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advance toward Justice. Other avenues flouting traffic rules can have
are emergency decrees, social activism, adverse consequences. Yet,
humanistic and religious caritas. when punishment becomes
Yet, in many countries, including mere revenge, the result tends
democratic governments, law can be to be greater injustice and
used to impede Justice, undermine instability; the continuation
and frustrate it. Justice must satisfy of a vicious circle of violence
many criteria - must be contextual and repression.
and universal. By its very nature, all
legal regimes are incomplete, because Experience shows that
the legislature does not enact all the punishment has all too often
laws that may be necessary, does not been applied selectively
abrogate all the laws that have become and has been used as a
obsolete. Law is punctual, aimed at weapon of domination.
addressing a particular issue, and rarely Neither law nor Justice are
sciences.
can it incorporate all relevant facets mathematical
and factors. Thus, in most cases, law Both are anthropocentric
cannot and should not be considered and must serve humanity
as absolute, sacred, categorical or by facilitating moral and
inexorable - but instead must allow material rehabilitation and
for flexibility in its interpretation and reconciliation. Victims of
application. It is the function of judges human rights violations
to interpret the law in a manner that will deserve recognition, respect
advance Justice. Judges must consider and reparation. Seeing the
all pertinent facts, circumstances and perpetrators of a breach
laws - as well as the consequences of of law punished does not
the application of a particular law in a undo the offence, does not
concrete case. The law may be blind - necessarily advance the goal
but the judge must never be. Nor can of preventing future offences,
the judge capitulate to positivism by nor does it strengthen a
allowing the letter of the law to corrupt peaceful society based on
and deny the spirit of the law. law, mutual respect and ethical values. Moreover, the law must
not discriminate among victims. The concept of a hierarchy of
Law and Punishment victims, the "sorting out" of victims, the competition among
Law and punishment are not the same. The function of law is victims are all unworthy of a legal order aimed at achieving
the codification of norms, definition of rights and obligations, Justice. When the law creates categories of victims that
creation of mechanisms of monitoring and enforcement. Law are "politically correct" and tolerates that other victims are
should be preventive of abuses, not only curative. Punishment ignored, it corrupts the concept of Justice, because all victims
is always ex post facto. It is far more important for law to deserve our attention and are equal in dignity and all deserve
lay down safeguards so as to avert the breach of law and recognition and reparation, without discrimination. Just as
irreparable harm. Recently many human rights activists and law and Justice are not the same, the concept of law should be
non-governmental organizations tend to be over-simplifiers decoupled from that of punishment.
through their advocacy of punishment as a principal legal tool,
as a weapon of fear. Yet, law must be much more than meeting Justitia etpax
out penalties, punishment and sanctions against those who do The motto of the International Labour Organization, si vis
not observe the established administrative, civil and criminal pacem cole justitiam - if you want peace, cultivate Justice
regimes, which are man-made and, in many situations, - expresses a fundamental truth that many politicians have
constitute unjust regimes that perpetuate injustice and protect pondered on but somehow failed to implement. Indeed, if
privilege. Natural law and common sense require that codified there is no social justice, if laws do not fulfil their preventive
law be modified so as to take the evolution of society into and curative functions, domestic and international conflicts
account and ensure that Justice prevails. There is a fetishism inevitably result. That is why law is crucial in providing a solid
about the concept of punishment as an essential part of Justice. framework and educating society about those fundamental
However, this simplistic concept has always been flawed, because human rights and freedoms that will gradually advance
multiple factors other than culpa lead to a breach of the law. humanity toward Justice and Peace. Indeed, what we strive
The lex talionis has no place in enlightened societies. Indeed, for is a culture of listening, a culture of solidarity, a culture of
punishment can be considered a legitimate tool only if it has a peace.
deterrent effect and if it educates society; e.g. when one knows ALFRED DE ZAYAS
that speeding is illegal and getting a fine drives the point that

INTERNATIONAL DIPLOMAT . DIVA
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