The Judge In A Democracy

Tension is Natural and Desirable

Tension between the courts and the other branches is natural and, in my opinion, also desirable. 

 

If the court's rulings were always satisfactory to the other branches, it would raise suspicion that the court was not properly fulfilling its role in the democracy. 

 

Thus, criticism of the court's rulings is proper and benefits the court itself, for this criticism helps to guard the guardians. 

 

Indeed, the constant tension between the judicial branch and the other branches stems from their distinct roles. Their different functions are based on different points of view, which in turn lead to a different perception of reality. It is much like different perspectives different viewers have of a statute, based on their viewing angle. The legislative viewpoint is political; the judicial viewpoint is a legal one. The other branches seek to attain efficiency; the courts seek to attain legality.

 

Matters begin to deteriorate, however, when the criticism is transformed into an unbridled attack. Public confidence in the courts may be harmed, and the checks and balances that characterize the separation of powers may be undermined. When such attacks affect the composition or jurisdiction of the court, the crisis point is reached. The condition may signal the beginning of the end of democracy.

 -Justice Ahron Barak, 

Retired in 2006 as

President of the Supreme Court of Israel 

Kartikey.