Justice: the Achille's heel of democracy

Nature and religion

How nature arose is beyond our comprehension. Perhaps mankind will not survive long enough in order to find out. The cosmos is vast and constantly expanding, sweeping us all along with it. Unless we somehow manage to wrench ourselves from the kiss of death of our benefactor and possible genitor the sun, it seems we are doomed to be transformed into cosmic dust sometime en route.

Could it have been a random combination of matter and energy interacting in the cosmos that resulted in the creation of life? If so can we break the code? Can mankind as a particular link in the chain of those combinations unravel the process that resulted in the creation of life? That remains a question of conjecture. Research in abiogenesis, the study of how biological life arises from inorganic matter, has barely commenced. It dates from 1952 with the Miller-Urey experiment simulating what were thought to be the reigning conditions on earth when life first appeared. According to astrophysicists we have 500 million years to try to break the code. After that, all life on earth will have disappeared due to excessive heat from the sun. In 7.5 billion years, it seems the earth itself will have disappeared completely.

The problem is not to invent the process. It is to discover it.

The laws of nature produce whatever order is most efficient. This may be deemed its goal or purpose. It has nothing to do with human characteristics and attributes such as emotions, desires, will, beliefs, ideals, ethics or morality.

In the realm of nature, whatever order is the most efficient may be considered to be the most just. Justice is the natural order.

The human characteristics and attributes exist in the natural order because they are efficient for the existence of mankind. So it is that human beings developed sensorial faculties and emotions such as affection and fear, pleasure and pain.

By application of the same principle of efficiency of nature, it is not difficult to imagine that the physiological evolution which favoured the development of superior intellectual capacities in human beings to all other living species was accompanied by the development of religious belief and a conscience.

Law and religion

On a more practical level, as nature patiently continued to fashion its masterpiece of efficiency, we gradually devised a set of laws and regulations largely inspired by those imposed on us by nature, completed by others founded in religious belief or which were simply the fruit of our developing conscience based on humanitarian considerations. A hallmark of such laws and regulations for most of western civilisation is the Moses code which, according to Christian tradition, is thought to have been compiled about three and a half thousand years ago. In what language it was chiselled on the stone tablet appears to be something of a mystery. There is no evidence that Hebrew existed as a written language at the time.

A thousand and a half years later, just fifty years after the birth of Jesus, Paul of Tarsus, who appears to have been the principal promoter, perhaps the founder of Christianity (Jesus and his parents were Jews), following a vision of the resurrected Jesus whom he never met, exercised a determining influence on the religious belief and philosophy of which we still find trace in modern, man-made law, today (known under its technical term of "positive law"), alongside traditional Mosaic law and Noahide code.

In addition to promoting the Judaic "moral code" with the exception of its ritual and dietary obligations, and the Seven Laws of Noah or so-called Noahide code, Paul was also an adamant proponent of the doctrine of sola fide whereby guilty sinners are purported to be granted judicial pardon "by faith alone".

It is amusing to note in this respect that so-called modern day laic societies which boast of a secular constitution proclaiming the strict separation of church and state seem to ignore the fact that a good deal of their statute law has been derived from religious code. They point to nations of Islamic tradition where the Sharia has official status as statute law and is applied by Islamic judges or qadis. Some mistakenly imagine that Israel is in a similar situation as regards Talmudic law whereas it is, in fact, a parliamentary democracy with an independent judiciary, closer to the British common law tradition. The difference is not as important as they somewhat naively consider it to be, at least so far as the application of the principle of the "separation of church and state" is concerned.

The political regimes of European countries such as England, Denmark, Greece and Finland make no provision for the separation of church and state. In the UK, religious courts are allowed to function within their communities. This has long been the case of rabbinical courts in respect of the Jewish community and, more recently, Islamic Sharia courts have been authorised for the Islamic community.

The development of democracy

As a particular random combination of various elements of the cosmos, it seems most unlikely that we human beings could somehow manage one day to extract ourselves from it. We are made of the same stuff as the moon and the stars, the rivers and the mountains, the air and the trees and are subject to the same laws of nature.

The instinct of survival bestowed upon us by nature is the source of the desire of certain individuals to dominate others and of certain members of the community to dominate the group. This is clearly a law of nature, not the manifestation of any individual choice or the exercise of so-called free will. It is this law of nature that is the driving force behind the development of what will eventually emerge as the most efficient organisational structure of human society.

Present day social structures consisting of family groups, nomadic tribes, and sedentary populations loosely associated, dispersed and agglomerated in various shapes and forms within nation-states are animated, oriented and controlled by multiple forms of government depending on their cultural development and where they happen to be situated at a particular point of time on the evolution curve. The more advanced societies have a democratic form of government.

It was in Iceland that the oldest parliament in the world, the Althing, was established in 930 AD. The country had been settled by Vikings in the year 900 and the Althing was an assembly of chieftains where laws were made and court cases tried.

Democracy, however, has its origin in the poleis or city-states of Greece. It is epitomised by the ecclesia which was the assembly of the democracy of ancient Athens during its "Golden Age" from roughly 500 to 400 BC. The Greek archon (ruler or administrator) Solon, is accredited with having established the first democracy about a hundred years earlier in the year 600 BC.

The basic ingredients of democracy as we continue to conceive it today are people armed with a set of rules: "dêmos", people and "krátos", rules or power. The combination of these two ingredients means that it is the people who decide the rules to which they accept to submit themselves and therefore have a vested interest in those rules being implemented as equitably as possible.

The rules are derived from nature, culture, tradition, the predominant religious beliefs and morality, as well as from what has been termed the "social contract of human behaviour" as conceived byHobbes (Leviathan, 1651), Locke (Two Treaties of Government, 1689) and Rousseau (The Social Contract, 1762) aimed at preserving individual liberties on an equitable basis and maintaining harmonious relationships within the community.

To be effective, the rules need to be defined with talent and experience. For them to be implemented as equitably as possible requires an excellent understanding of the circumstances in which they are to apply as well as the probable consequences of their application. This, in turn, requires perspicacity, intelligence, integrity, determination and a good deal of time, patience and hard work. The passage from design to application, from theory to practice, is a particularly delicate one. That very noble objective we call justice tends to be somewhat elusive. In fact, it is so elusive it could even be said to constitute the "Achilles' heel" of democracy.

The law of nature is not contractual. It is imperative. Human considerations such as democracy and justice do not apply to the law of nature. They only apply to man-made, conventional or, to employ the technical term, positive law. Whereas the law of nature is immutable, positive law is adaptable, dispensable and revocable within the democratic process.

In a democratic political regime, positive law is not some superior authority imposed on the citizens of the nation-state. It is the citizens of the nation-state who invest authority in positive law either indirectly through their parliamentary representatives or directly by popular referendum. All other regimes are more or less authoritarian in nature, be they benevolent, enlightened, elitist, aristocratic, monarchical, monocratic, theocratic, autocratic, dictatorial, despotic, imperial, tyrannical, or otherwise.

A broad consensus in support of positive law is a guaranty of popular adhesion to the rule of law in democratic nation-states and an important contributing factor to the preservation of political stability.

Ingredients of justice

While the nature of the political regime and adhesion to the rule of law are both important, the truth of the pudding is in the eating and, in this case, the truth of the pudding is the manner in which justice is administered and the quality of its decisions in practice.

The principal theatre of operations is the court room but certain acts may also take place on the scene of the crime, in forensic laboratories or elsewhere. The actors are numerous: magistrates, coroners, judges, prosecutors, plaintiffs, defendants, police, detectives, witnesses, lawyers, juries, experts, social workers and others. The objective of justice is to settle conflicts impartially with due respect to the law. In order to achieve its objective, the court proceeds to reveal the truth, define the responsibilities, pronounce its judgements and order the execution of its decisions.

The task is rude, complex, delicate and hazardous. The actors are more or less competent, more or less diligent, more or less biased and more or less honest. They express themselves more or less precisely, more or less fully and more or less coherently. Their memory is more or less reliable. Material evidence may be more or less explicit, more or less adequate, more or less significative and perhaps, even, more or less conflicting. The state of the art of technology may be more or less favourable for the revelation and interpretation of material evidence.

It is little wonder that the decisions of justice, even in the most favourable conditions, are rarely considered satisfactory. According to the popular proverb, "a bad settlement is better than a good trial". Generally speaking, this is not possible in penal cases though it has been reported that plaintiffs in the USA have been known, in several instances, to accept to drop penal charges in exchange for large financial compensations.

For some, justice is assimilated to equality, for others it means fairness, for yet others it is the strict application of the law. Still others consider it is the rightful punishment exercised by the community in the name of the victims for misdeeds committed by the offender. John Rawls, the American moral and political philosopher, suggests that justice is to social matters what truth is to knowledge. What truth is to reality may, perhaps, have been a more appropriate comparison. No doubt, these are all valid images of justice seen from different perspectives. While the law is theoretical and immaterial, justice is practical and visible. Its visibility has an educational effect on the general public by providing concrete examples of the practical effect it has on the lives of real people.