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By Aharon Barak


This part is collapsed half ONE: THE function OF THE JUDGE
This part is collapsed half : THE technique of knowing THE JUDICIAL ROLE
This part is collapsed half 3: the connection among THE court docket AND the opposite BRANCHES OF THE STATE
This part is collapsed half 4: assessment OF THE function OF A pass judgement on IN A DEMOCRACY
This part is collapsed Index

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I address them because they are relevant to the two roles of a judge in a democracy that I focus on here. For an extensive discussion of these two models, see Ronald A. Cass, The Rule of Law in America 46–97 (2001). Cass claims that the prevailing model in American law is the “weak agency model,” in which the judge acts as a translator. See id. at 49, 92–97. I disagree. See also Kennedy, supra p. xi, note 8; Lucy, supra p. xi, note 8. 37 See Richard A. Posner, The Federal Courts: Crisis and Reform 286–87 (1985); Frank H.

28 The dispute may be of a private nature or of a public nature; it may be concrete or abstract; it may involve only situations where there is a “case and controversy” (as in the United States) or it may do without it (as in Germany); it may be—as in the Canadian reference—of an advisory nature. But there must always be a dispute. Regarding the different possibilities, see Allan-Randolph Brewer Carías, Judicial Review in Comparative Law (1989); C. Neal Tate and T. Vallinder, The Global Expansion of Judicial Power (1995).

D. 1, 14. 36 See supra p. 000. A. 1/65, Yardor v. Chairman of Cent. Elections Comm. D. 365, 390. A. 7504/95, Yassin v. D. 45, 62. A. 11280/02, supra p. 30, note 35 at 21. A. 7504/95, supra p. 30, note 38 at 63. A. 2/84, supra p. 29, note 34. 35 PROTECTING THE CONSTITUTION AND DEMOCRACY 31 an antidemocratic list cannot be denied the right to participate in elections. I took a different view in my opinion in that case. My opinion was—and it remains to this day—that a list can be prevented from participating in elections because its goals are to negate democracy, even in the absence of an explicit statutory provision, if there is a reasonable possibility that the list’s participation in elections will harm the democratic character of the state.

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