On Society, Law, and Judging

This paper was originally presented at the 2011 Legal Scholarship Symposium

A Tribute to Burke Marshall

I close my eyes, and I see Burke Marshall, sitting near me-at his office, in the classroom, at his home. We had long conversations-on peace in the Middle East, on recent Supreme Court cases. But his main interest was the civil rights movement. He was a shy person. He never volunteered to talk about himself, but when I asked him, he would tell me his story. And you could sense where his heart was, where his thoughts were, and what his dreams were

Letter from Justice Aharon Barak

I am terribly sorry that I was unable to attend your symposium celebrating Judge Jon Newman\u27s thirtieth year on the federal bench. I would, however, like to voice some of my reflections on Judge Newmans\u27 unique contributions

The Role of a Supreme Court in a Democracy, and the Fight Against Terrorism

I see my role as a judge of a supreme court in a democracy as the protection of the constitution and of democracy. We cannot take the continued existence of a democracy for granted. This is certainly the case for new democracies, but it is also true of the old and well-established ones. The approach 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 if the supreme court judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World War is the need to have democratic constitutions and ensure that they are put into effect by supreme court judges whose main task is to protect democracy. It was this awareness that, in the post-World War II era, helped disseminate the idea of judicial review of legislative action and make human rights central. It led to the recognition of defensive democracy and even militant democracy. And it shaped my perspective, that the main role of the supreme court judge in a democracy is to maintain and protect the constitution and democracy

The Role of a Supreme Court in a Democracy 53 Hastings L.J. 1205 (2001-2002)

The role of the judiciary is to adjudicate disputes according to law. Adjudication involves three functions: fact determination (done mostly by the trial court), law application and law determination. The third function-law determination-does not involve, in most cases, any creation. The law is known and determined. The court merely declares what the law is. The court is, in the words of Montesquieu, a mouth that pronounces the words of the law. 1 However, there are hard cases. In such cases, the law is uncertain. There is more than one meaning to be given to the legal text. There is more than one solution to the legal problem. In such cases, law declaration also involves law creation. Prior to the judicial determination, the law (the constitution, the statute, the common law) spoke-even after all rules of interpretation were used-with a number of voices. After the judicial determination the law speaks with a single voice. The law was changed. A new meaning was created. The creation of a new norm-to be binding on all courts by the rule of precedent-is the main function of the supreme court in a democracy. Such creation involves discretion. The judge of a supreme court is not a mirror, passively reflecting the image of the law. He is an artist, creating the picture with his or her own hands. He is legislating -engaging in judicial legislation. He does so in concrete cases, as an incidental and interstitial outcome of the adjudicative function

Barzilai v. Government of Israel

The petitions to the court related to the decision of the President of the State to pardon the Head of the General Security Service (G.S.S.) and three of his assistants in respect of all the offences attributed to them connected with the incident known as bus no. 300 . The pardons were granted by the President under sec. 11 (b) of the Basic Law: The President of the State, by which he is empowered to pardon offenders and to lighten penalties by the reduction or commutation thereof. The principal issue raised in the petitions was whether the President had the power to pardon persons before conviction. The court was also asked to order the competent authorities to investigate the incident referred to. 1. In regard to the interpretation of sec. 11(b) of the Basic Law, the court examined the import of the terms offence and offender, and reviewed the legislative background to the enactment of sec. 11(b) above, in particular Article 16 of the Palestine Order in Council of 1922 and sec. 6 of the Transition Law, 1949. The court also considered the influence on the interpretation of sec. 11(b) of the Basic Law of the Anglo - American Practice in regard to pardon, as well as the place of the Presidential power of pardon in Israel in relation to the powers of other State authorities charged with the administration of criminal justice. Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring): Having regard to the legislative purpose in the light of the above considerations, to the need for a spacious interpretation in matters of constitutional content, and to the accepted construction of the pardoning power since enacted in its original form, sec. 11(b) was to be interpreted as empowering the State President to pardon offenders both before and after conviction. Per M. Ben-Porat D.P.: The grant of a pardon involves a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor and the State President was faced with the same predicament when making his pardoning decision. Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed: Per Barak J., dissenting: Upon a proper interpretation of sec. l l(b) of the Basic Law: The President of the State, the Israel Legislature cannot be presumed to have favoured Presidential intervention in criminal proceedings before these have run their full course. Under the Israel constitutional scheme the Presidential power of pardon must not be construed as a paramount power, or as rivaling the powers of other State authorities, such as the police, the prosecution, the courts. It must be construed as a residual or a reserve power to be exercised only after the other authorities concerned have exhausted their own powers, i.e. after conviction of the accused. The pardons granted in the present case therefore are void and of no effect. 2. Held by the court (per Shamgar P.): (a) The absence of a real personal interest on the part of any of the petitioners, does not justify the immediate dismissal of the petition. The Supreme Court will take a liberal view on this aspect and grant access to petitioners where the question that arises is of a constitutional character or of public interest related directly to the advance of the rule of law . This entails no general recognition of the actio popularis, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character. (b) In granting the pardons, the State President was acting in a matter connected with his functions and powers as provided in sec 13 of the Basic law: The President of the State. Hence he is not amenable to the jurisdiction of the courts in connection therewith, including the Supreme Court\u27s powers of direct review - its authority to demand of the president himself an explanation of his decisions. This immunity relates to the direct challenge of any Presidential act, but there is no obstacle to indirect judicial review of the President\u27s discharge of his functions in proper cases and when the proceedings are directed against some other responden