The legal state is the air we breathe, said the German legal philosopher Gustav Radbruch. Starting from this maxim, and reduced to the Macedonian conditions, the air quality is the same as the quality of the legal state, created for decades, with frequent changes in the legislation, which are regularly announced as reforms. For the success of the reforms, the change of laws and their application, it is said in every announced reform that political will is needed.
According to Radbruch, legislation must primarily be the will for justice, that is, the only successful law is the rightious law. When laws consciously deny the will of justice, the German lawyer points out, when people are arbitrarily denied their human rights, then those laws are irrelevant, that is when the people do not owe them obedience, then the lawyers must gather up courage to challenge the law’s character.
It may also have laws with such a measure of injustice and general harm that they must be denied their importance and even the nature of the right. In such a case, the reforms in legislation remain without the oxygen of legal logic and fail, or become repressive as “whip-legislation”.
Hence, the rule of law implies fair laws, consistency of the legal system and legal certainty, as well as legal values and principles that are stronger than any legal norm. These are the principles of ethics and moral law, because, as Radbruch says, law is primarily a cultural term.
The law is a cultural term, for example, when the Constitution stipulates that everyone has the right to a healthy environment, but also when it is stipulated that the the person’s freedom is inviolable. The law is a cultural term when seeking just laws and when people have access to justice and when they have access to an independent and impartial court where judges of integrity who possess a strong moral law are conducting trials.
Moral law is a condition for the realization of the idea of law, and the fate of reforms, especially in the judiciary, does not depend only on the law that is passed, but, as the leaders of GRECO point out, depends heavily on the law that has been built since the beginning. In the judiciary, ethics must not be metaphysics, but practice, but also a new aesthetics of law. Only judges with integrity are a guarantee for the rule of law. According to international principles on the behavior of judges, one judge is obliged not only to make a fair and impartial decision, but also to bring it in such a way as to enable him to be relieved of any doubt about his righteousness and impartiality, as well as his integrity.
“Therefore, in addition to having excellent knowledge of the law in order to interpret it competently and apply it, it is equally important for the judge to exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence,” says in international principles of judicial conduct, so-called Bangalore Principles for Judicial Conduct.
These principles of judicial conduct emphasize that judges must reaffirm people’s faith in the integrity of the judiciary. Justice should not only be executed, but also be visible that it is being executed. Trust in the judiciary is based not only on the expertise and the conscience of the judges, but also on their integrity and moral firmness. The judge should not only be a good judge, but also a good person.
From the perspective of the public, the judge not only pledged to serve the ideals of justice and the truth on which the rule of law and the foundations of democracy were built, but also embody them.
The judiciary itself should be aware that the judges do not depend on the existing government. They see governments coming and going. They are said in the principles, they owe no loyalty to the ministers, they do not owe even temporary loyalty, which are obliged to have civil servants.
“The judges are also like lions under the throne, but in their eyes that seat is not occupied by the prime minister, but the law and their concern for the public interest. They owe their loyalty to that law and to that care. In this lie their strength and their weakness, their value and their threat,” emphasizes the commentary of the Bangalore Principles.
(The column is part of the AGTAC project, titled “Childhood Diseases of Democracy”, funded by National Endowment for Democracy – NED)
Views expressed in this article are personal views of the author and do not represent the editorial policy of Nezavisen Vesnik