The New Law, the New World Order, and the Cultural Revolution
By Alejandro Ordóñez Maldonado
(Continued)
V. Judicial Voluntarism or Imagination as a Source of Law.
The judge forms his conviction neither by means of
logical deductions nor of thorough studies of pre-
existing doctrine, but through the instantaneous
formation of a "hunch" which tells him the concrete
direction his decision should take.
Diego Lòpez Medina
Anyone who is moderately familiar with the topic will notice a perfect coincidence between the Calvinist juridical doctrine and the New Law; it suffices to simply secularize it for a new school of judicial interpretation to emerge, or if you wish to be more precise, sacralization in the new school will turn around the constitutional judge and the constitutionality blocks, the rest is the same Calvinist doctrine already explained. The great majority of New Law authors hail from countries where Calvinism established itself in the social, political and cultural institutions of their regions. Having assimilated religious Calvinism, they incorporated it in judicial Calvinism. It suffices to cite a few examples:
In 1876, German jurist Siegmund Schlossmann (1844-1909), one of the forerunners of the School of Free Law transforms the creative activity of law into a certain, imprecise juridical sentiment at the same time conceived as rational and felt as an intuition. In turn, another German treatise writer, Oskar von Bülow (1837-1907), influenced by the historical school of law, in his text "The Law and the Judge's Ministry" proposes that the law is only a remote presupposition of the sentence. The judge is the exclusive determinant of the law and he is subjected to the norm as an indicative criterion only; he is in the condition of setting the exact law, even when his decisions may depart or contradict the legal precepts, the which possess only a merely indicative value. Eugen Ehrlich in 1888 published the well-known text "On the Loopholes of the Law" which in his opinion would be being resolved in concordance with the personal convictions of the judge. The text of the latter author, taken as reference by the local authors of the same school, shapes all of the theses of the Free Law movement:
These are the same principles taken these days as dogmas in our legal system, it suffices to read the sentences, quoted several times, or what one of our most distinguished domestic authors says in that respect: "The conflict is resolved without resorting to positive texts regulating the integrity of the typified institution. Rather, juridical argumentation is founded on less linear discursive logic... Instead of specific rules of conduct, the adoption of standards or principles which, outlining a very general rule, leave its concrete adaptation to a prudential judgment of the interpreter and not to the foreseeing capability of the legislator."
He goes further on asserting: "the judge acts as a producer of material justice visions and develops active virtues that put him in contact with, for instance, public expenditure ordering and managing." Contemporary constitutionalism assumes this doctrine fully. When a judge decides to ignore the statute or even the Constitution, he does it wielding as a pretext his duties of protection of the constitutional principles or values consigned in the Constitution or in some international treaty which form part of the constitutionality blocks; but, of course, nobody knows the contents of such principles or values.
It is the judge who, capriciously, provides the principles and values in each sentence. In practice, this is what happens, the large quantity of contradictory precedents so indicates. Rightly, Doctor Juan Manuel Charry, former dean of the law school of Universidad del Rosario, calls attention to the "uncertain and unpredictable character of constitutional control"; in the same vein, Doctor Sandra Morelli points out: "The Constitutional Court creates uncertainty... ignores our system of sources of law... and rids itself of any juridical ties... which is disadvantageous to the nation in general." Beyond a disadvantage, we are facing a constant altering of the Constitution by judicial means.
It is the paroxysm of judicial voluntarism, which many have compared with a Government by Judges, but would be more accurate to designate as Judicial Tyranny exclusive of the statutes and of logic in the judicial formation of law. As properly recognized by Kantorowicz, it is the Lutheran reply to the intellectualist harmonizing aim of Thomism. One of the authors of North American realism, quoted by Dr. Diego López Medina in his text "El Derecho de los Jueces" (The Law of Judges) states: "Source of law is not only the judge's notion that certain rules are valid law, but also his personal prejudices, his sympathies or antipathies, his whims, and private interests; in sum, everything which in any circumstance can psychologically influence his decision."
If I claim that imagination is for the New Law a source of law, I could be disqualified as an exaggerated critic, but it suffices for me to quote the following texts to free myself of such accusation. United States Federal District Judge Joseph Hutcheson, as quoted by Dr. Diego López Medina in his text "El Derecho de los Jueces" explains how he resolved a difficult judicial controversy: "I, after having gone over all materials at my disposal, and duly reflecting on them, let my imagination free, and considering the case carefully, I await the sensation, the hunch, that beam of understanding which in an instant allows me to make connection between the problem and the decision and, at the point where the road becomes darker for the judge, sheds its light along the route." The same author in trying to give an explanation of the hunch as a source of law sets forth the following text:
Very little has been researched about the ideological and political contents of the New Law in university lectures, in doctrinal texts and in law firms. It is welcome with zeal by some or condemned with ardor by others, but all without further analysis.
The former are imbued with the mythical idea of inexorable progress which, as Maritain will remind us: "Produces ritual resonances in the imagination", making them embrace anything new simply because it is new, equating it with the better without taking any other consideration into account. For them, the New Law is something novel and, as we have seen, reason enough to be accepted, considering that it responds to the law of history and its unstoppable advance, which no one can resist except for a few who are unaware of the "sense of history"; therefore, the principles on which it is founded will be taken as an apodictic truth, as a secular dogma of a new religion, with strange docility in the majority of cases, and because of intellectual laziness, the same texts, the same authors, the same arguments, the same precedents, are reproduced, despite their repeatedly resorting to ideological pluralism to justify "innovative decisions"; their thinking turns into gross dogmatism without any antecedents in constitutional history.
The latter circumscribe the controversy to a problem of judicial technique, reducing the entire debate to a conflict of constitutional competences, failing to point to their true nature when actually the technical aspects are perfectly secondary.
We have transitioned from a legalistic fetishism, where the law, divorced from the natural order and the common good, ends up being an instrument of private interests, efficacy taking precedence over justice, to the judicial fetishism of the New Law, where the judge, freed from any positive statute, ends up making of his whims the most important source of law. Both fetishisms share the same voluntarism except that the former place it on the head of the legislator and the latter on the head of the judge; voluntarism is their connecting thread. We are facing an apparent contradiction which is not resolved within the constitutional frameworkñ there, a philosophical error - voluntarism- simply manifests itself; that error owes a debt to the liberal juridical positivism which arose with the French Revolution as well as to the New Law, juridical expression of post-modernity, a mark which we can find in Kelsen, Bobbio or Hart as well as in Dworkin, Alexy or Heck, to cite the better known. The New Law in the philosophic sphere is simply the unfolding of voluntarism or, if you wish, of nominalism which, as rightly claimed by Villey, is interested only in nature's technical usefulness, reducing it to that and rejecting its objective value as well as the good and the just, leaving the will free to create them at their whim. Because of that, neither the ones nor the others accept limits other than their own will, which in the former takes the form of one half plus one, and in the latter the form of constitutionality blocks.
As said before, the will has limits fixed by natural law, since it cannot go against the nature of things; and it cannot found any obligation and, consequently, any right. When something in itself runs in contradiction with natural law, it cannot be justified by human will.
Professor Francisco Elías de Tejada, whom we have been following in a disorderly fashion, masterfully concludes: "In essence, the school of Free Law and its current shameful successors end up consecrating the voluntarism which perennially corrodes the law in the course of the centuries, above and beyond whatever rules the judges could create with their will following these trends, the juridical norm is always dictated by reason under penalty of excesses and arbitrariness." We can only annotate that, where said writer refers to voluntarism as a movement permanently corruptive of the law, it should be read to apply to the new law as well as to juridical positivism.
(To be continued)
Go back to Chapter iv
In 1876, German jurist Siegmund Schlossmann (1844-1909), one of the forerunners of the School of Free Law transforms the creative activity of law into a certain, imprecise juridical sentiment at the same time conceived as rational and felt as an intuition. In turn, another German treatise writer, Oskar von Bülow (1837-1907), influenced by the historical school of law, in his text "The Law and the Judge's Ministry" proposes that the law is only a remote presupposition of the sentence. The judge is the exclusive determinant of the law and he is subjected to the norm as an indicative criterion only; he is in the condition of setting the exact law, even when his decisions may depart or contradict the legal precepts, the which possess only a merely indicative value. Eugen Ehrlich in 1888 published the well-known text "On the Loopholes of the Law" which in his opinion would be being resolved in concordance with the personal convictions of the judge. The text of the latter author, taken as reference by the local authors of the same school, shapes all of the theses of the Free Law movement:
- Equating the functions of judges and legislators,
- Reducing the norms to the role of simple indicators for the judge, lacking imperativeness,
- Reducing the law to the decisions of the judges.
These are the same principles taken these days as dogmas in our legal system, it suffices to read the sentences, quoted several times, or what one of our most distinguished domestic authors says in that respect: "The conflict is resolved without resorting to positive texts regulating the integrity of the typified institution. Rather, juridical argumentation is founded on less linear discursive logic... Instead of specific rules of conduct, the adoption of standards or principles which, outlining a very general rule, leave its concrete adaptation to a prudential judgment of the interpreter and not to the foreseeing capability of the legislator."
He goes further on asserting: "the judge acts as a producer of material justice visions and develops active virtues that put him in contact with, for instance, public expenditure ordering and managing." Contemporary constitutionalism assumes this doctrine fully. When a judge decides to ignore the statute or even the Constitution, he does it wielding as a pretext his duties of protection of the constitutional principles or values consigned in the Constitution or in some international treaty which form part of the constitutionality blocks; but, of course, nobody knows the contents of such principles or values.
It is the judge who, capriciously, provides the principles and values in each sentence. In practice, this is what happens, the large quantity of contradictory precedents so indicates. Rightly, Doctor Juan Manuel Charry, former dean of the law school of Universidad del Rosario, calls attention to the "uncertain and unpredictable character of constitutional control"; in the same vein, Doctor Sandra Morelli points out: "The Constitutional Court creates uncertainty... ignores our system of sources of law... and rids itself of any juridical ties... which is disadvantageous to the nation in general." Beyond a disadvantage, we are facing a constant altering of the Constitution by judicial means.
It is the paroxysm of judicial voluntarism, which many have compared with a Government by Judges, but would be more accurate to designate as Judicial Tyranny exclusive of the statutes and of logic in the judicial formation of law. As properly recognized by Kantorowicz, it is the Lutheran reply to the intellectualist harmonizing aim of Thomism. One of the authors of North American realism, quoted by Dr. Diego López Medina in his text "El Derecho de los Jueces" (The Law of Judges) states: "Source of law is not only the judge's notion that certain rules are valid law, but also his personal prejudices, his sympathies or antipathies, his whims, and private interests; in sum, everything which in any circumstance can psychologically influence his decision."
If I claim that imagination is for the New Law a source of law, I could be disqualified as an exaggerated critic, but it suffices for me to quote the following texts to free myself of such accusation. United States Federal District Judge Joseph Hutcheson, as quoted by Dr. Diego López Medina in his text "El Derecho de los Jueces" explains how he resolved a difficult judicial controversy: "I, after having gone over all materials at my disposal, and duly reflecting on them, let my imagination free, and considering the case carefully, I await the sensation, the hunch, that beam of understanding which in an instant allows me to make connection between the problem and the decision and, at the point where the road becomes darker for the judge, sheds its light along the route." The same author in trying to give an explanation of the hunch as a source of law sets forth the following text:
"Some call it intuition, some imagination, that sensibility to new ideas, this power to explore when there is no path..."If someone should still harbor some doubts about the juridical effects which the School of New Law confers to the imagination, I think the following quote will clear all doubt: "Does all this lead to anarchy and the destruction of any and all security feeling? I don't think so. True security, absolute security, 100% security, we cannot attain. We can get close to it, but nothing more. Our worry is the prophecy... we should not fear arbitrariness.¨
Very little has been researched about the ideological and political contents of the New Law in university lectures, in doctrinal texts and in law firms. It is welcome with zeal by some or condemned with ardor by others, but all without further analysis.
The former are imbued with the mythical idea of inexorable progress which, as Maritain will remind us: "Produces ritual resonances in the imagination", making them embrace anything new simply because it is new, equating it with the better without taking any other consideration into account. For them, the New Law is something novel and, as we have seen, reason enough to be accepted, considering that it responds to the law of history and its unstoppable advance, which no one can resist except for a few who are unaware of the "sense of history"; therefore, the principles on which it is founded will be taken as an apodictic truth, as a secular dogma of a new religion, with strange docility in the majority of cases, and because of intellectual laziness, the same texts, the same authors, the same arguments, the same precedents, are reproduced, despite their repeatedly resorting to ideological pluralism to justify "innovative decisions"; their thinking turns into gross dogmatism without any antecedents in constitutional history.
The latter circumscribe the controversy to a problem of judicial technique, reducing the entire debate to a conflict of constitutional competences, failing to point to their true nature when actually the technical aspects are perfectly secondary.
We have transitioned from a legalistic fetishism, where the law, divorced from the natural order and the common good, ends up being an instrument of private interests, efficacy taking precedence over justice, to the judicial fetishism of the New Law, where the judge, freed from any positive statute, ends up making of his whims the most important source of law. Both fetishisms share the same voluntarism except that the former place it on the head of the legislator and the latter on the head of the judge; voluntarism is their connecting thread. We are facing an apparent contradiction which is not resolved within the constitutional frameworkñ there, a philosophical error - voluntarism- simply manifests itself; that error owes a debt to the liberal juridical positivism which arose with the French Revolution as well as to the New Law, juridical expression of post-modernity, a mark which we can find in Kelsen, Bobbio or Hart as well as in Dworkin, Alexy or Heck, to cite the better known. The New Law in the philosophic sphere is simply the unfolding of voluntarism or, if you wish, of nominalism which, as rightly claimed by Villey, is interested only in nature's technical usefulness, reducing it to that and rejecting its objective value as well as the good and the just, leaving the will free to create them at their whim. Because of that, neither the ones nor the others accept limits other than their own will, which in the former takes the form of one half plus one, and in the latter the form of constitutionality blocks.
As said before, the will has limits fixed by natural law, since it cannot go against the nature of things; and it cannot found any obligation and, consequently, any right. When something in itself runs in contradiction with natural law, it cannot be justified by human will.
Professor Francisco Elías de Tejada, whom we have been following in a disorderly fashion, masterfully concludes: "In essence, the school of Free Law and its current shameful successors end up consecrating the voluntarism which perennially corrodes the law in the course of the centuries, above and beyond whatever rules the judges could create with their will following these trends, the juridical norm is always dictated by reason under penalty of excesses and arbitrariness." We can only annotate that, where said writer refers to voluntarism as a movement permanently corruptive of the law, it should be read to apply to the new law as well as to juridical positivism.
(To be continued)
Go back to Chapter iv
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