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GAZETTE
' APRIL
1990
ÍPp!
BOOK RE
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.
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
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
73