Justitia or Lady Justice (photo from here) as she is sometimes called represents the power of the courts (through her sword), the need to balance competing interests (scales), and the equality of law (through her blindfold). Lady Justice has not always worn a blindfold.
However, despite the ideals that Justitia aspires to, it is interesting to contrast this with the writings of Anacharsis (Scythian - Ancient Iranian) in the 6th Century BC, who wrote:
Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.
(Plutarch Parallel Lives 'Solon' bk. 5, sect. 2. Cf. 319:19)
The interesting issue for me relates to my previous post on Prita Mulyasari and whether justice is really blind to those events that unfold around it?
Maybe it is time for me to get back into the practice of law...
6 comments:
How do judges make law? what is the basis of their discretion? NO, I didnt study law, so this is not for me a recycled Law 1 legal essay -- but I dare say those who start to become interested in the law should be given a hint of the answer to the above, to encourage them.
I have never really understood the great development in common law of Equity (the fairness principle) - just why was Equity so earth shattering? I mean, I hear my students ask, what was there before fairness??
Lawjug...
I am not sure that I believe you on your claims not to have studied law. But, nevertheless, judges make law from the bench but changing the rules of the game or establishing new ones.
In the Prita Mulyasari decision, the idea that the law is not in force is changing what has been established practice in Indonesia for some time. Specifically, the provisions that say along the lines of, "this law will come into force as of the date of its enactment". (note not the passage through parliament but rather, in the Indonesian case, once it has been signed into law and published in the State Gazette.
Judicial discretion is that, as human beings, judges have the ability to interpret the prevailing law and regulations within the context of the applicable facts. This is simply the idea that the facts are as they are and cannot be manipulated, but the law can be interpreted.
Hopefully, you are encouraged :D
I do not know that the Mulyasari case is exclusively one of fairness in the equity sense. Fairness in law is a two way street. The issue in the Mulyasari case is to do with criminal defamation and whether it should exist in a democracy and in particular Indonesia's democracy.
Some have argued that it is only a consumer rights issue. I am not convinced that it is (although I could make arguments that it is). However, there are consumer issues involved relating to how one is to complain about poor service and what course of action they can take in the event they do not get the satisfaction that they believe they are entitled to.
Maybe equity in common law is an attempt to codify a concept, of justice perhaps, that already existed in those communities.
The idea of equity is a simple one in that where the law fails to give the result that is expected or "required" then there is the discretion to do what is "right". These are in many ways subjective rather than objective ideas.
Lawjug...
No comments on the Prita Mulyasari post? Perhaps it was a little too long? ;)
No, not yet. Btw Im "sorry" to say Im going to use it in an intro class this week. I will report on its usefulness. You will be cited of course.
Again I appreciate your comments above - am watching "emerald falls?" on aust network Jakarta right now - slowed me down a bit.
the article was long no doubt but that it has to be...
As much as legal cases seem to be a great stimulus to blog about, I wish to note that they tend to flag after a day or two - the big media can only keep it going for about two weeks (without another cadaver) - so I guess bloggers do well to hold even that level of attention.
I am undecided about why legal posts "seem like a good idea at the time". I would say Richard Ackland gets about 7 readers a week!!
Lawequi...
I would have thought Mr. Ackland had a few more readers than that.
I guess it depends in the case as to how much attention it may or may not demand. The Manohara case is a case in point. It has certainly dropped off the radar and I will guess that it will remain that way until either Manohara or the Prince ups the ante.
Good luck with the class.
This won't work in reality, that is what I suppose.
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