Link to original article: https://www.counterpunch.org/2022/02/25/reflections-on-law-and-justice/
Photo credit: United Nations (UN)
The old adage that Justice is blind is being challenged by many lawyers and sociologists who maintain that Justice cannot be neutral, that the function of justice is to condemn the bad and protect the good. Hence the question arises whether Justice is neutral or teleological? This frequently asked question is ultimately artificial. The tension between the two options can be resolved.
Justice, like truth, is an absolute term. But an absolute term with nuances! What we mean is that the process to arrive at justice must be objective and impartial, so as to facilitate a just and equitable result. Moreover, we must not amalgamate the concepts of “law” and “Justice”, which admittedly overlap. In fact, they frequently mean different things and can even be opposites. While Justice is a form of ethics, a metaphysical value related to truth, law is a man-made norm or “rule of the game” that always remains work-in-progress, by nature incomplete and time-bound, thus frequently opportunistic, obsolete, lagging behind the times.
The vocation of the administration of Justice is to practice “fairness” and impartiality so as to strengthen what is good, redress wrongs and protect the oppressed. In this sense, Justice (the outcome) cannot be neutral, and by necessity must be teleological. What must be neutral is the methodology to arrive at and to enforce Justice even-handedly, uniformly, predictably.
A judge must start every judicial investigation with an open mind, proactively seek all relevant facts, double-check sources, consider all the information obtainable, listen to all arguments – audiatur et altera pars – look for motivation, weigh-in merit, performance, put events into context, so as to be better able formulate a reasoned opinion. This conclusion, a judgment arrived at through objective methodology, can no longer be “neutral” – otherwise the whole fact-finding and evaluation procedure would be useless.
A judge does justice by establishing the facts and applying law non-selectively, rejecting double-standards. Yet, neutrality does not mean blindness, and the judge should never become a computer who automatically and perfunctorily applies the laws without considering the specific circumstances and the probable consequences, because statutes and norms themselves may be deliberately or inadvertently unjust – such as much of tax legislation with built-in loopholes for the rich, legislation establishing privileges and tax havens, legal constructs that facilitate money-laundering, the old laws on slavery and the stave trade, Apartheid laws, Kafala norms, Hitler’s Nuremberg laws, land-grabbing laws, etc.
The judge must keep the spirit of the law in mind and try to interpret legislation – and a country’s Constitution — accordingly. Beyond applying the statutes in force, the judge must respect the underlying “general principles of law” (article 38 of the ICJ statute). Among these general principles are good faith, the necessity to listen to all sides (audiatur et altera pars), reciprocity, estoppel, the “clean hands” doctrine, the “do no harm” rule (going back to Greek and Roman law, primum nil nocere), the rule against abuse of rights (sic utere tuo ut alienum non laedas), the rule that no one can derive benefit from his own violations of law (ex injuria non oritur jus), and the relevance of cause and effect.
If Justice were mathematics, one would not need judges, but only computers. That is why an appeal to “natural law” is frequently made, precisely because many statutes actually perpetuate injustice. As Cicero put it, “summum jus, summa injuria” – an excess of law, or the blind application of the law can lead to gravest injustice. Themis, the Greek goddess of Justice, was not blindfolded, she carried a sword to separate fact from fiction, and to make clear that her decisions were fast and final. When Themis was ignored, Nemesis, the goddess of revenge, would impose retribution.
Since the 16th century, Iustitia, the Roman goddess of Justice, sometimes called Lady Justice, is often depicted wearing a blindfold, a metaphor suggesting impartiality, since Justice must decide without preferences according to race, colour, religion, political opinion or social status. The blindfold, however, was an unwise innovation that has done more harm than good. Indeed, a judge must not be blind, but instead sharpen his vision so as to recognize the abuse of power through law, what today is sometimes referred to as “lawfare”, the instrumentalization of law as a weapon to destabilize and destroy economic or political adversaries. While a judge is responsible for ensuring that “justice is done”, he must do this with open eyes and ears, interpreting and applying statutes and jurisprudence in context and with flexibility, understanding and vision, so that fairness and equity prevail.
In order to arrive at Justice, law must create a framework that is both preventive and curative; it should nourish an environment where Justice can flourish, where the administration of justice is impartial and has credibility by virtue of its clarity and predictability. Justice does not emerge from a “virgin birth”, nor can it be achieved through a “tabula rasa” approach, disregarding the prevalence of historical inequities, existing imbalances and privileges. The continuation of these inequities is incompatible with Justice, which is not mere rhetoric or proforma compliance with law, but requires a continuous implementation of rights and obligations and a conscious redressing of wrongs so that all human beings can pursue their well-being in larger freedom — and in solidarity with the rest of society.
Whereas Justice is the goal, law is only one of the many ways to advance toward Justice. Other avenues are truth and reparation commissions, emergency decrees, social activism, humanistic and religious caritas.Yet, in many countries, including democratic governments, law can be used to impede Justice, undermine and frustrate it. Justice must satisfy many criteria – must be contextual and universal. By its very nature, all legal regimes are incomplete, because the legislature does not enact all the laws that may be necessary, nor does it abrogate all the laws that have become obsolete. Law is punctual, aimed at addressing a particular issue, and rarely can it incorporate all relevant facets and factors. Thus, in most cases, law cannot and should not be considered as absolute, sacred, categorical or inexorable – but instead must allow for flexibility in its interpretation and application. It is the function of judges to interpret the law in a manner that will advance Justice.
The law may be blind – but the judge must never be. Nor can the judge capitulate to positivism by allowing the letter of the law to corrupt and deny the spirit of the law.
Alfred de Zayas is a professor at the Geneva School of Diplomacy and served as a UN Independent Expert on the Promotion of a Democratic and Equitable International Order 2012-18.