it
must be noted, encompasses two essential ingredients: personal
independence and institutional independence.

Personal independence, for its part, involves non reliance on any
factor external to the judge. Thus, a judge's decision is the
exclusive fruit of his conception of the relevant facts and law, free
from any prohibited external influence. In fact, the exertion of any
foreign influence or pressure is expressly prohibited.

There can, however, be no personal independence for the individual
judge in the absence of institutional independence for the judiciary
as a branch. The authority vested in the executive branch with regards
to the judiciary on an administrative level inevitably threatens the
individual independence of the judge. To my mind, it is essential that
the administrative responsibility with respect to matters relating to
the judicial role should be vested exclusively in the judicial branch.
The requirements of judicial independence cannot be properly satisfied
if the executive branch (generally the Minister of Justice or Attorney
General) is entrusted with administrative matters directly related to
the judicial branch. I believe that the Legislator's determination of
the proper budget to be allotted the judiciary in itself adequately
satisfies the criteria of judicial accountability to the public. The
assurance of absolute independence of the individual judge,
necessarily require full institutional independence of the judicial
branch per se.

It seems to me that concern for the institutional independence of the
judiciary must preoccupy all those concerned with the personal
independence of individual judges. We as judges, must strive to ensure
that both sides of the coin of judicial independence are given proper
attention and placed on the top of our agenda. To this end, I, in
Israel, commit myself to a perpetual struggle, the purpose of which is
to safeguard the institutional independence of the judiciary.

Although judicial independence is sine qua non to the judicial role,
it constitutes a necessary but insufficient condition. In effect, the
individual judge and the judicial branch cannot effectively function
without public confidence. The public's confidence in the judiciary
represents an indispensable precondition to the proper functioning of
the judge's role. As the judge carries neither sword nor purse, he is
dependant exclusively upon the public's trust.

Of course, confidence in this context is not tantamount to agreement
with the judiciary's substantive decisions. Quite obviously, the judge
will often rule- as he must- in a manner which offends the majority's
view on a given issue. Instead, public confidence in the judiciary
implies trust in the fairness, impartiality and neutrality of the
judiciary. It refers to confidence in the judges' moral integrity,
rather than his tendency to agree with the general public on a give
matter. It implies and necessitates the citizenry's firm conviction
that the judge is not, under any circumstances, partial; His sole
motive being the protection of the Rule of Law, not his own power or
prestige.

The judge must therefore be characterised by absolute neutrality with
respect to the parties and issues before him. Neutrality does not by
any means imply apathy to the plight of the parties or the basic
values and principles at stake. On the contrary, I am convinced that
in a Democracy, the judge is in fact required to give expression to
the values and principles of his legal system. The values and
principles referred to are not those that may be deemed to be the
"mood of the day". They represent the values, principles and social
consensus which reflect the deeply embedded convictions of the
democratic society; Rather than succumbing to the hysteria of recent
events, the judge should reflect his people's history. It is precisely
the judge's very independence which endows him with the unique
capacity to reflect the democratic system's basic values, even when
those do not correspond to the "shifting winds" of public opinion.

The fact that judges are not elected by the general public is
precisely what enables them to remain unswayed and reflect only those
time tested values, principles and rights underlying the legal system,
even when these are not socially welcomed at a given time in history.
Thus, the judge must firmly represent and give expression to these
values, particularly when society is swept away by populism. In so
doing, the judge embodies a fortress, protecting the basic values and
conception of democracy, as enshrined in the State's constitutional
structure and texts.

The judge must be neutral. However, he should not be indifferent with
respect to democracy, separation of powers or human rights. Indeed, I
view the judge's principal constitutional role as both the quest and
ardent desire to protect and preserve the state's democratic
character, while safeguarding separation of powers. Above all, I
believe it to be the judge's sacred and primary duty to guarantee and
nurture human rights. Democracy is not simply majority rule; Democracy
is also human rights. In the absence of human rights democracy can not
exist.

Similarly, separation of powers in itself constitutes an essential
democratic value, its purpose being not to ensure efficiency, but to
safeguard liberty. Indeed, at the root of our role as judges, lies our
duty to uphold the individual's human rights, in relation to his
fellow human being and in relation to the State. As judges, it is our
duty to guarantee the human rights of all people, with particular
emphasis on the weak, minorities, and the disenfranchised. In fact,
our independence ideally positions us as those who can best give
expression to our respective systems' basic values and to the
protection of minority rights from majority tyranny.

Affording such protection in no way offends democracy. Instead, it
brings democracy, in its richest meaning, to its highest realization.

My own experience during the Second World War and the Holocaust- The
Holocaust in which six million of my people, including most of my
family, were brutally murdered -I myself having been miraculously
saved from being sent to a concentration camp thanks to the courage of
a Lithuanian farmer- impressed upon me the crucial need to safeguard
human dignity for all.

Since the Second World War, public awareness has grown significantly
respecting human rights world-wide. While the plight of Kosovo is all
the more revolting and disturbing in light of the above, greater
interest in the suffering of one's fellow man can be said to be
present in the post World War Two era. It therefore appears that the
post-war era may be deemed to have comprised a renaissance of human
rights. At the vanguard of this front stand none other than the judges
and the courts, having grasped that true democracy can only be
achieved by striking the proper balance between majority rule and
minority rights. This balancing process by no means requires the judge
to sacrifice the State on the altar of individual rights. A
Constitution is no prescription for suicide; Human rights do not set
the stage for national annihilation. Rather, our interest lies in the
delicate and sensitive balance between the respective interests of the
community and those of the individual; between the needs of the public
and the rights of the individual.

It is the judge's duty to act objectively. To this end, he must rely
on normative requirements external to him, determined by the basic
values of the democratic society in which he lives. He must identify
and give expression to those values, even when he himself does not
share them. He must abstain from imposing his own subjective values on
the public. Inevitably, the judge is a product of his era-shaped by
the times and society in which he lives. Clearly, the purpose of
judicial objectivity is not to amputate the judges from their
surroundings. In fact, the opposite is true: the goal is to permit
judges to set forth and express the basic values of their epoch. The
purpose of judicial objectivity is not to free the judges from their
past, from their education, experience, convictions and values.
Instead, it seeks to prompt them to make use of all these tools in an
effort to reflect the nation's basic democratic values, in the
clearest, most accurate manner possible.

Thus, neutrality does not require judicial appointees to discount
their life experiences. These constitute important assets, enhancing
the judge's ability to approach cases with humanity and engage in the
delicate task of balancing between conflicting values. Rather than
shedding his past completely, the judge must be sensitive to the
weight of his office and to the constraints it imposes. A judge must
be self critical and lack any traces of arrogance which risk
misleading him into self grandeur. He must show proof of intellectual
humility, thereby permitting him to admit his errors. An American
judge, referring to the U.S. Supreme Court, once said:

"We are not final because we are infallible; but we are infallible
only because we are final".

In my view, this approach is not acceptable. The strength of our
decisions is anchored in our ability to be self-critical and to admit
our errors in the appropriate instances. In fact, judging requires
constant awareness of the possibility that we, despite our best
efforts, might err. Any theory of judging must account for this.

The judge is part of his People. At times, he is to be found sitting
in the so called "ivory tower", although from my perspective, that
"tower" is clearly situated in the Jerusalem hills-not Mount Olympus.
It is of the essence that a judge be fully conscious of his
surroundings, of the events preoccupying his people. It is his duty to
study his country's problems, to read its literature, to listen to its
music. He must familiarise himself with its religious, social and
cultural tradition. Yes, the judge is part of his epoch, the son or
daughter of his times, the product of his people's history.

The judge must balance the need for change with preserving that which
exists. The life of the law is indeed complex. It is a mixture of both
logic and history: "Law must be stable, yet it cannot stand still".
Said Roscoe Pound : "Stability without change is decline; Change
without stability is anarchy". The judge must strive to close the gaps
between life and law, all within reasonable expectations. Clearly, the
judge's senior partner is the Legislator. It is he who is chiefly
responsible for closing the gaps between law and society. The judge is
but a junior partner-but a partner he is nonetheless. As such, he
endeavours to ensure stability through change. Judicial lawmaking
must, as history has illustrated, be most cautious in its approach. An
evolutionary, rather than revolutionary approach is therefore to be
preferred. It must be based on natural developments and continuity.

Any judge, and every generation of judges, are entrusted with writing
an additional chapter in the nation's "Book of Law". In so doing, it
is incumbent upon the judge to show both consistency and continuity.
Between Truth and stability, truth is to be preferred; between Truth
and Truth- we must choose stability. Law, along with life, is
constantly evolving. Legal history is the quest to reconcile the Law
with society's changing needs. A normative scheme which does not allow
for growth will eventually become irrelevant. Nor can stability,
certainty, consistency or continuity, be guaranteed without providing
for change. The law, like an eagle in the sky, is only stable when it
moves.

I see my role as a judge- as do my peers, I am certain- as a mission.
Judging is not merely a job-it is a way of life. Every judge must
fulfil his calling with intellectual integrity and humility, coupled
with a social sense and historical understanding. He must strive to
find solutions which reflect a balance of justice and equality for
all. Thus, above all else, he must struggle to bring to its fullest
expression the basic value upon which all law is essentially
predicated and society based- Justice. The Justice must do Justice. If
justice and law are to meet- as they must- a judge is not to define
himself as either 'activist" or "self-restrained". These are but empty
classifications devoid of normative meaning. They represent an empty
vessel with the potential to mislead. Instead of attaching labels,
judges must carry out their mission out of a desire to safeguard the
Rule of Law; It is preserving the Rule of Law rather than the Rule of
man; the Rule of Law not the Rule of judges; The Rule of Law, not
mereley the law of rules.

Once again, I wish to express my sincere thanks for having found me
worthy of receiving the Justice in the World Prize. I thank all those
gathered at this most impressive ceremony and leave you with this two
thousand year old Talmudic saying regarding judges:

"You would think that I am granting you power? It is in fact slavery
that I am imposing upon you".

This is the premise which accompanies me to the Courtroom daily; As I
sit at trial, I stand on trial. It is with this sentiment and with
deep-felt gratitude that I accept this honour today.

Thank you.

[This text was published in Justice in the World Magazine Nº3]