The Gazette 1990

GAZETTE

' APRIL

1990

judge makes a choice when he or she has a number of reasonable options. Justice Barak argues that the reasonableness of the choice is determined by the judge's world- view. This, in turn , is based on his or her human experience and on social principles and policies which establish his or her conception of the judicial function. Further, Justice Barak argues that a decis- ive component in the determination of the reasonableness of the choice is the judge's personal experience: his or her education, personality and emotional makeup. Some judges are cautious; others are less cautious. Some judges will insist on a heavy burden of proof before deviating from the existing law; others are satisfied with a light burden of proof. Some judges are more impressed than others by the writings of authors, scholars and other judges. Every judge, noted Justice Barak, has a complex human experience that influences his approach to life and therefore his approach to law. In writing on the zone of reason- ableness and judicial objectivity, Justice Barak asks who is the reason- able judge? Every judge seems to think that he himself or herself is the reasonable judge. When a judge describes the reasonable person, in most cases he or she is thinking of himself or herself. Justice Barak argues that just as every person is not a reasonable person, neither is every judge a reasonable judge. The author argues that reasonableness should be an objective matter. For example, when the judge is required to identify the values of society, he or she should look for those values that are shared by the members of the society, even if they are not his own. The judge should avoid im- posing on society his or her subjective values, to the extent that they are inconsistent with the articles of faith of the society in which he or she lives. Coke wrote of "the gladsome light of Jurisprudence". Cardozo said that he was not aware that men resort to the opinions of the courts as a spiritual elixir in the hours of depression. Nevertheless, Justice Barak has written a monu- mental work which will be of benefit to those interested in the process of adjudication - an essential element in a democracy. Eamonn G. Hall

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BOOK RE

Justice Barak discusses the man- ner in which judicial discretion is exercised and concludes that it is the judges' judicial philosophy - the product of their experience and worldview - that determines their choices. He argues that judges should realise that they operate within a legal system that has a life of its own and that their decisions should fit the organic growth of the system and develop its funda- mental values within a framework of continuity and consistency. Justice Barak has been deeply influenced by Justice Benjamin Cardozo's trilogy - The Nature of the Judicial Process (1921), Growth of the Law (1924), and Paradoxes of Legal Science (1928). There are indications in the book that Justice Barak is attempting to provide a modern supplement to Justice Cardozo's seminal classic, The Nature of the Judicial Process. In his classic study, Justice Cardozo, from 1932 to 1938 Associate Justice of the United States Supreme Court, described in simple and understandable language the conscious and unconscious pro- cesses by which a judge decides a case. Justice Cardozo discussed the sources to which the judge appeals for guidance and analysed the contribution that considera- tions of precedent, logical con- sistency, custom, and standards of justice and morals have in shaping the judge's decision. Justice Barak's contribution is a worthy sequel to that of Justice Cordozo. Justice Barak writes with balance, restraint and clarity. One issue which fascinates those who take an interest in the process of adjudication is how the

J UD I C I AL D I SCRE T I ON. By Aharon Barak. [London: Yale Universtiy Press. 1989. xiv and 266 pp. £22 . 50 sterling, hard- back.] In court, Christian witnesses swear by Almighty God. However, the declaration which each judge in Ireland makes on his or her appointment is made "in the presence of Almighty God". The newly-appointed judge promises that he or she will to the best of his or her knowledge or power execute the office of judge "without fear or favour affection or ill-will towards any man" and that he or she will "uphold the Constitution and the laws" (Article 34.5 of Bunreacht na hÉireann). The sacredness of the judicial office is emphasised by the fact that the declaration is made in the presence of Almighty God. Further, at the end of the declara- tion, God is invoked to "direct and sustain" the newly-appointed judge. The upholding of the Con- stitution and the laws of the land leaves a reservoir of discretion to the Irish judge. Aharon Barak has been a former law professor at the Hebrew University Law School, dean of the Law School, Israel's Attorney General and since 1978 has been a member of the Israeli Supreme Court. The central issue in this book is how should the judge exer- cise his or her discretion when he or she is faced with a legal problem that has more than one lawful solution. The thesis of the book is that judicial discretion is not absolute. Judicial discretion is limited. The zones of lawful options are narrow - but they do exist.

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