Book review: The Judge in a Democracy

Mathieu Deflem
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This is a copy of a book review published in The European Legacy 14(7):915-916, 2009.

Also available as PDF file.

Please cite as: Deflem, Mathieu. 2009. Review of The Judge in a Democracy, by Aharon Barak. The European Legacy 14(7):915-916.

The place of law in a democratically organized society is inevitably a very central one. It is through the law that the voice of the people can not only be heard but also made to react back on society by legislating normatively proscribed modes of conduct. Within a democratic legal system, moreover, the legal profession enjoys a special status in mediating the concerns and objectives expressed in the law to the people to whom it applies as its subjects. And within the legal profession, at its apex, sits and speaks the judge as the final authority to apply the law to specific cases and to interpret legal codes by examination of their constitutionality. Even in today’s highly rationalized societies, when legal cases are often routinized on the basis of legal and scientific expertise, the role of the judge carries special charismatic qualities. In this book, eminent legal scholar and former Israeli Supreme Court justice Aharon Barak contemplates the actual and ideal function of the judge in contemporary democracies.

The viewpoint of this book is that of the practicing judge, who cannot afford the luxuries that come from being located outside the law, but who, on the contrary, is deeply embedded in the law and must remain committed to it. Yet, while a professional of and for the law, Barak is also keenly aware that the judge fulfills functions that extend beyond the law itself. Specifically, Barak argues that the judge should balance between the needs for change and stability in adapting the law according to shifting societal conditions and should, moreover, secure democracy by protecting a social order’s constitution. While itself not political, the law fulfills essential functions in relation to a society’s political order, in particular by guaranteeing the separation of powers, the rule of law, and the embodiment of principles of justice in the law.
Key among the means to fulfill the judicial role in democracies are the twin qualities of judicial impartiality and objectivity. These qualities should, according to Barak, be exercised in view of the inescapable impact the judicial decision-making process has on the broader society in which the law is applied. The judge’s philosophy therefore ought to be based on the awareness that judicial interpretation should be purposive in order to reconstruct the intent of the law. In so doing, judges often find themselves in tension with the other branches of government. It is in this tension that the judge’s most central democratic role is situated.

Barak’s writing is not merely clear, it exudes the logical structure that the modern law endeavors, and often claims, to exhibit. However, as the book is constructed from within the law, looking towards other social forces, it fails to recognize that law is itself already part of society. For this reason, the judge of Barak’s work remains a judge in rather than ofsociety. For the professional of law nonetheless, Barak’s book may serve as the beginning of a revealing look at the social role of the law.

See related writings on sociology of law.