Some judgements in politically sensitive cases have been followed by violence, looting and anarchy in the wider society. Many human lives and property worth billions of dollars are often lost in the ensuing mayhem. Should the social ramifications of incarcerating influential politicians be taken into account? If so, where does that leave the rule of law? Is the rule of law above all possible considerations?
JUDGMENT OR JUDICIAL OPINION: HOW TO READ ... - JSTOR
https://www.jstor.org › stable
de S Sivakumar · 2016 · Citado por 1 — could help a researcher to read and understand the judicial opinion. To achieve ... judiciary.The author believes that judgment though authored by a judge, it should not be ... legal dispute, based on the facts and circumstances of the case and the law ... hearings to handle civil cases such as the denial of public benefits such.
JUDICIAL POWER AND JURISDICTION-CASES AND ...
https://www.law.cornell.edu › judic
Judicial power is “the power of a court to decide and pronounce a judgment and ... According to Chief Justice Marshall, judicial power is capable of acting only ... the judiciary in a tripartite allocation of power to assure that the federal courts will ... in which the Court entertained the suit and decided the case on the merits.
In Indian law - It is totally fabricated to make illegal merits to completely legal . Indian law is not made for justice but only to support criminal activities to make lawfull . Money is fighting in higher courts instead of justice !
Legal judgements can have wider social ramifications. See, for example, https://theconversation.com/south-africa-in-flames-spontaneous-outbreak-or-insurrection-164466?
In theory, yes: that is why Justice is represented as a woman with blindfolds, a scale in one hand and a sword in the other ... but the reality is quite different, already in the Middle Ages, in Spain, He said "Kings want to do, there are laws" and it is that, in the end, the members of the Judicial Power are human persons, with their virtues and defects and, of course, NOT INFALLIBLE (not to mention possible prevarications, bribes, vested interests, etc.) and that is why, in a display of humility prior to the Sentence or Opinion of a Judge or Magistrate, it is called "failure" and this "failure" comes from "failing".
The rule of law should be followed in making judgments. Trying to bring political dimensions into it is untenable as the arguments behind that will be unjustified. In a nutshell, if everyone faithfully follows the law, the said political ramifications won't be there in the first place.
'A country that has a solid institutional legal framework but fails to protect fundamental human rights is at best a country ruled by the law but should not be considered a country based on the rule of law' - Mark Ellis, former head of the International Bar Association.
The laws of any country are based on the local customs and the principles that they follow. As society is dynamic so is the Law. In any country the laws are never static especially in India where the laws are colonial need to be reviewed from time to time depending upon the situations arising in the society. The judges do not have complete power to make new laws as that is the duty of legislature but judges can strike off those laws that are contrary to the Constitution. The judgments are a bit different, when you see a person we usually have a feeling "maybe he would not have committed this crime/wrong and vice-versa". But, that is only a part of the observation made by the judge, the trial, investigation, examination, cross-examination, evidence, merits of the case play a major role in coming to the conclusion where the judgment is made. Anyone can go for appeal and the higher courts look for merits rather than the observation/feeling that a judge had got. If questioned by the higher courts, a judge must justify the reasons on what basis a judge had taken the decision, that is where the difference arises as one can not provide evidence in all the cases. So to answer your question, the answer is yes and no. Legality is a must, but the past of the accused or a party is also taken into consideration to see if they have committed the same in the past. Yes, the law needs to change if there is a law that can give power to the judges to make decisions based on the "Gut" feeling may be things tend to move faster than we expect but that is not what can happen in the near future. Not all judges are politically influenced or work for bribes. There are many judges who take work as worship and do/have done justice not only to the people but also for their position. But the people who do bad things come to light but those who do good things keep doing good things in the dark and never come to the limelight. The reason I have explained so much is that many are not aware of what really happens in the court and have a different perception based on what they hear or read or from the bad experiences they have faced, but it is not all the time.
“Judges shall exercise the judicial functional independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.“ (citation) The court can only consider the facts and evidence duly proven and submitted, respectively, in the course of the trial. The court cannot look beyond the records unless the extrajudicial fact or evidence is a proper subject of judicial notice.
Nelson Mandela was tried, found guilty and sentenced to life imprisonment by a court of law. This was under an apartheid dispensation. Can judges and courts of law be said to be truly independent of the dictates of a given political dispensation?
Subjectivity should never take the place of objectivity just to appease the masses... No group, through shear force of will and numbers, should make us capitulate the rule of law to their prejudices.
Under the rule of law, judges and juries must reach their decisions based solely on the law and facts in front of them. Considering the collateral consequences of the decision is tempting, but eventually drops into the multiple pitfalls of consequentialism. That is a realm for the executive authority to address. In addition to many real-life examples to consider in legal studies, this type of hypothetical has famously been used in the study of philosophy as well. See generally "The Case of the Speluncean Explorers" in the Harvard Law Review.
Hi, Oswell,
This is an interesting and important question. Some of your other interlocutors likely already have said anything I have to say, better than I'll be able to say it.
I will just add, in my usual cynical and jaundiced way: although courts, in theory, should make their determinations solely based upon the actual legal merits and demerits of the cases before them, I'll venture to posit that in practice and in reality, it's never really worked that way. That is, courts, and judges, remain political entities like all other human entities, even while they're wearing their black robes, and they always remain subject to surrounding political pressures, regardless of any rhetoric about "rule of law" and "law and order." The courts and judges may sometimes push back somewhat against prevailing political sentiments; but they cannot resist them unilaterally, or at least, not for very long.
[So, the role of the judiciary as independent and above politics has never really worked as it was supposed to according to classical theories of "separation of powers" found in Montesquieu and elsewhere. That all may be a noble aspiration and myth, but it doesn't reflect human reality. As Aristotle observed long ago, humans are political animals. Professions and professionalization, as with lawyers and judges, may alter the nature of the politics, but cannot eradicate the fundamentally political nature of human beings.]
As an extreme example: would a court defy all overwhelming political pressure to say, "Regardless of political pressure, this is what The Law says"--when an angry mob was outside the courthouse, ready to burn down the court and slaughter the judges if they didn't return the verdict that the angry mob wanted? [Ummmm ... nope. ;-) ]
As a slightly less extreme example, there is (deserved) criticism of the judges and lawyers of Nazi Germany for having gone along with bizarre new laws passed by the Nazi regime, and not having resisted them, as law and justice would have required. The idea behind this criticism seems to be, implicitly if not explicitly, that a bunch of lawyers and judges saying what was legally acceptable would have been sufficient to stem the tidal wave of right-wing populism represented by the Nazis--the judges have spoken; so now the angry mob will go home peacefully. Much as I'd like to believe in that myth, I don't. Judges and lawyers in Nazi Germany who didn't go along with the Nazi tidal wave likely would have been deposed and probably also murdered or lynched, notwithstanding their high positions in (pre-Nazi) German society, and the various judges and lawyers have to have been tacitly aware of that fact. Moreover, as you often have in situations involving human political animals, if there were some judges and lawyers who may have been willing to stand up to Nazi tyranny, there were others who were ready to go along with it to promote their careers and feather their nests--so the German judiciary could not even have put up an undivided common front against the Nazis, and the Nazis and their supporters could have applied all their pressure to any individuals who tried to resist, rather than to the judicial edifice as a whole.
Those are, of course, extreme examples. But, to turn to some less extreme examples that would be seen generally as evidence of a functioning judicial system:
One or more of your earlier interlocutors already has observed that, contrary to the ideal of the law saying something objective and truthful, regardless of politics, judges are actually quite good at making the law say what suits their political predilections. For, what does the law actually say? And who gets to say exactly what it really says? Who gets to define the various individual words, terms, clauses, sections, provisions that interact with each other to form the whole vast network of the law? What rules of interpretation really bind them--in actual practice, not just in theory? And what is to keep judges from interpreting the law, and defining the terms of the law, in ways that suit their overall political positions, at least most of the time? And, moreover--what is to keep judges from interpreting and defining the law in ways that suit the mood of overwhelming political pressure, when that political pressure can either reward and advance the judges, or cast them down from their positions?
Here I'm thinking of the current United States Supreme Court, which, based upon the historical circumstances the made the U.S. the most powerful nation in the world throughout the latter half of the 20th century, also made its highest court one of the most powerful and influential in the world. The U.S. Supreme Court, now with a very solid conservative majority, is exceptionally good at making the law say what it wants, to suit conservative political goals. [And the judges who were put on the court throughout most recent decades were put there, by political forces, to do exactly that.] As just one example: a recent presentation by a colleague pointed out how (former, now deceased) Justice Antonin Scalia and Justice Clarence Thomas, both extreme ideological conservatives, liked to quote and cite a dictionary that hardly anybody else uses when defining terms crucial to legal interpretation. That particular dictionary is, admittedly, something of a literary classic and a milestone in the development of dictionaries of the English language, but it's also three hundred years old (and somewhat conservative in tone). That's just one example of conservative justices using definitional tricks and stratagems to help make the law say what they want it to say; but other conservative (and liberal) justices pull the same tricks in other ways, routinely. Objectively, there isn't much to constrain this sort of interpretive/definitional entrepreneurialism for political ends--other than wider political pressures that set a limit to simply going too far (farther than the political mood of a nation and society will accept), at any given moment in time.
Which raises another issue in recent American judicial history and politics: various scholars and observers have noted how, over recent decades, the overall political mood and tone of the U.S. has moved progressively rightward, such that conservatives of the past, in the 1970s, would look like moderate liberals by today's standards. In the judicial arena, at least, this is partly the result of generations of conservative judges pushing the envelope of what was politically acceptable in their respective days, continually in a more conservative direction, while the wider political mood of the society gradually shifted rightward to accept what formerly was borderline unacceptable, as acceptable and mainstream. [Followed by even more pushing of the political envelope rightward.]
[And in saying all this, I should emphasize: although this whole process has produced a pronounced overall rightward shift in American politics and its judiciary over the past forty or fifty years, trust me, I don't pretend for a minute that it's only conservatives who play these rhetorical, interpretive, or definitional games; more left-leaning judges, with whom I'd personally sympathize more, try to play the same game in a different direction--because that's part of the how the whole human political game is played. The only difference: liberals have been losing, overall, in the United States for fifty years. They've been on the "wrong side of history" in the short term, at least--even if they may have been on the "right side" of history in the much longer term, and in terms of overall human morality.]
I've already ranted far too long, and I suspect nobody cares what I have to say, anyway ( ;-) ) [and, perhaps rightly so ;-) ] -- but I'll just add this: after having worked around lawyers and judges for far too many years, I have the feeling that, at their core, and even if they never enunciate this or admit this to themselves or their fellow lawyers, they still know that they, and their profession, and The Law is really only a paper tiger, at least at a certain level. That is, the actions and antics of judges and lawyers are a form of performance art, shamanistic antics to get the wider public (which, ultimately, holds the political power), to believe in "law and order" and "the rule of law," and, with them, to also believe in courts and the legal profession, rather like a religion. But, if the spell were ever broken, and the public stopped believing in lawyers, judges, and courts en masse, then The Law and its practitioners would lose all their power and influence immediately.
As a result, lawyers and judges, like other high-placed politicians, have always had a major incentive to try to sense the political winds, and to alter their course ("tack with the wind," in sailing terminology) to try to make sure they're going along with the political winds sufficiently to maintain their professional power. The classic example, at least in the American context, is "getting out in front of the bandwagon"--that is, seeing the direction that politics is moving, and then getting out in front, and claiming that you're the leader of a process that already was underway even without your leadership. The danger there is that you get too far out in front, in one direction, and then the political winds shift. Judges and lawyers are sensitive to that risk, too; so they work to get out in front, but not too far out in front--they are lesser risk-takers than, for instance, populist politicians (even though they remain, in the end, politicians). And, if The Law is always already more or less moving in the direction that politics are moving, or is pushing against that direction only modestly at best (while testing what the true ultimate direction of politics will be), then The Law, and all the lawyers and judges who hide under the skirts of The Law, can claim to be objective and just, even while it's riding the waves of human politics.
I should perhaps note here: in characterizing the law as a weird kind of pseudo-religion, as I've done, I am not saying that this is just a disingenuous conspiracy by lawyers and judges to fool the public, while the lawyers and judges know that what they're doing is, ultimately, a fraud and/or performance art. The lawyers and judges also believe in their pseudo-religion (and have done so since the days of Lord Coke in early modern England and long before that, probably back to the ancient Israelites and whoever was even earlier than they were; probably back to whatever ancient cults and priest castes arose either with the rise of agricultural society or even before then). To add a modest corollary to Aristotle's classic observation that humans are political animals, I'll suggest: part of being a political animal is to actually believe (in quasi-religious fashion) in the political games you play. Again, to turn to an extreme (and hideous) example: most of the people in Nazi Germany believed (in quasi-religious fashion) in the Nazi political game, while it was being played, and while it appeared that it was being played successfully. [And not believing in such a quasi-religious game only after it has hideously collapsed in failure doesn't bring one any credit; all of us humans can do that!] So I'm not just bashing the Nazis, or the Germans, here: they represented a more extreme example, in the modern era, of the quasi-religious worship of The Law in every other modern or pre-modern society throughout human history.
Enjoy the rest of your Tuesday! ;-)
Justice is multifaceted such that interest of the state, the public/ complainant and of the victim are considered.
This takes cases beyond what the victim can easily withdraw or just submit to amicable settlement.
Thank you Ms. Juhi Naseem Akhtar
, Scott Dewey and Olaniyi Felix Olayinka for your answers.
Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process. But the most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of its rulings.
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/judicial-power-and-jurisdiction-cases-and-controversies
Ultimately the Rule of Law is for the society. Suo Motu The courts can allow all the interested parties to implead and discuss the case comprehensively taking social,historical and consequential aspects into consideration.No doubt the written la will have primary value compared to Judge- made law.
The distinction between law and the law in action is always a pivotal factor in responding to your important question. While legal justifications will generally play a pivotal role in the legal process, the actual interpretation of the rules and facts are not easily separated from relevant contextual circumstances and influences. Extra-legal factors play a critical role in interpreting legal facts. While individuals in some contexts must make impartial and reasoned decisions, biases and logical consequences will influence the determinations. In some areas like sentencing, the impact of the offense on the victims is considered by legal decision makers even though the sentence warranted should be mitigated on relevant legal principles of moral culpability. Consequently, in these contexts, a focus on the impact on the victims can comport more with principles of vengeance than just deserts. Nonetheless, the myth of impartial decision making grounded in legal principles is critical to the legal enterprise. However, it is important to clarify in advance important potential consequences or policy considerations. That is, if the legal scholars accept the important role of law as policy, which is not accept by all normative legal scholars.
Thank you Faraed Salman , Vennelakanti Prakasam and José Ashford for your answers.
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/judicial-power-and-jurisdiction-cases-and-controversies
I think the belief in passing judgements «based solely on the legal merits and demerits of a case» is a myth. If it were possible, a not very sophisticated artificial intelligence could solve all cases, with the solely support of a logical system, equipped with nothing but a list of merits an demerits, and its relative value.
The judicary system cannot work in such way in a real human community, whose members share values and opinions, and (even in a pluralistic setting) a reduced diversity of dominant ideologies.
The judges are members of the society: they apprehend its values and beliefs, they take posture, they adopt a point of view and participate in the debate from an ideological perspective, and they judge according to such positions. Also, the law supposed to be applied to the concret case reflects the given society's idea of justice.
To judge is an act of ponderation, and to ponderate is to apply ethical convictions to other's acts and to their motivations for the assumed behavior.
I strongly agree what Scott Dewey wrote: «lawyers and judges, like other high-placed politicians, have always had a major incentive to try to sense the political winds, and to alter their course ("tack with the wind," in sailing terminology) to try to make sure they're going along with the political winds sufficiently to maintain their professional power». Could it be different? Is there another option? They are not isolated professionals: they must be connected to what is happening in the social context. They are simultaneously influenced by the dominant thinking and influential to it.
I'd just add that the “political winds“ could be in accordance with the rulers or aggreable to the opposition, and both postures will be always politically backed by a supportive sector of the society which share similar ideological opinion, and rejectd by other sectors with different opinions.
In that sense, I suscribe what José Ashford said: «While legal justifications will generally play a pivotal role in the legal process, the actual interpretation of the rules and facts are not easily separated from relevant contextual circumstances and influences».
This very scenario in the question has been experienced in South Africa, with the incarceration of former President, Mr. J.G. Zuma, who was convicted of a contempt of court charge by the Apex court in the land - the Constitutional Court. The country is still smarting from that unprecedented amount of looting, not seen even during the running battles with apartheid authorities in the 1970s and early 1990s.
The simple answer is yes and no. No, in that in the Zuma case, this was a straight forward criminal matter; and went to the heart of the rule of law. There was no novus phenomenon requiring the review of the departure from the recognition of courts and their role under the rule of law. A departure of the courts from applying the law as it stands, in such scenarios, should not be countenanced, as it would open the democratic order to chaos and anarchy.
Anarchy in countries like South Africa, with ancient embedded conflicts, that have been silenced by the civility and prevailing public order, would plunge the country back into internecine wars underpinned by ethnocentrism, racially charged battles and become worse than Somalia when it became a failed state governed by gangs and war lords at street level.
But courts have to and do consider other external factors such as political changes that have culminated in the creation of new social norms. For instance, in South Africa, rape was only defined to occur between two sexes. Any forced or penetration of the people of the same sex, without consent, was merely considered indecent assault. But after the social activists, especially in the human rights groups, had successfully redefined sex to include even same sex, the change came.
This change started in the courts, when they went beyond the statutory definition of sex and rape at the time, and read in into the statutes, the definitions that recognised the inalienable right of equality. The courts (higher courts) have a duty and authority to expunge even already existing statutory provisions and declare them invalid. Courts can even declare whole statutes invalid. Courts are also charged with the role of developing common law (unwritten) through their judgments and orders.
The merits of a matter are defined by the law that frames the matter and cause it to be brought to court. when the court reframes it to be able to engage it, it has to consider the other factors, like the existence of a pandemic. When Covid-19 came, even the courts had to and did modify their processes -such as rules concerning court appearance. The contents of liquids always take the shape of their container. The environment is what contains the cases and their merits. The court are then able to consider these where applicable and not man-made. These that are manmade like threats of violence and looting are unacceptable and should be visited with the might of the state - including law enforcement and the military - to prevent a descent into anarchy.
Case law to underpin these examples cited can be sourced, but perhaps the writer can draw from his own country sources of law that may be familiar.
The issue of "Should judges and courts of law pass judgments based solely on the legal merits and demerits of a case?" is an important question that cannot be covered under the carpet nowadays when thousands of innocent lives and properties have been lost for that matter.
I suggest that where the true evidence lies in support of fundamental case laws (precedent), the true judgment will be accepted peacefully. The fact is where humankind is intently deceived, justice cannot prevail matter what. And so legal merits and demerits of a case alone cannot provide fair judgments for the innocents, otherwise, the judicial integrity will surely be undermined by the whole public.
According to Alex Magaisa, when the Zimbabwean government wanted to expropriate land held by white farmers without compensation, but could not do so legally under the then existing Constitution it 'reconfigured the composition of the Supreme Court and High Court to create a judiciary that would support its land reform agenda.' While in theory, the executive, the legislature and the judiciary are autonomous, in practice, the executive armed with a two thirds majority in the legislature can effectively call the shots. Dr. Magaisa's article can be found at https://bigsr.africa/bsr-south-africa-balance-the-rule-of-law-and-social-justice/
The Code of judgement states that a final judgment must be made "when the suit is ripe for making a judicial decision." The judgment must contain the names of the parties, the court, the final date of oral argument, the facts, and the reasons for decision subject to some exceptions. https://en.m.wikipedia.org/wiki/Judgment_(law)
Parliament makes the law but it is the roles of judges to interpret parliament's words. They have a measure of discretion and creative power in the manner in which they interpret legislation. https://www.lawteacher.net/free-law-essays/constitutional-law/judges-interpretation-of-legislation-constitutional-law-essay.php
Sometimes there could be appeal to pity and humanitarian considerations in passing judgement, especially to people facing first time charges
Judges look at the information at their disposal which is produced as evidence for a given injustice.
Thank you Chinaza Godswill Awuchi and Kiprotich Kiptum for your answers.
While correct that judges decide matters based on the evidence adduced before them, it is not the entire truth. Judicial Notice
It is trite that in the law of evidence, to a degree, a presiding officer in a matter is free to admit and accept certain given facts as true when these are known to that officer despite these facts not having been adduced and tested in evidence. Such a process is what is labelled as judicial notice (Schwikkard, et al., 2010).[1] Usage of judicial notice helps accelerate trials and hearings by eliminating the need to have every fact adduced and tested.
Some facts are judicially noticed without consulting any source. But other facts are judicially noticed after consulting a specific source. Judicial notice can be taken of an issue in dispute if there are no admissions, without the need to hear evidence on the issue.
There are limitations to judicial notice. Facts that are judicially noticed are either well known to all reasonable persons or to a reasonable court in a specific locality[2]. In R v Tager 1944 AD 339-343-4; the court held that:
(a) It is not sufficient for a presiding officer to act on his personal knowledge of facts; and
(b) Parties may still lead evidence to dispel any erroneous impression under which the court may labour.
Judicial notice cannot be applied to the issues to be decided. In other words, the court cannot decide that the parties should be seeking adjudication that neither party is interested in even though they are entitled to seeking adjudication over that matter. That oversteps the mark that a court should operate within. That ends up making the trial irregular and therefore the outcome invalid.
For instance, in a divorce case, it is not up to the court to enquire on whether there is also an issue of domestic violence, basing this on the judicial notice that most divorce cases are accompanied by allegations and counter allegations of domestic violence. That would be beyond what the court is called upon to decide. The court is therefore not allowed to go on its own witch hunt and compel the parties to adduce evidence and present arguments on issues that the court and not the parties is interested in. The court in such circumstances would have misdirected itself and conducted some form or academic research or commission of enquiry and not a court adjudication – even under the guise of proceeding inquisitorially.
Active Role of Judges
When legal repre4sentative is out of his / her depth, in the eyes of the judge or presiding officer, then the latter should play an active role. [1] In S v Mseleku 2006 2 SACR 574 (D) 578i-579b the court recognised the inexperience of counsel in this field of endeavour and allowed judges to play a more active role – a more inquisitorial role.
[1] Schwikkard, et al., (2010). Principles of Evidence. 3rd Ed. Juta and Company.
[2] In S v Mseleku 2006 2 SACR 574 (D) 578i-579b the court recognised the inexperience of counsel in this field of endeavour and allowed judges to play a more active role – a more inquisitorial role.
Thank you for your professional contributions; I find it very disturbing about the doctrine of "separation of powers (Executive, Legislature, Judiciary) under the Constitution in the Common law" when in fact, the Judges are the Government officers, similar to the police (prosecution) are paid by the government, as well as the Politician (Legislators) are also paid by the same government officers. Physically, they are not different from that legal view.
What do you expect in most cases when corruption is at rampant (arrest, prosecute, defending, judging, etc..) as currently in the everyday news amongst this ONE group of people? Now, you can say - a true innocent claimant (or Accused) fighting with a one-man without knowing he is in fact wrestling with an invisible superpower. (For your information, the "Case of Olssons" in the Solomon Islands - where the same Court of Appeal case, was reheard again by the High Court (lower court) drawing out the appeal orders, and then, going up again to the Appeal Court with the issue is "whether the High Court has the jurisdiction to rehear what has been decided by the highest Appeal Court".
This raises a good answer for the question "Should judges and courts of law pass judgements based solely on the legal merits and demerits of a case?" May be not.
A really good technical question,
if violence, looting, and other insidious activities erupted as a result of such political issues, I think it is all - but a resultant of an unfair judgment that is unacceptable, unprocedural, and corruptive political involvement. The fact is that any society cannot accept what is generally bad for them for there will be sufferings and disharmony, unless otherwise.
And so the weight against the whole citizens' wishes is greater than just a few political cronies ambitions.
I just wanted to give some special acknowledgement to Oswell for kicking off what turned into a quite interesting discussion, which has included a substantial number of participants who may tend toward one side or the other of a longstanding and ongoing debate which, at least specifically in the United States context, tends to be characterized as "Legal Realists" vs. "Legal Formalists." [The same overall debate has gone on elsewhere, for years and decades if not centuries (or perhaps millennia?), and in other places and other legal cultures, the labels affixed to the participants likely are different--I am guessing that these particular labels have remained local to the United States.] At any rate, to oversimplify matters, Legal Formalists tend maintain more faith that The Law generally does operate fairly closely to how it is supposed to in theory and in principle--notwithstanding occasional undeniable misfirings--and that as such, The Law, on balance, tends to do its job reasonably well overall--its job being to aid human communities in their pursuit of justice and fairness. Legal Realists tend to be more cynical, and to view The Law as just another manifestation of the never-ending political power-games between human beings that have characterized all of human existence from our earliest origins--though Legal Realists might point to The Law as a particular variety of political power game more like a religion, in which the practitioners dress up in fancy costumes and claim to offer statements of objective truth from on high, rather like a priesthood. [As an elderly law professor of mine, who himself likely dated back to the heyday of Legal Realism in the United States, once observed, "Judges are just lawyers in black bathrobes." ;-) ] I'll confess that, although I personally started out with more faith in The Law as an objective source of truth and justice, my life experiences have by now pushed me more toward the Legal Realist camp--though at the same time, I recognize that I might be wrong about that, and I sort of hope that in fact I am (that Legal Formalists are right after all). But anyway, it's nice to see an active and intelligent discussion between the two different sides, and perhaps other participants in between. In addition to giving credit to Oswell, I'll give some credit to ResearchGate, which I personally find a more interesting platform than some other similar ones because it truly draws participants from across the globe--and not just people from the United States, or the U.S. plus other major, powerful nations of Western Europe (plus additional powerful non-Western nations like Japan and, increasingly, China), like some other academically oriented social media sites. That makes it, to me, simply a more interesting platform and a more interesting community of members. [So, good for you, ResearchGate! ;-) ]
For anyone who cares (about history, and legal history, and the legal history of the United States, rather than The Law more generally), I'll point out that there has been a visible historical cycle to the competition between Legal Formalism and Legal Realism in the United States. Legal Formalism tends to thrive at times when the overall social/political/economic establishment is riding high and seemingly without challenge, while Legal Realism tends to rear its head (Legal Formalists might say, its "ugly head," to complete the more typical figure of speech in British and American English ;-) ) more at times of crisis and uncertainty. So, for instance, the latter decades of the nineteenth century, when most of the wealth and power in the United States were being transferred inexorably into the hands of large, powerful corporations (and the lawyers (and judges) who dutifully served them), saw Legal Formalists in the saddle. Political, social, and economic crises that called the established order into question at the very end of the 1800s and the first two decades of the 20th century saw the early rise of Legal Realists challenging Legal Formalist orthdoxies, in tandem with what are known in U.S. general history as the Populist and Progressive Movements of the 1890s-1910s. Then World War I came, and it was truly a nightmare (not to mention the Spanish Influenza that followed it from late 1918-1920 and circulated worldwide with deadly, horrific consequences), and most of the developed world including the United States reacted violently against the Bolshevik Revolution in Russia (and sought to contain its spread if not stifle it altogether, much like the Spanish Influenza), and the 1920s saw a sharp conservative reaction in the U.S. and elsewhere, including the first real "Red Scare," the quasi-religious worship of corporations and private corporate wealth and power, and a sharp turn back toward Legal Formalism. Then the Great Depression hit, and American legal scholars abruptly rediscovered Legal Realism. Then the Second World War was finally won, at great cost to the nations of the world (though the United States got off relatively easy, enjoying massive economic growth and rising to greater power while sacrificing relatively few American lives compared to many other nations of the world), and the new, triumphant American empire rediscovered Legal Formalism and largely chased away the residue of 1930s Legal Realism. Legal Realism made a bid to return to salience during the charged times of the 1960s, when it took on new names and labels such as "Critical Legal Studies," but although some such believers in the Legal Realist program managed to get tenured law professorships during what proved to be a brief, narrow window of historical opportunity, by the 1980s, Legal Formalism was firmly back in the saddle in the United States, and has remained so right up to the present. Interestingly, though, there is some indication that we may be entering a new nationwide if not worldwide phase of challenge to established institutions and orthodoxies--so Legal Realism (or whatever the same overall impulse is called in other nations, regions, and intellectual/legal cultures) may be starting to rear its head yet again. [And for myself, personally, with my own attitudes and biases, I'm inclined to say: "Right On! You go, Legal Realism!" ;-) But, again, others may have quite legitimate reasons to favor Legal Formalism instead.]
In the Philippine Criminal Justice System, cases are usually decided on the merits and demerits of the case on hand. Such decision is based from the weight, strenght and sufficiency of evidence as may be determined by the rules on evidence.
We know that it is what the interpretes or says is the law jurisprudencially. But it is practical that facts of cases differ therefore technically judges have latitude to do some activism when cases that require that comes up.
How should judges decide cases?
You are absolutely correct when you say a case must be decided on its own facts which have been properly placed before the court, are reliable, relevant and admissible - the merits or demerits component of adjudication. In cases where there are gaps in the facts in any given case, the court has to raise the issue with the party bearung the burden of proof (onus) to rectify, if the party is ti succeed. Failure to supply the facts to the court may weaken the case of the party or, in a worst-case scenario, may result in the party being unsuccessful in a case where the missing facts are decisive of the issues in dispute.
In an adversarual system parties conduct their cases. The court does not or ought not to assist any of the parties in the presentatiin of their case. As they say "the judicial officer must not descend to the arena" where the "gladiators" ( the litigants) are slugging it out for the simple reason that she/ he is an impartial adjudicator. The judicial officer must not only be fair but must be seen to be fair.
Right at the end of the case, after evaluation of the facts and the applicable law the judicial officer must give a judgment. The judge must supply reasons for the judgment made, which must be based on the facts and the law. A judicial officer cannot rely on a thumbsuck.
For me, the legal reasoning (ratio) of the judicial officer is what differentiates a correct, well-reasoned judgment from a wrong, judgment which is not borne out by the facts and/or the law.
I agree that no one is above the law and that all are equal before the law. However, ALL includes even the judicial officers who sit in judgment. Judicial officers are human like all of us. They are not super men and women. It is not uncommon for a judicial officer to make a mistake.
If they do and there is an opportunity to make amends - often it is not posdible because once they make a judgment they become functus officio that is they cannot revisit their decision.
The case referred to of the former President raises interesting issues which we must critically consider and analyse dispassionately., starting at a point where the case arose (timeline) until where it is at today.
What is your understanding?
Oswell Namasasu There are two sides of this question.
In one side, you have to agree with a simple reality, courts are not something isolated from the society. Courts are for the society and of the society. Their judgments should have a social perspective.
On the other side, the judges/jurors of the courts are surely distinct from a man on street with ordinary prudnce. Judges are appointed to use their special abilities which make them different from the ordinary individuals inside a society. That is why, the judges are not by the society.
If the judges are made bound to pay heed to the rioters or any populist urge then, wouldn't it be feasible to replace the court system with election? There would be a website of the court where people would decide the verdict by casting votes each time? No, that will be the end of justice. So, for the sake of justice, the judges should act as per the law and their prudence only and completely ignoring the abnoirmal and unreasonable populist urges. However, they may be allowed to use their discretion and prudence for judicial activism to address social issues relevant thereto.
Thank you Aref Wazwaz for your answer, Wishing you a happy festive season and prosperous new year,
"Whose law is it anyway?" a South African Cabinet Minister has asked. The question refuses to go away. Ref: https://mg.co.za/opinion/2022-01-08-lindiwe-sisulu-whose-law-is-it-anyway/
Where does the politically sensitive case of Julian Assange leave journalistic freedom and state accountability globally when war crimes are exposed? Are UK judges not succumbing to US political pressure? Or are Western journalists only allowed to expose war crimes committed by unfriendly governments? https://www.iglobenews.org/prosecution-of-julian-assange-the-longarm-of-us-injustice-2/
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