Wrought with frustration, he came up with this classic response, perhaps in reference to the unyielding nature of the law. This reminds me of the “Dura lex, sed lex” principle, Latin for “the law is harsh, but it is the law.”
Several decades after the publication of Oliver Twist, a celebrated trailblasing English judge named Lord Denning observed, “The law is an ass.” Is that your view about the law? Especially in cases where you feel it defies logic and runs contrary to the principles of justice? I want to acknowledge the seeming tension between two elements that are crucial in fostering the evolution of jurisprudential refinement, the law and justice. Which one of these is more important, thereby rendering the other subservient?
In the development of justice, the two main players are the legislature and the judges. The former promulgates laws that usher order into the society and regulates a judicial system that is genuinely concerned with the evenhanded dispensation of justice. The latter’s interest is more focused on interpreting the law and if necessary, meting out appropriate punishment. Justice ranks high in the hierarchy of the quadrivium civic virtues, abutted by wisdom, temperance and courage. Justice depends on how judges use these virtuous attributes as a failsafe barometer in their relentless pursuit of justice. Doing so, unshakably rivetted to a savvy sense of discipline, and compelled by the incredible staying power of moral reserve and emotional self-restraint.
A crucial aspect of the law is to render justice. Laws are the stable foundation of justice. The most rudimentary sense of true justice is anchored on a set of rules, which practically serve as perennial tributaries feeding into the wide mouth of the river overflowing with justice. In a court setting, the law cannot upstage justice, neither can justice blindside the law, simply because the two complement each other. Under no circumstances should the law be allowed to overshadow justice. Laws cannot be used as missiles that force officers charged with executing judicial responsibility to bury their heads in a carapace of injustice.
The topography of the justice system is rooted on a practical and robust infrastructure, underpinned by factors that are germane to impartiality, fairness, and equality. For this reason, judges tend to pivot towards an impeccable sense of justice that guarantees these fundamental elements of justice. Anthony D’Amato, a professor of law at the Northwestern University asserts, “Justice is what judges should render.” Though the articulacy, coherence, and persuasiveness of the opposing parties in ventilating legal arguments might impact verdicts, while careful not to dismiss the law as inconsequential, a fair judge would choose to be guided by his overarching sense of justice. Strict adherence to the law must never render the execution of justice futile, simply because justice is integral to the rule of law and vice versa.
It would take an astounding degree of outrageousness to assume that judges are inanimate less than human digital objects, devoid of human sensitivity generally associated with sound judgement. Although judges may want to give the impression that specific laws always tie their hands, the truth is, their duty in interpreting the law often transforms them into quasi-legislators, endowed with an element of reasonable discretion, but not infinite latitude. A superficial application of the law can lead to the gravest and most vile violation of justice. Particularly where the law does not define all unique elements applicable to a specific case. It would be unreasonable to expect the legislature to cover all possible scenarios when drafting laws. This gives rise to the concept of flexibility in pronouncing judgements that maintain a delicate balance between that which is morally acceptable and that which is directly accommodated by the spirit of the letter of the law.
Shrewd judges often take advantage of their position and eruditeness to recognise apparent limitations of the law and would deliberately pursue the course of synthesising legal provisions by plugging any gaps created by ambiguity. However, this leeway must not be abused. Any unstable jurisprudential system that is compromised by subjectivity, unpredictability, unfairness and inconsistency quickly loses the respect of the citizenry. The same applies to any state-legitimised acts of injustice veiled as unchallengeable fiat.
For this reason, the maxim, stare decisis et non quieta movere, which translates to ‘stand by decisions and do not disturb settled matters,’ is crucial to upholding equity and equality. A functional infrastructure of justice is always inclined towards predictable outcomes. For this reason, judges cannot be seen to be living inside echo chambers where justice and human liberty rest on their emotional whims and subjective calls. Well-reasoned judgements in previous cases should reasonably dispel frustration likely to be occasioned by the unpredictability of verdicts.
Notwithstanding that, in cases where the facts are clear and incontestable, the so-called ‘open and shut cases,’ perceptive lawyers tend to shy away from telling their clients that they can be sure of a particular verdict. Why? Because each trial is unique. Legal dynamics differ from one case to another. Driven by a sense of justice, as opposed to a cold application of the letter of the law, the judge might sway arguments in a way that would bring into the courtroom a welter of issues the litigating parties might not have considered.
Judge Benjamin Cardozo, who served as an associate justice of the Supreme Court of the US observed, “I was much troubled in spirit in my first years upon the bench...I sought for certainty. I was oppressed and disheartened when I found out that the quest for it was futile...As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become more reconciled to the uncertainty, because I have grown to see it as inevitable.” The path taken in ventilating arguments often differ from case to case, even in cases where facts are broadly similar. In their execution of justice, are judges forced to be obedient to all laws? Astute and emotionally intelligent lawyers recognise that by nature, the people are not inclined to be obedient to unjust laws, and their legitimate expectation is that judges would respect this inherent right. With a throbbing sense of vitalism, judges must place a higher value on the dispensation of justice because justice is a fundamental human right, not a privilege. In appreciation of their moral obligation to leave an unerasable footprint on the landscape of justice, discerning and venerable judges would not play Russian roulette with lives of individuals.
Out of a cautious and rarefied habit of mind, and instinctively shaped by the principle of fairness, judges would never place their dignity and integrity on the line by pushing the limits of ethics and sheepishly cowering to the interests of the appointing authority at the expense of botching justice. The unpleasant whiff of political expediency would neither lurk in the shadows of verdicts reached nor in the appointment of judges. The key determinants to an autonomous judiciary, rightly insulated from unwelcome executive overreach, would be a keen yearning for upholding justice supported by a transparent and above-board merit-based elevation to the bench.
The laws governing slavery in Europe and the Americas, and oppressive ones during the years of apartheid South Africa were known to be unjust. Black people chose to disobey a suite of patently unfair laws. Some conservative judges were brutal in their cold application of oppressive laws. However, the more liberal judges, whose concern leaned heavily towards justice, applied the creative power of their brain and succeeded in finding ways of circumnavigating the unjust laws, even if it meant dismissing cases on the strength of technicalities that could not be faulted by superior courts. Of course, it would take courage and wisdom for judges to ensure that they do not allow the charm of glib-tongued and shamelessly manipulative lawyers to dupe them into subverting the law. Martin Luther King Jr. once cautioned, “A just law is one that is consistent with morality.” This implies that laws can be inconsistent with morality and by extension unjust. The words, laws and justice, converge on this key principle that the law’s central mission is to promote justice. One can only hope that in executing their hallowed role of interpreting the law and dispensing justice, judges will always serve as irreproachable wardens of fairness, impartiality, and equity.
