I

■



■
THE JUDGE IN A DEMOCRACY
Aharon Barak


■

.    ■

PRINCETON   UNIVERSITY   PRESS      PRINCETON   AND  OXfORD


84        CHAfTER   TWO


Chicago). The laws of a people should be interpreted on the basis of tlic assumption thar it wants to continue to exist. Civil rights derive from the existence of the State, and they should not be made into a spade with which to bury it.14*                            /
Similarly, human rights should not be sacftficcd on the altar of the state. After all, human rights arc natural rights that precede the state. Indeed, human rights protections require preservation of the sociopolitical framework, which in turn is based on recognition of the need to protect human rignts. Both the needs of the state and human rights are part of <«ie constitutional structure that simultaneously provides for human rights and allows them to be limited. A unique feature of dernocracy is that the scope and limits of human rights derive from a common source. Justice Dickson of the Canadian Supreme Court nicely noted this peculiar underpinning of democracy with the following comment about Canada's limitation fj/rmula: "The underlying values and principles of a free and democratic society arc the genesis of the rights and freedoms guar/ntccd by (he Charter and the ultimate standard against which/ a limit on a right or freedom must be shown, despite its/ffect, to be reasonable and demonstrably justified."1*0
This is the constitutional dialectic. Human rights and the limitations on them derive from (he same source, and they reflect the same values/* Human rights can be limited, but there arc limits to the linotations. The role of the judge in a democracy is to preserve both/of these limitations. Judges must ensure the security and existence of the state as well as the realization of human rights*, judges must determine and protect the integrity of the proper balance,
HV E.A. 2/84. Neimau t>. Chairman afCtnt. Elections Cemm. far f.lrMinh Knasst,
39(2)  Pli.  225. 310 (citation  omit(cd)  (English  translation available  at
\» YvW.COU n. gov. il).
"■ Tlx Qfittn r. Oakes^ \ 1986) S.C.R. 103, 136.
'•' See Wcinrib. supra p. vi*, note 34 at 127-28.
■
PROTECTING   THE   CONSTITUTION   AND   DEMOCRACY       85
Human Dignity
■
Most central of all human rights is the right to dignity1" It is the source from which all other human rights arc derived. Dignit)' unites the other human rights into a whole.153 It also constitutes a right in itself and is recognizee! as such in several constitutions.154 The right of dignity reflects the ''recognition that a human being is a free agent, who develops hi? body and mind as
■ See Edwin] | Ebcilc, Dignity and Liberty. Constitutional Visions in Germany and the United States 1 (2002); The Omeept of Human liignity in Human Rights Discourse (David Krctzmer and Eckart Klein eds., 2002); Human Dignity: This Century and the Next 3-97 (Rubin Gotcsky and Ervin Laszlo cds., 1970); Izhak Englard, "Human Dignity From Antiquity to Modern Israel's ("oimitutioiul Framework," 21 Cardoza L Rer. 1903 (2000); GP. Reicher, -Human Dignity as a Constiwtional Value," 22 UM'. Ont L ÄfF. 171, 171 (1984) ("No <mk would question whether live protection of human dignit)' «as a primary task of the contemporary legal culture"); A.I. Melden, "Dignity, Wbrrh. and Rights," in 77« Constitution ofRiglts- Human Dignity and American Values 29, 46 (Michael |. Meyer and William A. Parent eds., 1992) (~(A]ttcntion to human rights is of the first importance for the promotion of the dignity and the worth of human beings"); lordan |. Paust, "Human .Dignity as a Constitutional Right: A Jurisprudcntially Based Inquiry into Critcna and Content,"" 27 Hmr I..]. 143, 223 (1984) (u(H|uman rights law provides a rich set of general criteria and content lor supple mentation of pasi trends in Supreme Court decision)* j about human dig-nit)-"). Ser also Paulo Cesat Carbonari, "Human Dignity as a Bask' Concept of Ethics and Human Rights," in Dignity anil Human Rights; The Unpltinrntatiau of Economic-, Soiialand Cultural Rights (Bcrman Klein GoMcwijkcr al. cds.. 2002i '"Ste William |. Brcnnan, Jr., "The Constitution of the United States: Contemporary Ratilication," 27 S Tex. I. Rtv. 43í, 438 (1986t <~|'l |he Constitution is a sublime oration on the dignity of man, a bold commitment by a people to the ideal ů\ liberianan dignity protected through law"); Walter F. Murphy, "An Ordering of Constitutional Values." 53 í Cat I. Re*. 703, 745 (1980) ("The basic value in the United States Constitution, broadly conceived, has become -i concern tor human dignity").
'"The German Constitution, lor example, provides thai "|t|hc dignit»* of man shall be inviolable. To respect and protect it shall be the duty of all sure authority." F.R.G. Const, an. 1, translated in Basic Law far the federal Republic of Germany (1991) On dignity in the German Constitution, sec Currie, supra p. 22, note 9 at 314-16; liberie, supra p. 85. note 152 at 41; Kommers, supra p. 22, note 9 at 298. In Israel, Basic Law- Human Dignity and Freedom provides: "2. The life, bod)1 or dignity of any person shall not be violated ... 4. Every person is entitled to protection of his life, body and dignit»- ■
■    "
■


1	
.	
: i	
i"'"	
i   i	
'■	
:.	
'	
'	
■.'. '	
■■}	
1	
■	
•	
	.
;	
	
w	
.    ■• ..  ..
86       CHAPTER TWO
■
he wishes, and che social framework to which he is connected and on which he depends."1" Human dignity is therefore the freedom of the individua] to shape an individual identiry. It is the autonomy of the individual will. It is the freedom of choice. Human dignity regards a human being as an end, not as a means to achieve the ends of others.
When human dignity is expressly mentioned in a constitution, the scope of its application as a right is determined by its relationship with other rights, in accordance with the structure of rights protection in that particular constitution. Therefore, the same right of dignity may have a different scope in different constitutions.
In Israel's constitution, the right to dignity includes four elements. First, human dignity is the dignity of each human being "as a human being." This is the source of the viewpoint that human dignity' includes the equality of human beings.15* Discrimination infringes on a person's dignity. Human dignity assumes equality of the (other) rights that people have and equality of opportunity and benefits.
Second, human dignity is a person's freedom of will. This is the freedom of choke given to people to develop their personalities and determine their own fate. People arc spiritual entities who enjoy the freedom to develop themselves. This is the source of my view that at the core of human dignity is the autonomy of the individual will.
Third, human dignity is infringed if a person's life or physical or mental welfare is harmed. The death penalt)' contradicts human dignity.'" Life imprisonment with no chance of early release contradicts human dignity. Torture contradicts human dignity. Humiliation, blows, confiscation, forced labor—all infringe on human dignity. Human dignity is infringed when a person lives in humiliating conditions that negate his humanity. Human dignity
■ H.C. 5688/92, WrtheU*Mm R Minister of Dtf.t 47(2) P.D. 812, 827 (1st.). "'Uhjís  Henkin,  "Human  Dignity-  and  Constitution»!  Rights,"  in   77v Ctnaitjňiam ofRights: Human Dignity and Amtrican Valuti 212 (1992). "" Su S. í: Makwanrant {1995) 3 SA 391.437 Ic.c.) <SAfr.}.
PROTECTING  THB  CONSTITUTION   AND   DEMOCRACY       87
assumes the guarantee of the minimum conditions of (physical and mental) existence.
A person living in the street, with no home, is a person whose human dignity is infringed; a person who goes hungry is a person whose human dignity is infringed; a person who has no access to basic medical care is a person whose human dignity is infringed; a person (breed to live under humiliating physical conditions is a person whose human dignity is infringed.1"
Fourth, human dignity assumes that the individual is not a means for satisfying the needs of another individual. Every person is a world unto himself, and an objective unto himself. It assumes a society predicated on the desire to protect the human dignity of each of its members. Therefore, the right to human dignity cannot be infringed without an appropriate procedure. Harming a person without first granting a hearing infringes upon human dignity, Many rights of the accused derive from his dignity as a human being. For example, the presumption that every person is innocent until proven guilty by law is part of human dignity; the right of the accused to a fair trial is part of human dignity; the right of the accused to a speedy trial is part of human dignity. The right of a person to know the charges against him or why he has been arrested, and his ability to defend effectively against those charges, are part of human dignity. Thus, imposing criminal liability and criminal imprisonment for behavior that lacks a criminal mens ixn ("strict liability crimes") infringes on human dignity; imposing criminal responsibility on behavior that did not constitute a crime at the time it occurred infringes on human dignity.
Human dignity is not an absolute right. Unless otherwise provided,1*9 it may be infringed upon according to the limitation clause existing in the legal system. Thus, many provisions of the criminal law afiect dignity, but they are constitutional, since they comply with the limitation clause.
« L.C.A. 4905/98. Gamzu v Ttsharahu, 55(3) P.D. 360. 375. (Bonk, P.), '"Such a provision i* found in Article 1 of the German Constiiution.
88        CHAPTER  TWO
When human dignity is not mentioned expressly in a constiru tion, as is the case in the United States, Canada, and many other countries, the question arises as to whether human dignity can be recognized as a human right in these legal systems. A way of recognizing a constitutional right to dignit)' in those system* is through interpretation of specific rights, mainly the right to equality,1"0 It can also be recognized through interpretation of the whole biti of rights, whereby human dignity cither is implied by the overall structure of the rights or is derived from their "penumbras.*'""
CRITICISM AN» RESPONSE
The Criticism
I am aware thai my theory of the role of a judge ir/a democracy is not universally accepted. It may be said that legislation and adjudication serve wholly different functions and thaf a judge is neither a senior nor a junior partner of the legislatures It may also be said that my approach to the judicial role deparrs from the proper outlook on separation of powers and democracy, for democracy, both formal and substantive, is too importarlt to be Iťft to the protection of judges who arc not elected or otherwise accountable to the people- VVlio will guard the guardians/ It may even be argued that my approach is based on judicial/uimpcrialism,"'"s2 conferring on judges an inappropriately prominent status. These criticisms arc important, and I take them seriously. They accompany me always and restrain me always. However, there are proper answers to these criticisms. I do not clain/íľut the court can cure even' ill of society,, nor do I claim that it can be the primary agent for social
™ Sit Ijm> p. Canada [\999] 1 S C.B. 497. 507(Cín.).
'" Sff Griswrtd * Cenntttitut, 381 US 479,484 (1965) rlSJpeeific guarantee m The Bill of Rights have penumbra«, formed by emanations from those guarantee* thai help give them lite and substance").
w Sir NiuWGIjzct, "Toward an Imperial judiciary?" ř*t>. /mí.. Fall 1975. ľ 104.122.

PROTECTING   THB   CONSTITUTION   AND   DEMOCRACY       89
change. ° Ido not claim that the court is always the most effective branch for the resolution of disputes. My claim is much more limited: I claim that the court has an important role in bridging the gap between law and society and in protecting the fundaiTtcntal values of democracy, with human rights at the center.

The Role of the Judge as Creator of the Cfmmon Imw
Within ihc field of common law, almost a/<housand years of history validate my approach- If the common law does not mcrclv declare what has existed since time immemorial—and I do not think that anyone still believes this myth—then it is hard to deny the creative role of the judge in the common law. Judges created and developed the common Uw.ifl* fudges bridged the gap between law and society by gjyfng expression to the fundamental principles of society. And judges arc responsible for using the common law to fit solutions xv life's changing needs. Naturally, over the years, judges made .mistakes. But there were many achievements, too. It is diffieult to forget Lord Mansfield's statement, "the black must be discharged,"'*' releasing in 1772 a black slave who fled to England from his American master. Lord Mansfield issued this statement after the court heard from counsel for the slave that "the air of England was too pure for slavery."100 It was [he judge wfto declared and gave effect to the fundamental values on which/the common law is founded. The judge must protect and promote these fundamental values. In these activities, the main responsibility rests with the judge, the senior partner.
•" Set gmtrsUy Gciald N. Rosenberg, The Ho/lov Hopi: Can Courts Brinji «hour Social Cl/anßif 343 f 11*91) (examining the ability of courts to enact social change and concluding that "(t|o ask [courts] to produce significant social reform is to forget their history and ignore ihcir constraints").
■" See MA. risenberg. The Nature of the Common Lawy (1988); Miíhad McHugh, "The Law-Making Function of tltf Judicial Process,- 62 Ausif. LJ. 15,16 (1988). """The Case of lames Sornmcrsctt." 20 Hos> Sr. Tr 1,82 (K.B. 1772). •* Id. at 79.
		ijjH
		!*ij
		■&
		'  Í.-Í
		M
■		' cl
	'■	'   v\
		i
		■   ..
	.	,'"
		''■'.{..
•$*