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international

Refl eti 'o s n Law

and Justice

The old adage that Justice is blind is If Justice were mathematics, one
"Indeed, a judge must not be blind,
being challenged by those who claim would not need judges, but only
that Justice cannot be neutral, that but instead sharpen his vision computers. That is why an appeal
the function of justice is to condemn to "natural law" is frequently made,
so as to recognize the abuse of
the bad and protect the good. Hence precisely because many statutes
the question arises whether Justice power through law, what today is actually perpetuate injustice. As
is neutral or whether it should be sometimes referred to as "lawfare' Cicero put it, "summum jus, summa
teleological? This frequently asked injuria" - an excess of law, or the
question is ultimately artificial, the instrumentalization of law as blind application of the law can lead
since both options or approaches are weapons to destabilize and destroy to gravest injustice. Themis, the
fundamentally flawed. Greek goddess of Justice, was not
economic or political adversaries." blindfolded, she carried a sword to
Justice, like truth, is an absolute separate fact from fiction, and to
term. What we mean is that the process must be impartial, so make clear that her decisions were fast and final. When Themis
as to facilitate reaching a just and equitable result. Moreover, was ignored, Nemesis, the goddess of revenge, would impose
we must not amalgamate the terms law and Justice, which punishment.
admittedly overlap, and yet frequently mean different things.
While Justice is a form of ethics, a metaphysical value related Since the 16th century, lustitia, the Roman goddess of Justice,
to truth, law is a man-made norm or "rule of the game" that sometimes called Lady Justice, is often depicted wearing a
always remains work-in-progress. blindfold, a metaphor suggesting impartiality; since Justice must
decide without preferences according to race, colour, religion,
The vocation of the Justice system is to practice "fairness" and political opinion or social status. The blindfold, however, was
impartiality so as to strengthen what is good, redress wrongs an unwise innovation that has done more harm than good.
and protect the oppressed. In this sense, Justice (the outcome) Indeed, a judge must not be blind, but instead sharpen his vision
cannot be neutral, and by necessity must be teleological. so as to recognize the abuse of power through law, what today
Neutral is the methodology to arrive at and implement Justice. is sometimes referred to as "lawfare' the instrumentalization
A judge must start every judicial investigation with an open of law as weapons to destabilize and destroy economic or
mind, proactively seek all relevant facts and circumstances, political adversaries. While a judge is responsible for ensuring
double-check sources, consider all the information obtainable, that "justice is done he must do this with open eyes and ears,
listen to all arguments - audiatur et altera pars - look for interpreting and applying statutes and jurisprudence in context
motivation, weigh in merit, performance, put events in and with flexibility; understanding and vision, so that fairness
context, so as to be better able formulate a reasoned opinion. and equity prevail.
This conclusion, a judgment arrived at through objective
methodology, can no longer be "neutral" - otherwise the In order to arrive at Justice, law must create a framework that is
whole fact-finding and evaluating procedure would be useless. both preventive and curative; it should nourish an environment
A judge does justice by establishing the facts and applying law where Justice can flourish, where the administration of justice
non-selectively. Yet, neutrality does not mean blindness, and is impartial and has credibility by virtue of its clarity and
the judge should never become a computer who automatically predictability. Justice does not emerge from a "virgin birth' nor
and perfunctorily applies the laws without considering the can it be achieved through a "tabula rasa' approach, disregarding
consequences, because statutes and norms themselves may the prevalence of historical inequities, existing imbalances and
be deliberately or inadvertently unjust - such as much of tax privileges. The continuation of these inequities is incompatible
legislation with built-in loopholes for the rich, legislation with Justice, which is not mere rhetoric or proforma compliance
establishing privileges and tax havens, legal constructs that with law, but requires a continuous implementation of rights
facilitate money-laundering, the old laws on slavery and the and obligations and a conscious redressing of wrongs so that
stave trade, Apartheid laws, Kafala norms, Hitler's Nuremberg all human beings can pursue their well-being in larger freedom
laws, land-grabbing laws, etc. The judge must keep the spirit -- and in solidarity with the rest of society.
of the law in mind and try to interpret legislation - and a
country's Constitution -- accordingly. Whereas Justice is the goal, law is only one of the many ways to

26 DIVA . INTERNATIONAL DIPLOMAT