The Judicial Role and the Rule of Law

Faculty of Law, University of Oslo, Oslo, Norway



The judge is under pressure when the legislator attacks the law. Should the judge enforce laws that intentionally and incessantly violate basic rights of individuals, deprive them of due process and the protection of the law, and submit them to draconic and disproportionate punishments? Should he contribute to turning the law into a systematic instrument of persecution on racial, political, or other grounds?

Many will perhaps be inclined to answer the above questions with a clear “no”. This is also my answer. One might say that the answer is obvious and in no need of deeper thought. According to the ideals of our western legal tradition, judges and courts should be the protectors of rights and liberty. At the same time, they should uphold the law; sometimes these two expectations are in conflict. In such situations, the judge has to choose whether to side with the legislator or to side with the ideals of the rule of law. Many judges, when the questions have arisen in practical real-life situations, have answered yes, they should uphold the law. This shows that the answer is not as clear-cut as we would like to have it.

Not only do many judges uphold oppressive law and enforce tyranny. In many cases, they at the same time believe that they are defending the rule of law as they carry out evil policies. Trying to show why this is the wrong answer while at the same time taking the situation of the judges seriously is what this book is about. The book revolves around three basic questions: what happens in situations when states turn oppressive and the judiciary contributes to the oppression? How can we, from a legal point of view, judge the judges who contribute to oppression? And how can we understand their participation from a moral point of view and support their inclination to oppose?

In oppressive regimes, there are always people who wholeheartedly support the oppression for ideological or personal reasons. Renowned jurist, Nazi ideologist, and president of the Peoples’ Court Roland Freisler of Hitler’s Germany is an example of this. Another example is Oswald Rothaug, of whom the US Military Tribunal said: “He was and is a sadistic and evil man”.1 This book is not for them and their likes.

The book is addressed to judges who experience oppressive legislation as a challenge to their conscience: should they follow the law and participate in the undermining of the rule of law, or should they follow their conscience and bend or depart from the law? I believe these to be the majority of the judges participating in the oppression of authoritarian regimes. They are performing a task that is distasteful and disagreeable to them but that they feel obligated to carry out.2 My aim is to show that there are other answers to the question of contributing to turning the law into a systematic instrument of persecution than the answer most often given by judges who are faced with this dilemma. I try to describe the situation of judges in some recent historical examples, test the limits of judicial cooperation to oppression under international and national criminal laws, and argue the extent to which judicial cooperation and resistance are justifiable from the point of view of legal and moral theory.

Judicial contribution to oppression and tyranny is a classic topic of critical legal theory and of sociolegal studies. This tradition seeks the explanations of judicial participation in social and political contextual factors. Judges do not always participate in oppression by authoritarian regimes and are sometimes together with others trained in law, such as the legal profession and civil servants engaged in activities to obtain, maintain, and defend the basic legal freedoms of liberal society. In many parts of the world today, judges and the legal complex are engaged in the struggle for liberal rule. In such struggles, the legal complex often plays a progressive role in line with the ideals of the rule of law and protection of basic legal rights. In fact, there is evidence to say that the “legal complex”, which is the body of legally trained occupations, in general mobilises in protection of basic legal freedoms. There are exceptions to this, particularly in situations of widespread public fears about internal disorder or threats to domestic security, when an otherwise liberal legal complex tends to support oppression by the executive.3

I wish to explore the endurance of the rule of law when it exists but is under attack. The main emphasis of the book is where there is a transition from the rule of law to a state where the legislator and the rule of law are in conflict. The examples I study all have in common a transition from a society with respect for the rule of law to authoritarian and oppressive rule. The book is a case study of examples from our recent western legal history where judges have supported the regimes in departure from the rule of law, notably Nazi Germany, South Africa of apartheid, and military dictatorships in Argentina, Brazil, and Chile. In addition, I study western European countries under Nazi dominance during World War II. All these cases are examples where public security has figured high on the list of social priorities. I am particularly interested in the development of legal thought and reasons as expressed in the rulings of the courts in such situations. In the study of Germany and South Africa, I go to original legal sources; in the other cases, my studies are based on secondary literature.4

One can ask whether there is anything of a general nature to be said about judges disembedded from their differing social and political contexts. In some of the situations described in the book, the society has been in a state of war. In others, the authoritarian regime has emerged from deep social conflicts and unrest. Some have been under foreign occupation. In some cases, the legislator has had at least some sort of basis in the existing constitution such as in Germany after 1933 and in South Africa. In others, the rulers have come to power through an unconstitutional coup. In most cases, the courts have been taken over by the new regime with the corps of judges more or less intact. Some authoritarian regimes make changes at least in the higher levels of the judiciary by packing the Supreme Court like in South Africa or by substituting its judges as in Argentina. In many cases, the regime established special courts or military courts to enforce oppressive legislation.

The issue of whether one can draw general conclusions from such a diverse set of circumstances is obviously a valid concern regarding a survey as the one I undertake here in the book. The reason I believe it is a worthwhile undertaking is that despite differences in role, function, legal tradition, and social conditions, judges of our western legal tradition do have some things in common. According to American legal historian Harold J Berman, western legal tradition has common roots and a history where law at different points in time has been invoked to protect the dissident and the heretic against the prevailing political and moral forces of society.5 I believe Berman is right about this. The ideology of law as something autonomous dedicated to protecting more general values such as justice, equality, and the rule of law binds judges together across time and space. The purpose of the book is to examine to what extent this is true. This binding may be subtle and fragile at times, but it is nevertheless there in the way we speak about law in out societies. The ideology that the law is autonomous is the very reason why also authoritarian rules seek the legitimacy that can be bestowed upon them by the law. The book is a survey of how judges struggle to accommodate this ideology, how they defend it, and how they depart from it when it is under attack from the legislator or the executive. In order to test the extent to which there is such a common line binding judges together, it is necessary to cut across a lot of different settings where the rule of law has been systematically imperilled.

Judges in the situations I study have in common the fact that the basic values of the western legal tradition are under attack from the state and the judges are called upon to join this attack against the tradition. I will argue in the book that there are some standards by which to measure the response of the judges to the attacks on the rule of law. Based on criminal cases against judges for participation in atrocities of authoritarian regimes, it is possible to perform an evaluation regardless of the specific social and political situations. These standards entail a minimum core of justice applicable to any legal regime. They are not based on natural law but on decisions of international tribunals and national courts and codified in international conventions. I will also argue that there are common dilemmas facing a judge in the situation where positive law contradicts standards of justice, equality, and the rule of law. The answers to these dilemmas will vary with place and time, but the type of reasons the judge must consider in order to take a sound and defensible course of action is the same in all situations.

Drawing upon the tradition of David Dyzenhaus, I focus my study around “wicked legal systems”, societies where the law is used to enforce a repugnant moral ideology, be it an ideology of racism, such as Nazi Germany or South Africa, or an ideology of severe oppression of any opposition, such as the military dictatorships of many Latin American countries of the second half of the last century. Laws that are systematically employed in the persecution of people on racial, ethnical, or political grounds may easily be characterised as evil. The same characterisation may be given to laws that mete out grossly disproportionate punishments and that treat persons accused of a wrong according to who they are and not what they have done. Evil also are laws that depart fundamentally from standards of equality before the law and from the demand that the subjects of the law should be able to predict the outcome of legal proceedings on the basis of laws that are enacted in advance. Such laws are immoral and in clear contradiction to any notion of justice and the rule of law. The so-called positivism debate on whether such laws can be rightly characterised as “law” or not lies outside the scope of this analysis. The question of whether positivism is to blame and can offer an explanation for wicked judging is, on the other hand, part of my analysis.

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