Law Opinion
Rearview mirror of justice, laws and courts
The notion of justice is as old as human existence in the earth unlike to the concept of laws and courts. The 'absolute monarchy' started with the idea of 'King can do no wrong' and ended with the perception 'king is also under the law' paving the way for 'limited monarchy'. With the empowerment of upper middle class in the name of common people, the perception of democracy entered with a view to minimizing the gap of injustice of some tyrannical aristocrats.
From the idea of 'rule of man', the thought 'rule of law' heralded but the popular name of democracy still serves the interest of some 'elected elites'. The difference between the haves and have-nots still predominantly persists reflecting two giant evils- inequality and injustice worldwide.
The status of rule of law is seemingly a metaphor. At present, 135 of the world's 206 sovereign states use the word 'Republic' as part of their official names but democracy is struggling almost in all countries as it is redesigned as 'oppression of the majority'.
The quote of Abraham Lincoln on democracy as 'a form of government of the people, by the people and for the people' was a synthesis of the noted political treatise 'Republic' of Greek philosopher Plato. However, democracy is not a panacea because the Chinese along with a good number of states are happy with socialist as well as communist ideologies while still some countries in the Middle East are patronising modern monarchy in the backdrop of Arab Spring.
Laws and courts do not play equal role as to developed, developing and least developed countries. In developed states laws and courts have dominating role while in developing countries laws and courts have progressive role. But in least developed countries laws and courts have less significant role while people are leery of laws and courts.
However, showing apathy and distrust on laws and courts, people again trying to popularize ADR going back to the basics of religious and social norms of peace and harmony. Long ago, Chinese Philosopher Confucius taught their people that law can play only secondary role not primary one to regulate human life and society. The Chinese still believes that going to court means 'to get a goat selling a cow' and also imbibed with a taboo 'in death avoid hell and in life avoid law courts'.
The concept of law to a capitalist, a socialist, and a communist differs creating division in western and oriental philosophy. Perhaps, to a working class of people 'law is a tool of oppression used by the ruling class to advance its own interest'. Honoré de Balzac, a nineteenth-century French novelist and playwright says, “Laws are spider webs through which the big flies pass and the little ones get caught.”
Herbert Spencer, a British philosopher points out that civilizations and laws are the products of biological, organic evolution, with the struggle for existence, natural selection and survival of the fittest coinciding with Darwinism. He opines civilization as a gradual progress of social life from simple to more complex forms, from primitive homogeneity to heterogeneity.
Charles Dickens in his dramatic novel 'Great Expectations' says that there is nothing so finely perceived and felt as injustice. Thrasymachus, a sophist of Ancient Greece best known as a character in Plato's Republic terms justice 'as whatever the strongest decide in their best interest'. Socrates dismisses this argument by proving that the strong rarely figure out what is in their best interest, and this cannot be just since justice is a good thing.
The basis of justice, according to Socrates, is that you do what is socially most beneficial. Tragically, Socrates was the victim of injustice which haunted him even before the execution. Before swallowing the 'hemlock' he emotionally uttered before the court, “the hour of departure has arrived, and we go our ways. I to die and you to live, which is the better, only God knows”.
After devoting his entire existence to figuring out the meaning of life, even he didn't know the answer and ultimately left it to nature. His disciple Plato uttered that 'just men are happy and unjust men are unhappy after the demise of his peer as part of non violent protest.
Nobel laureate economist Amarta Sen in a public speech on “Justice and India” at Kolkata in 2009 humorously uttered, “Justice for many is like trying to find a black cat in a dark room, however if you can throw some light, it is not dark anymore” He added that justice is about stopping severe injustice not about a utopian notion of justice.
“Justice is fairness” based on 'social contact theory' of US leading political philosopher John Rawls relying on the theory of “just society” founded on “liberty and equality”. Rawls openly acknowledges that the world's poor have no place in his 'A theory of justice' published in 1971. On the other hand, according to Nobel Laureate Indian economist, justice is a “social value” based on diverging ideals and he thinks that 'just society' is a vague concept because a society may be “more or less just” in a comparative approach in line with his noted book 'the Idea of Justice' published in 2009.
To a capitalist justice is the result of price while to a sociologist justice is a value. If justice is a value then it is the duty of all to ensure justice in the respective fields.
Consequently, all judgements are not justice rather they are decisions based on evidences and sometimes on hunches. Lord Hewart in R v Sussex Justices [1924] 1 KB 256 at 259 opines: “… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
In a survey in 1999 conducted by the National Center for State Courts (NCSC) assisted by Hearst Corporation, an American mass media group, it was found that the US trial courts aims five points namely i) access to justice, ii) speedy and timely trial, iii) equality, fairness and integrity iv) independence and accountability and v) public trust and confidence. In the survey it also reveals that two-thirds of the American think access to justice is very expensive, 87% feel trial is not speedy, 50% think Blacks, Hispanics and Asians are not getting justice, and 80% reckon that the US judiciary is for rich.
More than 81% of respondents strongly feel that judges' decisions are influenced by political consideration and 78% agree that elected judges are influenced by having to raise campaign funds. Moreover, 90% people feel that they do not have trust and confidence on courts. The summary of the survey report was that the US trial courts have failed to fulfill their own set aims.
Justice Rodger K. Warren, President of the NCSC said that the main purpose of such type of survey was to assess the thoughts of people on courts, trial and justice before entering into the 21st century. However, in another survey of the NCSC in 2000 the trust and confidence of the Americans were seemed to be raised to a large extent on 'Procedural Justice'. In the second survey on procedural part of justice there were emphasis on i) neutrality ii) respect iii) participation and iv) trustworthiness.
If this is the scenario of the USA then what about other countries in which elected governments put assignment to some politically appointed judges to serve their purposes of justifying the unjustified issues? In the name of 'managed justice' through judgements, some judges are dividing the nations politically while they are obliged to ameliorate the rifts or division among people for the interest of peace, harmony and tranquility within people and society. The seat of Judge is seat of god. Besides powers and discretion it holds responsibilities and duties. Judges are also bound by law and they should not impart their emotions and futile comments.
The writer is a Senior Lecturer of the Department of Law & Justice in Southeast University, Dhaka.
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