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Guardians of the constitution: Justice Barak visits Queen’s Law

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On the surface, a judge is a trier of law whose primary purpose is to instruct the jury on the relevant legal issue, or in absence of a jury, act as both trier of fact and law. But for Justice Aaron Barak, former president of the Supreme Court of Israel, judges are much more. They are the guardians of the constitution—and that means that sometimes they need to be creative in using their judicial discretion to protect society’s interests.

This is what he told a room full of rapt law students, faculty and other guests at the 2014 Laskin Lecture on Monday. The lecture is named for former Chief Justice of Canada, the Right Honourable Bora Laskin.

Barak said judges should aim to achieve two main objectives. First, they must bridge the gap between law and life without changing the legal text itself, and second, they must protect the constitution and democracy. And that means finding the delicate balance between stability and change. “The law must be stable,” he said, “and yet it cannot stand still.” Barak explained the two ideas are intertwined in a legal system’s evolution. “Stability without change is decline,” he said. “Change without stability is anarchy.”

“The role of the judge is to help bridge the gap between the needs of society without allowing the legal system to decline or collapse into anarchy.” Turning to historical examples from the past century to illustrate his point, Barak argued that the violent upheaval of the judicial system following the Second World War was a catalyst for change in judicial review and human rights. Now he said, “The struggle against terrorism turns our democracy into a defensive democracy.”

Even in revolutionary historical periods, the judge’s job is still to interpret, not to rewrite. This is where Barak’s idea of creativity in judicial discretion comes to light. “Our ability to perform our role depends on our ability to build new structures with the same old bricks,” he said, maintaining that a judge’s job is to apply the law—not change it. In his opinion, the rule of law should apply first and foremost to judges themselves.

But Barak’s ideas of democracy and the rule of law have not always been a popular position in Israel—a country where national security is a primary concern and democratic rights and freedoms must often be suspended or eviscerated to protect the country from existential threats. Hinting at criticism he received while he was President of the Supreme Court and after for his judgments on matters of security, Barak acknowledged that the system for maintaining security, particularly in Israel, is not always ideal. “Ends do not justify the means,” he said, “security is not above all else.”

Even so, matters of national security must come before the court to maintain the democracy that Israel sees as a matter of national pride. “The ability to access the court is the cornerstone of democracy,” he said. “In the area of public law, each individual has the right that state action remains within the framework of the law.”

Ultimately, Barak said that giving wide discretion to the political branch, particularly on matters of national security does not mean that the law is ignoring that particular aspect of society. “There are no areas of human life that are external to law,” he said. “This freedom is not freedom from law, but rather freedom within the law.”


 

Sarah Spitz (1L) is a News Editor for Juris Diction.

If you have any questions or comments about this article, email us at publisher@juris-diction.ca.

Photo by Billie Leung
Photo by Billie Leung
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