On My Judicial Philosophy
by
Aharon Barak

As I stand here before you today, I feel immense gratitude to be this year's recipient of the Justice Prize from the Peter Gruber Foundation. Indeed, I feel honoured, humbled and deeply moved to be given this prestigious award and to stand alongside those who have preceded me.

The Justice Prize aims to encourage advancements in the field of law and progress toward bringing about a fundamentally just world. I have always aimed to adhere to these high aspirations and shall continue to do so in the future. Now, after passing the torch, it is my aspiration that my successors will follow a similar path to the one I have chosen, and endeavour, as I have, to promote justice.

I also wish to take this opportunity to extend my sincerest thanks and appreciation to the members of the Foundation's advisory board. Their deliberations, no doubt, involved considerable time and effort to select among the worthy candidates worldwide. It is difficult to put into words the fulfillment felt when one is honoured by such a distinguished panel. I extend my thanks to you all.

A. Introduction

According to my judicial philosophy, a judge in a democracy – especially a judge of a Supreme Court or Constitutional Court – has two main roles: bridging the gap between law and society, and protecting the constitution and democracy.

B. Bridging the Gap between Law and Society

The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose. The history of law is the history of adapting law to life's changing needs.

The need for change presents the judge with a difficult dilemma, because change sometimes harms security, certainty, and stability. The judge must balance the need for change with the need for stability. Stability without change is degeneration. Change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of society and law without allowing the legal system to degenerate or collapse into anarchy. The judge must ensure stability with change, and change with stability. Like the eagle in the sky that maintains its stability only when it is moving, so too is the law stable only when it is moving. Achieving this goal is very difficult. The progress of case law throughout history must be cautious. The decision is not between stability or change. It is a question of the speed of the change. The decision is not between rigidity or flexibility. It is a question of the degree of flexibility. The judge must take into account a complex array of considerations. A judge must consider: (1) the coherence of the system in which he operates; (2) the powers and limitations of the judiciary as an institution as defined within that system; and (3) the way in which his role is perceived.

C. Protecting the Constitution and Democracy

The second role of the judge in a democracy is to protect the constitution and democracy itself. Indeed, if we wish to preserve democracy, we cannot take its existence for granted. We must fight for it. This is certainly the case for new democracies, but it is also true of the old and well-established ones. The assumption that “it cannot happen to us” can no longer be accepted. Anything can happen. If democracy was perverted and destroyed in the Germany of Kant, Beethoven, and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know whether the judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that a lesson of the Holocaust and of the Second World War is the need to enact democratic constitutions and ensure that they are put into effect by judges whose main task is to protect democracy. It was this awareness that, in the post-World War II era, helped promote the idea of judicial review of legislative action and made human rights central. It led to the recognition of defensive democracy and even militant democracy. And it shaped my belief that the main role of the judge in a democracy is to maintain and protect the constitution and democracy.

Democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections held on a regular basis, in which the people chooses its representatives, who in turn represent its views. This aspect of democracy is manifested in majority rule, and in the centrality of the legislative body through which the people’s representatives act. This is a formal aspect of democracy.

The second aspect of democracy is reflected in the rule of values (other than the value of majority rule) which characterizes democracy. The most important of these are separation of powers, the rule of law, judicial independence, human rights, and basic principles which reflect yet other values (such as morality and justice), social objectives (such as the public peace and security) and appropriate ways of behavior (reasonableness, proportionality and good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy.

Democracy’s world is rich and multifaceted. Democracy should not be viewed from a one-dimensional vantage point. Democracy is multidimensional. It is based both on the power of the majority and on the rights of the individual. Indeed, democracy is based on every individual’s enjoyment of rights, of which even the majority can not deny him simply because the power of the majority is in its hands. Democracy has its own internal morality, without which the regime is no longer democratic.

Democracy, then, is based on the simultaneous existence of both the rule of the majority and the rule of values which characterize democracy. A delicate balance must be kept between the two aspects of democracy, in a way that protects the nucleus of each one of its aspects. This balance will be based, inherently, upon the restrictions placed both on majority rule and on the rule of fundamental values of democracy.

D. Preconditions for Realizing the Judicial Role

The realization of those two roles by the judge requires that judges will act objectively. The objectivity required of a judge is difficult to attain. Even when we look at ourselves from the outside, we do so with our own eyes. Nonetheless, my judicial experience tells me that objectivity is possible. A judge does not operate in a vacuum. A judge is a part of society, and society influences the judge. The judge is influenced by the intellectual movements and the legal thinking that prevail. A judge is always part of the people. It may be true that the judge sometimes sits in an ivory tower — though my ivory tower is located in the hills of Jerusalem and not on Mount Olympus in Greece. The judge progresses with the history of the people. All of these elements contribute to the judge’s objective perspective.

When judges give expression to the fundamental values of the system, they give expression to the values that, in their eyes, seem proper and basic. Some subjectification of this process is inevitable. Complete objectivity is unattainable. The personal aspect of a judge is always present, and his life experience neither disappears nor can disappear. We would not want it to, because in these situations, it is the judge’s personality that finds expression — the same personality that underwent, and passed, the judicial nomination process. We need not, however, go from extreme to extreme. Rejecting complete objectivity does not require us to embrace complete subjectivity. There is a third way, reflected in acknowledging the importance and centrality of judicial objectivity while recognizing, unreservedly, that it can never fully be achieved. It is enough for a judge to make an honest attempt to objectify his exercise of discretion, recognizing that it cannot be done in every circumstance.

As a rule, I have always tried to carry out my role as a judge within the framework of social consensus, to the extent that data exist about it. The judge should generally not be the crusader of a new social consensus. As a rule, judges should reflect values and principles that exist in their system, rather than create them. Justice Traynor rightly stated: "The very responsibilities of a judge as an arbiter disqualify him as a crusader."

Nevertheless, there are cases — and they must naturally be few — in which the judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag-bearer of a new social consensus. Consider the case of Brown v. Board of Education. I do not know what the consensus was in the United States just before the Supreme Court’s decision in Brown, but the Court at that time fulfilled its role even if it ruled against the then-prevailing consensus. Naturally, a court will not retain public confidence if it announces a new Brown twice every week. Similarly, a court will lose public confidence if it misses an opportunity like Brown when faced with it. In the final analysis, everything is a question of degree.

The consensus within which judges usually ought to operate should be a consensus grounded in the fundamental values of the legal system. Judges should not act according to a consensus formed by transient trends that are inconsistent with the society’s fundamental values. Judges’ social framework must be central and basic, not temporary and fleeting. When society is not being true to itself, judges are not required to give expression to its passing trends. They must stand firm against these trends, while giving expression to the social consensus that reflects their society’s fundamental principles and tenets.

An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness, and impartiality. It means public confidence in the ethical standards of the judge. It means public confidence that judges are not interested parties to the legal struggle, and that they are not fighting for their own power, but to protect the constitution and democracy. It means public confidence that the judge does not express his own personal views, but rather the fundamental beliefs of the nation. Indeed, the judge has neither sword nor purse. All he has is the public’s confidence in him. This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.

The precondition of “public confidence” runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity. Public confidence does not mean following popular trends or public opinion polls. Public confidence does not mean accountability to the public in the way that the executive and the legislature are accountable. Public confidence does not mean pleasing the public; public confidence does not mean ruling contrary to the law or contrary to the judge’s conscience to bring about a result that the public desires. On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law. Judges must act — inside and outside the court — in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth. It is not fiat, but reason; not mastery, but modesty; not strength, but compassion; not riches, but reputation; not an attempt to please everyone, but a firm insistence on values and principles; not surrender to or compromise with interest groups, but insistence on upholding the law; not making decisions according to temporary whims, but progressing consistently on the basis of deeply held beliefs and fundamental values. Admittedly, judging is a way of life that involves some degree of seclusion, abstention from social and political struggles, restriction on the freedom of expression and the freedom to respond, and a large amount of isolation and internalization. But judging is emphatically not a way of life that involves a withdrawal from society. There should be no wall between the judge and the society in which the judge operates. The judge is a part of the people.

E. The Means

What are the means a judge can use in order to fulfill his role? What are his tools? Of course, the means of realizing the judicial role must be legitimate. The principle of the rule of law applies first and foremost to judges themselves, who do not share the legislature’s freedom in creating new tools. The bricks with which we build our structures are limited. Our power to realize our role depends on our ability to design new structures with the same old bricks or to create new bricks. Sometimes we succeed in creating new “tools.” Here the genius of law is evident. But such “inventions” are few. Usually we return to the old tools, and use them to resolve new situations. Let me mention some tools used by judges.

Our main tool is, of course, interpretation. Rules of Interpretation are judge-made rules. We should shape our rules of interpretation in such a way that will allow us to fulfill our role. Indeed the bridging of the gap between law and life and the protection of the constitution and democracy is not just the outcome of the interpretive theory. It is the underlying goal of the interpretive theory itself. We judges should shape our interpretation rules so as to achieve the two-fold goals imposed upon us.

Judges are the creators of the common law. In developing the common law, judges should bridge the gap between law and life; they should protect the constitution and its values. This is the theory of the common law in a nutshell. This is how it is integrated into law, as a primary limb of the body politic. The common law- like judicial interpretation- is a primary tool in realizing the judicial role. It is an important tool. Its potential to change and rejuvenate facilitates the law’s adaptation to changing social needs. Its characteristic sensitivity to fundamental values and fundamental perspectives guarantees appropriate protection for the constitution and its values.

The very important tool for a judge to realize his role is balancing and weighing. Balancing and weighing, themselves metaphors, reflect the need to decide a conflict between values and principles that are accepted in the legal system. The concept of balancing recognizes that fundamental principles may conflict with one another, and that the proper resolution of this conflict lies not in the elimination of the inferior value, but in determining the proper boundary between the conflicting values. Similarly, the concept of “balance” reflects the recognition that fundamental principles have “weight”, and that it is possible to classify them according to their relative social importance. The act of “weighing” is merely a normative act designed to give the principles their proper place in the law.

Another tool that judges use to fulfill their role in a democracy is determining justiciability. That is, judges identify those issues about which they ought not make a decision, leaving that decision to other branches of the state. The more non-justiciability is expanded, the less opportunity judges have for bridging law and society and for protecting the constitution and democracy. Given these consequences, I regard the doctrine of non-justiciability or “political questions” with considerable wariness. I prefer — insofar as possible — to examine an argument on its merits. In many cases where some of my colleagues have dismissed claims on the grounds of non-justiciability, I dismissed them on the grounds that the disputed action was legal and therefore that the claim should be dismissed on the merits because of lack of cause of action. The court should not abdicate its role in a democracy merely because it is uncomfortable or fears tension with the other branches of the state. This tension not only fails to justify dismissing claims, but is even desirable on occasion. It is because of this tension that the freedom of the individual is guaranteed.

Lastly, an important tool judges use in order to fulfill their role in a democracy in shaping the rules of standing. These are the rules by which the judge decides who can apply to the court in a public law complaint. The issue of standing appears to many to be marginal in public law. This is certainly the case if one adopts the view that only a person who has experienced an injury in fact possesses standing. But if we liberalize the tests for standing, we will usher in a new era for judicial decision-making whose ramifications are far greater than the issue of standing itself. This is the case because liberal rules of standing enable courts to hear matters that ordinarily would not find their way before a court. How a judge applies the rules of standing is a litmus test for determining his approach to his judicial role. A judge who regards his judicial role as bridging the gap between law and society and protecting democracy will tend to expand the rules of standing. It follows that I favor expanding the rules of standing and releasing them from the requirement of an injury in fact. The Supreme Court of Israel has adopted this approach.

F. Democracy and Terror

Terrorism creates much tension between the essential components of democracy. One pillar of democracy — the rule of the people through its elected representatives (formal democracy) — may encourage taking all steps effective in fighting terrorism, even if they are harmful to human rights. The other pillar of democracy — human rights — may encourage protecting the rights of every individual, including the terrorists, even at the cost of undermining the fight against terrorism. We, the judges in modern democracies, are responsible for protecting democracy both from terrorism and from the means the state wants to use to fight terrorism. Of course, matters of daily life constantly test judges’ ability to protect democracy, but judges meet their supreme test in situations of terrorism. The protection of every individual’s human rights is a much more formidable duty in times of terrorism than in times of peace and security. If we fail in our role in times of terrorism, we will be unable to fulfill our role in times of peace and security. In my last case dealing with terror, I wrote:

"The Basic Laws do not recognize two sets of laws, one that applies in times of peace and the other that applies in times of war… Indeed, Israeli constitutional law has a consistent approach to human rights in periods of relative calm and in periods of increased fighting. We do not recognize a clear distinction between the two. We do not have balancing formulas that are unique to times of war. Naturally, human rights are not absolute. They can be restricted in times of peace and in times of war. I do not have a right to shout ‘fire’ in a theatre full of spectators… War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria… Indeed, we do not have two sets of laws or balances, one for peaceful times and the other for times of terror… There is no possibility of making a clear distinction between the status of human rights in times of war and their status in times of peace. The dividing line between war and peace is a fine one. This is the case everywhere. It is certainly the case in Israel. There is no possibility of maintaining it over time. We must treat human rights seriously both in times of war and in times of peace. We must free ourselves from the naïve belief that when terror ends we will be able to put the clock back. Indeed, if we fail in our task in times of war and terror, we will not be able to carry out our task properly in times of peace and calm… Thus we see that there is only one track within which framework the petitions before us should be examined. This track is — with regard to any claim against the constitutionality of a statute — the track of the Basic Laws. Within the framework of this track, we should follow the well-trodden path of examining the constitutionality of the law. There is no parallel track; there is no alternative route. There is one path that applies at all times. It applies in times of peace. It applies in times of war."

Democracy ensures us, as judges, independence. It strengthens us against the fluctuations of public opinion. The real test of this independence comes in situations of terrorism. Precisely in these times, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the constitution.

Admittedly, the struggle against terrorism turns our democracy into a “defensive democracy” or a “militant democracy.” Nonetheless, this defense and this fight must not deprive our regime of its democratic character. Defensive democracy: yes; uncontrolled democracy: no. The judges in a modern democracy must act in this spirit.

G. Final Remarks

I tried to summarize some aspects of my judicial philosophy as to the role of a judge in a democracy. I do realize that such a philosophy has its critics. It may and does sharpen the natural tension between the judiciary and the other two branches of government. It may affect the confidence of the public in the judiciary. It may be labeled as “activist” in some aspects. It clearly has its disadvantages. It may not fit some democracies. It may not fit us in years to come. I do, however, believe that it is the proper judicial philosophy for our democracy in our times. One should not forget that a large part of Israel’s population immigrated to Israel from the Near East and from Eastern Europe – places where there are no democratic traditions. Democracy is thus young in Israel. Because of English influences, many view democracy in formal terms. Parliament, for them, is omnipotence. Furthermore, for a variety of reasons, the concept of “it is not done” is not a central part of governing in Israel. Israel lacks a rigid constitutional framework. Basic structures and concepts can be changed by bare majorities. The protection of those structures and concepts needs judges who see their role as protectors of our constitution and democracy.

Human rights in Israel until 1992 were largely the creation of the courts. Since 1992 they are embodied in two basic laws. The Supreme Court interpreted those basic laws to mean that the courts have review power of the constitutionality of these laws. The Parliament and the Executive branch are following this decision. In order to properly fulfill such power, one needs a judicial philosophy that views the protection of human rights as a major role of the judges. Such philosophy is especially important when a country is under security risks. The political non-accountability of Israeli judges makes us fit to protect human rights against excessive demands of security. Israel is a militant democracy. In order to be militant and still be a democracy, Israel needs judges that do believe that the protection of Israel's democracy is their main task.

Does all this affect the confidence of the people in the judges? I don't know. I do believe that at this stage of our national development we need judges with a strong commitment to democracy and its protection. In better times, things may, and probably will, change. I regard myself as a judge who is sensitive to his role in a democracy. I take seriously the tasks imposed upon me — bridging the gap between law and society and protecting the constitution and democracy. Despite frequent criticism – and it frequently descends to personal attacks and threats of violence - I have continued on this path in the twenty- eight years I was on the Court. I hope that by doing so, I have served my legal system properly. Indeed, as judges in our countries’ highest courts, we must continue on our paths according to our consciences. A heavy responsibility rests on our shoulders. But even in hard times, we must remain true to ourselves. As a judge, I did not have a political platform. I was not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and non-disabled – all were equal in my eyes. All are human beings, created in the image of the Creator. I have protected the human dignity of each. I did not aspire to power. I did not seek to rule. I was aware of the chains that bind me as a judge and as the President of the Supreme Court. I have repeatedly emphasized the rule of the law and not the rule of the judge. I am aware of the importance of the other branches of government – the legislative and executive.

I viewed my office as a mission. Judging is not a job. It is a way of life. I expressed those ideas in an opinion considering whether extraordinary methods of interrogation (torture) may be used on a terrorist in a “ticking bomb” situation:

“Deciding these applications has been difficult for us. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. We know its problems and we live its history. We are not in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The fear that our ruling will prevent us from properly dealing with terrorists troubles us. But we are judges. We demand that others act according to the law. This is also the demand that we make of ourselves. When we sit at trial, we stand on trial.”

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