What's a Judge To Do?

Abstract

Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005. Translated from the Hebrew by Sari Bashi. Pp. xx, 423. $45.00 (cloth). Holmes famously declared, "[I]f my fellow citizens want to go to Hell, I will help them. It's my job." In this, as in many of his pithy aphorisms, Holmes exaggerated for effect, and few judges would describe their role in quite those terms. But Holmes's meaning was plain: A judge's role is not to implement his or her own vision, but rather to permit the implementation, consistent with constitutional limitations, of the public's agenda as expressed through democratic political institutions, even if the judge believes that agenda is foolish. And it was, of course, Holmes's willingness to uphold social legislation despite his private doubts about its efficacy or wisdom that helped establish his place in American history. Aharon Barak has a different take on the judge's role. In his view, "the role of the judge is to help bridge the gap between law and society's changing needs ...." When interpreting a statute, a judge is to look for the "purpose" of the statute, which, Barak asserts, will be determined by the "'fundamental values of the system and fundamental human rights"' (p. 171). "[T]he judge should give a statute the meaning that responds to society's needs and protects democracy" (p. 285). In the many aspects of the judge's role in which, according to Barak, the judge may exercise discretion, he or she should "choose the solution that seems best to him or her," and, in his view, "that solution is the one that the judge thinks is just" (p. 212). These passages, like the quote from Holmes, exaggerate the more nuanced view of the judicial role that emerges from Barak's new book, Purposive Interpretation in Law. Yet they clearly point to a theory of judging that is far more expansive and unconstrained than most American judges would recognize - or that they or the public likely would accept.