The chief justice of the Israeli Supreme Court presents his views of democracy I am not a philosopher. I am not a political scientist. I am a judge – a judge in the highest court of my country’s legal system. So I ask myself a question that many Supreme Court judges – and, in fact, many judges on all courts in modern democracies’ ask themselves: what is my role as a judge?

According to my judicial philosophy, the main two roles of a judge – Supreme Court Judge – in a democracy, are to bridge the gap between law and society, and to protect democracy and its constitution.

Indeed, if we wish to preserve democracy, we cannot take its existence for granted. We must fight for it. This is certainly the case for new democracies, but it is also true of the old and well-established ones. The assumption that ‘it cannot happen to us’ can no longer be accepted. Anything can happen.

If democracy was perverted and destroyed in the Germany of Kant, Beethoven, and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know whether the judges in Germany could have prevented Hitler from coming to power in the 1930s.

But I do know that a lesson of the Holocaust and of the Second World War is the need to enact democratic constitutions and ensure that they are put into effect by judges whose main task is to protect democracy. It was this awareness that, in the post-World War II era, helped promote the idea of judicial review of legislative action and made human rights central. It led to the recognition of defensive democracy and even militant democracy. And it shaped my belief that the main role of the judge in a democracy is to maintain and protect the constitution and democracy.

What is democracy? According to my approach, democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections held on a regular basis, in which the people chooses its representatives, who in turn represent its views. This aspect of democracy is manifested in majority rule, and in the centrality of the legislative body through which the people’s representatives act. This is a formal aspect of democracy.

The second aspect of democracy is reflected in the rule of values (other than the value of majority rule) which characterizes democracy. The most important of these are separation of powers, the rule of law, judicial independence, human rights, and basic principles which reflect yet other values (such as morality and justice), social objectives (such as the public peace and security) and appropriate ways of behavior (reasonableness, proportionality and good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy.

Both aspects – the formal and the substantive – are necessary for democracy. A regime in which the people are not sovereign, and the legislative and executive branches do not represent it, is not a democratic regime. A regime devoid of the separation of powers, the rule of law, the independence of judges, human rights and fundamental values is not a democratic regime. Indeed, a regime in which the majority denies the minority of human rights is not a democratic regime.

One should not forget that a large part of Israels population immigrated to Israel from the Near East and from Eastern Europe – places where there are no democratic traditions.

Democracy is thus young in Israel. Furthermore, because of English influences, many view democracy in formal terms. Parliament, for them, is omnipotence. Furthermore, for a variety of reasons, the concept of ‘it is not done’ is not a central part of governing in Israel. Israel lacks a rigid constitutional framework. Basic structures and concepts can be changed by bare majorities. The protection of those structures and concepts needs judges who see their role as protectors of our constitution and democracy.

Human rights in Israel until 1992 were largely the creation of the courts. Since 1992 some of them are embodied in two basic laws. The Supreme Court interpreted those basic laws to mean that the courts have review power of the constitutionality of these laws.

The Parliament and the Executive branch are following this decision. In order to properly fulfill such power, one needs a judicial philosophy that views the protection of human rights as a major role of the judges. Such philosophy is especially important when a country is under security risks.

The political non-accountability of Israeli judges makes us fit to protect human rights against excessive demands of security. And so we decided that interrogators cannot use torture in order to protect us against a “ticking bomb” situation; that the security fence, in some parts, is illegal. And so we are asked to decide about the legality of the disengagement from Gaza Strip and the northern part of the Shomron.

Israel is a militant democracy. In order to be militant and still be a democracy, Israel needs judges that do believe that the protection of Israel’s democracy is their main task.

Does all this affect the confidence of the people in the judges? I don’t know. Polls of Israeli public opinion show that judges in Israel have – like the Israel Defense Forces – the highest rate of confidence. It may of course change. I do believe that at this stage of our national development we need judges with a strong commitment to democracy and its protection. In better times, things may, and probably will, change.

I regard myself as a judge who is sensitive to his role in a democracy. I take seriously the tasks imposed upon me. Despite frequent criticism – and it frequently descends to personal attacks and threats of violence – I have continued on this path in the twenty eight years I am on the Court. I hope that by doing so, I am serving my legal system properly.

Indeed, as judges in our country’s highest courts, we must continue on our paths according to our consciences. A heavy responsibility rests on our shoulders. But even in hard times, we must remain true to ourselves.

As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and non-disabled – all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the human dignity of each. I do not aspire to power. I do not seek to rule. I am aware of the chains that bind me as a judge and as the President of the Supreme Court. I have repeatedly emphasized the rule of the law and not the rule of the judge. I am aware of the importance of the other branches of government – the legislative and executive.

I view my office as a mission. Judging is not a job. It is a way of life. An old Talmudic saying regarding judges is the following:

“You would think that I am granting you power…

It is slavery that I am imposing upon you.”

But it is an odd sort of slavery, the purpose of which is to serve liberty, dignity and justice. This is the promise which accompanies me to the courtroom daily. This is my concept of judging in a democracy.

(Excerpts from a lecture delivered at Honorary Doctorate Ceremony, Ben-Gurion University of the Negev, May 30th, 2006)