The New Law, the New World Order, and the Cultural Revolution. III

The New Law, the New World Order, and the Cultural Revolution

By Alejandro Ordóñez Maldonado

(Continued)

III. From Legalist Fetishism to Judicial Fetishism

"For those societies which abandon

the austere cult of the truth for the idolatry

of ingenuity, there is no hope at all, 

after the sophisms, come the revolutions, 

and after the sophists, the executioners"

Juan Donoso Cortés

How delicate is the exercise of authority when justice is administered, when what is right is stated in each concrete case; how much risk of lacerating justice when we reduce the law to the words of the statute or, even worse, when we transform this into a phenomenon of power, forsaking our priesthood for justice.

We cannot reduce the judicial function to the rule of a law which often lacks legitimacy or to juridical technique, but neither can we hand it over to juridical imagination, which has turned into a source of law nowadays. A jurist must be conscious that his mission is not to be at the service of the law, but at the service of justice, he is not a functionary of the law but a server of justice on behalf of society. Without a doubt, a jurist has to seek the sense of the statute and has to abide by what the law prescribes but he has to interpret it as a function of what is fair, that is, of what is just in the concrete case.

"The judge should be faithful to the law, the law should be faithful to justice, and both of them should be faithful to the common good, but if the law is not faithful to justice, the judge cannot be faithful to the law."

Rightly has the perennial philosophy taught us: The text, understood as the juridical norm, gets its authority in the first place from the fact that it expresses natural law, not from the mandate dictated by a master, whether this be a prince, a Führer, a legislative assembly, a Kafkian bureaucracy or the aggregative sentences of a Court. Positive law receives its strength from the fact of containing justice; this is why, when an author who cannot be suspected of militating in the ranks of the new law, as was Saint Thomas, was asked whether the judge should be bound by what is written in the law, he responded:

"Not when the text runs against justice."

He even unequivocally asserts the following principle that any jurist has to have engraved in his conscience should he not want to become a law technician, a passive interpreter of the law or, what is the same, a slave of power.

"Lex esse non videtur quae justa non fuerit."

 Professor Tomás D, Cásares, in the quoted work summarizes in a modern manner the aforementioned principle in the following terms:

"There are situations where the conscience of what is just commands us to disobey the law. Not only is what the law commands not proper, but what it commands runs against what is proper. And when this happens, it commands without authority, which means that authority lies not in positive law by the mere fact of it being law but because of the reason by which it commands. The law is not imposed in our conscience, nor does it create a duty of justice from the fact of being law but from its intrinsic content, from the rightfulness of its purpose..."

 In like manner, Professor Álvaro D'ors confirms this, tersely but masterfully: "No legality without legitimacy", understanding it as conformity with the law but with a law more permanent than simple legality, one which does not depend on a social contract but on a suprapersonal cause, which is natural law, the classical juridical realism. This is how he explains it: 

"Relations amongst persons and the authority of those in power should be supported necessarily by an anterior and superior source to have justification. As Divine revelation is silent on almost everything concerning the temporal order, it is necessary to seek in nature, which is the work of God, the order which it may contain in conformity with the Divine plan. And this is the only solid possibility available to us, since, if no natural order exists, neither can there be justice, by it being left without an object above and beyond the will of those who impose it."

Abandonment of such legitimacy was translated into a growing discredit of legality and of democratic legitimacy, laws which the citizen neither understands nor loves, as per Rafael Gambra, in which only their constrictive character and their irrationality can be seen, and end up, as would be expected, being obeyed ever less.

With the former philosophy contrasts the conception of law which positivism has:

"The law deserves being obeyed, no matter what its contents, its 'material' justice, or its usefulness may be, only by reason of its 'form', because it proceeds from competent authority, because the competent will, invested by the social contract of free men has ordered it so,"

today dramatically contested by juridical post-modernity, meaning to be the New Law, which most certainly will end up dissolving it, consolidating another voluntarism headed by the judicial organs.

What a drama to reduce law to a simple system of norms! This was the temptation into which the juridical positivism fell, being it reduced to a simple form of social control, which gave rise to a reaction as noxious as the preceding one, which has been taking concrete form in what is now known as the 'New Law', in vogue in our courts of law, where the law disappears to give way to the subjective criterion that the judge may have of what is right; a very well camouflaged or quite technically administered subjectivism, with the pretext of the primacy of principles and values, which on purpose lack constitutional concretion but which are always brought up to interpret a law against the law or the constitution against itself, and which have as a purpose to ignore the limits that the law establishes, with which law ceases to be a fair objectivity to turn into an expression of the will of some technicians. This ends in the abolition of the rule of law, in a relativization of justice, in voluntarism which canonizes possible subjective injustices, and in the disappearance of the primacy of justice. It now even results to be admissible that constitutional judges modify laws by means of so-called aggregative sentences. As rightly pointed out by Geny: "allowing judges to be able to modify laws would be the most utter anarchy; it would be the subversion of law"; but today this is what is considered to be juridically correct.

Good it is to remember, this new philosophy has nothing to do with the juridical realism of Aristotelic and Thomistic lineage, as some people believe today; while it is true that for these, the law is what is just or, better said, the just thing due other, but what is just as something objective, embodied in the law by him who had the community under his charge for the common good, quite distant from the contemporary voluntarism and agnosticism without which knowing what is naturally just by means of reason was not deemed to be exotic.

The former, as Michelle Villey reminds us, would discern the natural institutions from those which opposed them as well as the justness from the unjustness of things. The will was not an originator of rights and neither was reason, the latter was a means to discover what is just in the manyfold social relationships.

A thing very different from the judicial activism present in the majority of our legal systems, where the judge turns into: "the legislating judge, the mediating judge, the hero judge, the controlling judge, the social operator judge". O tempora, o mores!

From another perspective, with the above coincides Spanish jurist Alejandro Nieto, who, on receiving the Honoris Causa title from Universidad Carlos III stated:

"Since if this is so, it is high time that we get rid of hypocresies and call things by their name ... High time that we stop cheating the citizens and misleading the students. Because it is not a matter of ignorance or of bad faith, but something much more serious, namely, that laws neither order society nor resolve conflicts but rather that, at most, they are guidelines, reference points that the legislator puts in the hands of functionaries and judges, knowing well that they will apply them very partially, and what will be decisive is not the will of the legislator but the personal criterion of the operator.

But, what will those criteria be which move the jurist to accept the law only to the extent that its content agrees with his judgement? Therefore, it is certain that they be personal opinions: which explains the difference in decisions and, in the second place, it will be a criterion foreign to or trascending the norm. Be it very clearly said: each juridical operator has a personal purpose in each concrete case: at due time, he contrasts the norm with such purpose and, if it is convenient to him, he will apply it, but if purpose and norm are not in consonance, he will reject the norm or twist it without scruple until it becomes useful to him... 

The theory of the purpose is something known, but notice that I am talking about the subjective, personal and selfish purpose of the juridical operator, and not of the objective and social purpose of the norm.

On hearing this, tear his gown whoever may wish to do so, but such is the reality, and I prefer to be condemned for scandal rather than being taken for a fool." 

(To be continued)

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