Justice

Justice, truth and peace #

Justice is one of our most primal instincts (we are hard wired against an injustice) and our most fundamental cherished entitlement.  Even as young children we have an instinctive sense of what is fair and just.
We may not know anything about law, but we recognise an injustice immediately even if it doesn’t concern us directly.   A layman’s definition of justice may be nothing more than us getting our comeuppance; deserved reward or just deserts.  Learned people have tried to define it more specifically for yonks.  

The most sanguine view maintains that: *The arc of the moral universe is long, but it bends towards justice.” ***― Theodore Parker - 1810 ** We all live in hope.

During the 1968 student uprising at Columbia, philosopher, Sidney Morgenbesser joined a human chain of protesters and got clubbed by the police. When later asked about the beating, he pronounced it “unjust but not unfair”: “It was unjust because they hit me over the head, but it was not unfair because they hit everyone else too.”

Esteemed by some philosophers as the highest virtue, the delivery of justice demands and rivets attention.  And the opposite is true as well: the perceived miscarriage of justice commands attention, sparking outrage and condemnation.

Politicians are renown for being motivated by popular perceptions and will often pander to current fads of “law and order” or stoked fears of crime waves and make punitive laws to curry favour with voters   - a politician was overheard to say,” *Never mind about Justice; Law and Order is all that matters”. * Statesmen (in short supply) have longer term visions and can draw up constitutions which can protect citizens from short sighted politicians.  Yet breaches of judicial codes can only be held to account by current politicians whose short term interest sometimes cannot see past the next election.

This site offers wide ranging perspectives on Justice and how it has been used to organise societies throughout history. 

The Side Bar Menu (above, left) offers the following titles:


Lawyers -  What do they do and why do we need them?

**Judges – **What are the prerogatives of Judges, what are they commissioned to do, and what makes a good judge.

**The Justice Game – **a brief analysis of the book by Geoffrey Robertson, a leading Social Justice advocate.

**Justice and Literature – Yeats **said poetry (literature) does not make things happen, however a survey of literature through the ages might contest this and good writing can always appeal to the noble in us all.

**Justice and Democracy  - **Looks at the question of equality and how Justice is connected to creating a consensual tranquil and productive society.

**Justice and Power  - **The courts are endowed with tremendous discretionary  powers.  It is critical that this power is not abused because then people lose faith, confidence and trust in what should be a trustworthy institution.

**Justice and Truth -  **One would assume that truth would be at the heart of our court system, however according to many of its critics, this is far from the truth.

**Justice and History – **Looks at the origins and surveys the various influences that have form the evolution of our Justice system.

Abuse of power   -  When power is abused, not only do we have an inherent, inalienable and inviolable right to speak out against it;  we have a duty to do so.

**Failure of Democracy - ** Our democratic system is profoundly struggling to maintain functionality and legitimacy in the West.  A lot of people died as a result of the failure of European democracy in the 1930s. Democracy’s looking pretty ragged again these days, so we should be concerned about history repeating itself.

**The Politics of Fear -  **Tyrannical politicians, also known as demagogues (as will religious zealots) use fear to control and manipulate the electorate, hoping to suspend their rational judgements.  They then assure us that they alone can protect us.

The early civilisations of Greece, China and Sumeria laid the foundations for our concepts of a Just Society in the form of their codifications of laws. The statue of Lady Justice in Athens depicts justice as equipped with three symbols: a sword symbolizing the court’s coercive power; a human scale weighing competing claims in each hand; and a blindfold indicating impartiality.

In one of the first Hebrew codes of laws, *“Rabbi Shimon ben (son of) Gamliel * asserts the three bedrock principles that underpin Western legal systems:

* ‘The world stands upon three things: upon Truth, Justice and Peace. Without these three elements the world cannot be sustained - and further, like the pillars holding up the ceiling of a house, all three are essential - together: There can be no Truth in the absence of Justice and Peace; no Justice in the absence of Truth and Peace; no Peace in the absence of Truth and Justice.*

Justice is essential in any fair minded productive society.  Without a just society communities cannot reach their full potential.  Without Art we cannot have a culture; without Laws, no society; without Justice, no peace. 

However, laws do not necessarily equate to Justice, as Hammurabi’s Code of laws  or the proscriptions of Leviticus illustrate.  They merely list a series of implacable injunctions against certain acts considered taboo, leaving no room for mitigation.

The cornerstone of our system of democracy is the separation of our system of justice from the legislative and executive arms of government.  Yet all three are needed to guard the public from abuse of office by the other two.

Like the three nymphs of the Hesperides, given the task of guarding the Golden Apples, had to watch each other.  Not trusting them, Hera also placed in the garden a never-sleeping, hundred-headed dragon named Ladon as an additional safeguard.  So too, the three bodies of government have to keep an eye on each other to make sure each one remains true to their calling.  We the people have the onerous task of Ladon – vigilantly guarding our hard won freedoms.

Despite her vigilance, the Golden Apples were twice snaffled, once by Atlas for Achilles, and also by Discord, the goddess of strife, aka, Eris, the Greek goddess of mischief, to offer them to the fairest, igniting the Trojan War.  Eris,  (Eristic reasoning  – Casuistry, Sophistry, Specious or Lawyer logic)  is present in political debates, in court rooms and wherever people are talking, not to discover truth, but to win with whatever it takes.

The problem lies in the fact that Justice is administered by the judiciary while the laws are framed by parliamentarians who notionally reflect the attitudes of contemporary mores or values. 

It was Bismarck’s lament:

“To retain respect for sausages and laws, one must not watch them in the making."

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           “The ‘law’ is  “no law at all, but rather a species of violence”.  *** Thomas Aquinas*

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*             “Be ye ever so high, the law is above you”* is the great principle that embodies the rule of law.

I am indebted to a large number of scholars, writers, Judges, lawyers… for all my work.  As Tennyson wrote: “I am a part of all that I met”  and Colonel Schultz speaks for me when he says, “I know nussing!”  * Here are some, but not all of my main sources:*

The Honourable Chief Justice Beverly McLachlin,  August 17^(th,) 2013 at the Saskatoon conference of the Canadian Bar Association. Full story:  http://www.cbc.ca/news/canada/saskatoon/canada-s-top-judge-slams-inaccessible-justice-1.1306993

The Honourable Justice Rosalie Silberman Abella, appointed to the Supreme Court of Canada in 2004.  She is the first Jewish woman appointed to the Court. These excerpts come from a Lecture, **Justice and Literature ** (before 2006)  Full transcript available: http://www.lsuc.on.ca/media/rosalie_abella_justice_and_literature.pdf

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Retired Australian High Court (Canadian born) Judge Dyson Heydon **   ‘‘The enemy within’', published in the Law Quarterly Review.**

EVAN WHITT0N - Excerpts from: ‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)

Evan Whitton, an Australian legal historian, details the origins of the system used in England and its former colonies.  Evan Whitton has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au    More @  http://netk.net.au/WhittonCartel.asp

Richard Ackland: Publisher of Justinian, broadcaster, columnist, reconnoiter and entertainer.   

    Australian Judges # A number of Senior Australian Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their individual and professional lives. Many comment on what an isolating experience it becomes. David Collins The Commission of the first Judge Advocate David Collins, dated 24 October 1786, appointed him Deputy Judge Advocate in the Settlement within our Territory called New South Wales.

    Hesiodic Works and Days # Excerpts on perversion of Justice # Translated by Gregory Nagy 1 Muses of Pieria, you who make glory [kleos] with your songs, 2 come and tell of Zeus, making a song about your father, 3 on account of whom there are mortals both unworthy of talk and worthy, 4 both worth speaking of and not—all on account of great Zeus. 5 Easily he gives power, and just as easily he ruins the powerful.

    Democracy and Justice # “Democracy is the worst form of government; except for all the others”. Churchill. “that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth”. From the Gettysburg Address, Abraham Lincoln

    Our Corrupt Legal System - Evan Whitton # **Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies. ** Evan Whitton has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry.

    Juries over Judges # When the very institutions, commissioned by the people, of the people and for people, betray the people, we know that democracy is under assault, descending into authoritarianism. The real risk of Judges over ruling a jury decision is our loss of the High Court’s sense of public accountability. Homer refers to “warping a noble nature to ignoble ends”. David Hume predicted: “The corruption of the best things gives rise to the worst.

    Judges and perogatives # *There is no situation so bad, that the intervention of the law could not make it worse. *Brendan Behan Judges are just people,” she said irrelevantly. “They start out that way, I’ve heard.” ** Apologies to Raymond Chandler** *Why hire a lawyer when you can buy a judge? * Within society, organisations set up to serve our needs, appoint officials as authority figures to maintain fair independent governance.

    Justice and History # # # We are often told that our Justice System has its origins in the lofty Judaic/Greek models. This is at best a half truth. Pre-Classical Greek civilisations believed Justice was the product of capricious gods who needed to be appeased or placated by suppliant sacrifices. # The Epic of Gilgamesh is putatively the earliest form of literature extant. He was an historical king of Uruk in Babylonia, on the River Euphrates in modern Iraq; he lived about 2700 B.

    Literature and Justice # We hang the petty thieves and appoint the great ones to public office. Aesop, Greek slave & fable author Literature can enflame our determination to pursue justice. - Professor Susan Sage Heinzelman Writers like Kafka, Camus support Hilary Mantel’scaution us that, “much of jurisprudence is an elaborate bluff and legal language is cognate with magic”. ** Matthew Arnold claimed that “the study of literature gives you the best vantage point from which to understand an entire society”.

    Justice and Power # The more authoritarian; the less authority. * * “Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.” * Blaise Pascal** *** Solon, in 7^(th)** century BCE** wrestled power from the nobles and bequeathed it to the people through democratas – the power that originates in every one of us. The best way to be human, is to be ordinary; reject hierarchies and tyranny by putting power into the hands of the people.

    Truth and Justice # It is generally acknowledged that the first casualty in conflict is truth (Aeschylus) In one of the first Hebrew codes of laws, “Rabbi Shimon ben (son of) Gamliel asserts the three bedrock principles that underpin Western legal systems: * ‘The world stands upon three things: upon Truth, Justice and Peace. Without these three elements the world cannot be sustained - and further, like the pillars holding up the ceiling of a house, all three are essential - together: There can be no Truth in the absence of Justice and Peace; no Justice in the absence of Truth and Peace; no Peace in the absence of Truth and Justice.

    The Justice Game - Geoffrey Robertson # The Justice Game by Geoffrey Robertson** **records some of the landmark legal cases a young lawyer from Australia faced in his early days after graduating from Oxford in England from the early 1970’s to the mid 1990’s. The book chronicles some major Human rights cases that challenged the entrenched mind set of an ancient legal institution. It is interesting to note that Robertson does a lot of his early work as a student supported by a Rhodes Scholarship and later “pro bono” - Latin for free.

    Justice, truth and peace # The early civilisations of Greece, China and Sumeria laid the foundations for our concepts of a Just Society in the form of their codifications of laws. The statue of Lady Justice in Athens depicts justice as equipped with three symbols: a sword symbolizing the court’s coercive power; a human scale weighing competing claims in each hand; and a blindfold indicating impartiality. In one of the first Hebrew codes of laws, “Rabbi Shimon ben (son of) Gamliel asserts the three bedrock principles that underpin Western legal systems:

    Legal Jargon # Lawyers are trained in the arts of linguistic combat; persuasion – casuistry, sophistry and eristic logic, to win at all costs. Specious and spurious arguments trump truth and reality. Manipulation of evidence can lead to perception management. * “—You and I both do the same thing, he would chide me, “sleight of hand - making things appear to be what they’re not. " * Alan M. Dershowitz, US defence lawyer, writing of his son, a professional magician, 1991.

    Legal Reform # Vital to any vibrant democracy is trust; faith in the “fairness and how our legislative and judicial branch can continue to be respected,” Senator Murkowski. Public goodwill can be imperilled by reactive, anachronistic cultures of Medieval Institutions, long past their use by date. Urgent reforms, in all liberal democracies, need to be implemented for the protection of judicial integrity and independence. Radical top down systematic reform is required to restore trust and preserve democracy.

    Lawyers # *“What's wrong with lawyer jokes?* *Lawyers don't think they're funny and we don't think they're jokes.”* Lawyers have an image problem! Despite the projection of a glamourous profession, public perception of lawyers appears to be at a low ebb even though there are many extremely good lawyers about. As individuals we are not our failures; but a profession or institution is often defined by its “rotten apples”.

    The Origins of Power # *The assumption of power can give it to you, whether you have it or not.” *Or, in Laurie Oakes’ more pithy translation: “You get power by exercising it.” There are multitudes of theories on the nature of power and the basis, sources and distribution of power. Early societies believed all power derived from the gods, the sun or the earth and these had to be appeased by sacrifice if the tribe were to survive and prosper.

    Resisting the Abuse of Power: # A vibrant Democracy is not threatened by the actions of a few, but the inactions of the many. As sovereign citizens we not only have a right to dissent; we have a solemn duty to protect and preserve our freedoms and power. Governments of the people, by the people and for the people. There are always leaders or institutions that attempt to extend their power.

    Sir Garfield Barwick # David Marr wrote a most powerful biography bringing to life Australia’s most powerful and controversial Chief Justice. Sir Richard Kirby called it ‘The best biography written by an Australian; the best biography written about an Australian.' One can not ignore the profound influence Evan Whitton has imbued on Australian legal journalism from the 1960’s. Often a lone voice, crying in the wilderness, his fearless, but grounded scrutiny of the bastions of unwarranted privilege and prestige has been intrepid and unrelenting.

    The Failure of Democracy # The Paradox of Democracy # *“The first question of government is a question of trust. As Confucius told his disciple Tsze-Leung, three things are needed for government: weapons, food and trust. If a ruler can’t hang on to all three, he should give up weapons first and food next. Trust should be guarded to the end: without trust we cannot stand”. *Onora O’Neill

    The Politics of Fear # Deep, dark currents of fear *“In politics, what begins in fear usually ends up in folly.' *Samuel Taylor Coleridge Fear is not a positive motivating force; in fact it can be quite corrosive and paralysing. As Baz Lurhman has Fran say in Strictly Ballroom, “A life lived in fear is a life half lived”, or Janet Napolitano, “you cannot live free if you live in fear".

    1. Whistleblowers embodied *“Truth-tellers, the whistleblowers and the hacktivists are canaries in the coal mine of democracy.” *Thomas Drake, a former senior employee of the United States National Security Agency. ** ** ** Crikey** **Bernard Keane**, Sept. 09, 2008 Special Minister of State John Faulkner today committed to legislation establishing a “preferred model” for whistle-blower protection in 2009, based on the outcome of a House of Representatives committee inquiry into ways to broaden and strengthen public interest disclosure.