Monday, September 14, 2009

Judiciary and rights- what are they really?

(Journey in a Broken World)

Article by Marc Aupiais


Given my area of study- I must surely have some confidence in the judicial system- granted, but that does not mean I see it as more than it is. Let us not believe that Constitutions are about justice, or democracy is about the will of the people.

Gaius, in his Institutes says that every nation has their own Ius Civilis, and is also bound by the Ius Gentium. here he speaks of Natural law, and its comparison to the purely human law.

Natural law is a vital concept, on this concept any conception of human rights or justification of the justice system rest. It is a debated concept, and sadly- most modern legal systems are too politicized to hope to delve into it.

We are too centered on right and left, liberal and conservative, to ask what life actually is, and what is actually best. Natural law, is ascertainable by natural reason. It is the law governed by logic. I would argue that in fact- Natural law is far too dynamic to be consigned to simple, idealist things like basic rights of men.

Natural law, is the law ascertainable by logic, by which we judge what is best. What is best- is what betters life, and extends it, is what causes it to strain at the ordinary, right into excellence.

Natural law is different than divine law, for divine law is not ascertainable by logic and reason alone. Natural law is different than the laws which nations of adopt, but it resonates in the laws of all nations, and the democracy of international humankind.

As for judiciary, the concept of the modern judge, has its roots, not in the average citizens who were appointed judges in Ancient Rome, but in the role of the Praetor, whose duty it was to ensure fairness, in accordance with the Ius Gentium, in accordance with Natural Law.

Lower judges in our age and nation are bound by the decisions of higher courts. And the courts determine what the laws of the land mean, and when they must be curbed or rewritten subtly by their pen.

In this modern day and age, nations have emerged with constitutions, what some call a nation's pure law. With these have come bills of rights of some or other sorts, or charters on human freedoms.

But, a bill of rights is not a result of delving deep into the pool of natural law. No, a bill of rights is always a political document. With every right it gives an inch of movement to one person, and takes an inch or mile of movement away from another.

Human rights are equally political, and it is hard to find true agreement on what they mean or how they should be interpreted.

Judiciary, seen as so important to protecting the people from themselves, and their leaders- whom the modern democrat hardly trusts, are equally political. The function they surely serve, at least on the highest level- is to govern how the laws of the land are interpreted, and to limit the powers of the ruling party in parliament, or whatever coalition, or movement takes it in a moment.

In truth, are not these judges- political appointments, only ways of taking some power away, their role almost that of a tutor to the new rulers, or an obstruction that the previous hegemony put in place to block the bigger plans of the new rulers of a rotating democratic chair?

These judges, also may be used to change law, in a way a ruling grouping cannot in a parliament- by changing precedent or interpreting statutes differently.

The South African example, where the constitutional drafters purposely went against the will of the people, especially on matters such as the death penalty, and where the judiciary have given interpretations to the constitution, against the moral fabric of the society the Constitution claimed to uplift- is a classic example of a simple fact.

Neither does democracy uplift Natural law- as many would see it, nor for that matter does it comply with morality. Democracy is all about politics, especially in a day and age when emotion rules the roust, as it does today.

A judge is a human being, and as political as any other man. Few judges are appointed in any country- because they are seen as unaffiliated with any ideology.

Simply because a government has a piece of paper which says they can do something, a piece of paper, such a body itself crafted- does not in any manner whatsoever- mean that what they are doing is in any manner right.

Human Rights, and legal rights- while oft used as a weapon to insure the degradation of human dignity, can be used as imperfect tools at times to achieve a purpose, no matter how vague and hard to define they may be.

Law however, should never be confused with morality, and the Ius Gentium, must never be confused with the Ius Civilis. The law is what it is, but man is bound by fuller law, which judges even judges and presidents, and any head of state.

Let us not fool ourselves into believing that this or that charming politician is really doing what he or she does out of care for our means. Rather, let us make it important to them to adhere to what is best.




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