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Israel Studies 3.2 (1998) 6-29

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The Role of the Supreme Court in a Democracy

Aharon Barak


The Supreme Court as a Branch of Government

BY VIRTUE OF OUR CONSTITUTIONAL structure, the president is the head of state. The president symbolizes national unity and reflects sovereignty. The state itself has three main organs through which it functions. These are the three branches of government: the legislative, the executive, and the judicial. The legislative branch creates the laws of the state. This is its primary role. It also oversees the executive branch and, under certain conditions, may override it. The executive branch determines and executes the policies of the state. The judicial branch adjudicates disputes brought before it. These three branches of government are conferred equal constitutional status. All three organs are a product of our constitution—a product of our Basic Laws. They function according to a relational system of "checks and balances" which was designed to ensure that each branch remains within the confines of its authority and that no branch will wield unlimited powers. The purpose of the checks and balances is not government efficacy; it is to ensure the liberty of the individual.

In this system of authorities, the role of the judicial branch is to arbitrate disputes. Such adjudication is grounded in three main functions: First is the determination of facts. From the complex web of facts one can extract those relevant to the adjudication of the dispute. Second are the determinations of law. From the complex web of laws, one can extract the law according to which the dispute will be decided. The third function is the application of the law to the facts and deducing the requisite judicial conclusion. The main task of carrying out the first and third functions is performed by the first legal instance within the framework of the judiciary. The main task of carrying out the second function is placed upon the Supreme Court. This second function—determination of law—is simple in cases in which [End Page 6] the law is known, accepted, and certain. In these cases, the Court merely attests to the law's existence. It does not create a new norm. The court is, in the words of Montesquieu, a mouthpiece for the legislators or the constituent authority. However, the law is not known and accepted in all cases. There exist "hard cases" in which the law is uncertain; in such cases, there is more than one legal or constitutional option available. There may be more than one legal interpretation; the rubric in the basic laws provides a number of interpretations; the "Israeli version" of the common law enables a range of solutions or developments—a variety of possibilities which may be deduced from Israel's heritage. In such situations, the declaration of the law by the Supreme Court is also judicial law-making. The law that existed prior to a judicial determination is not the same as that which existed subsequent to it. Before a judicial determination, the statute or basic law spoke with a number of voices. After a judicial determination, the statute or basic law speaks with a single voice. The transition from the uncertainty of multiple possibilities, to the certainty existing in one solution, involves not only a declaration of law, but also creation of law. This is "judicial legislation." In this judicial law-making, the judge has discretion. He is not merely reflecting the existing picture of the law. He also paints the picture with his own hands. Judicial law-making is different from the creation of law undertaken by the constituent assembly or the legislators. They were designated to create laws. The law-making undertaken by them is abstract. In contrast, the judicial branch was not established in order to create laws. It was established in order to decide concrete disputes. Law-making by the judiciary is incidental to the adjudication of disputes. Indeed, the primary function of law-making is granted to the legislative and constitution-drafting branches of government. The law-making undertaken by the judicial branch...


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