What is happening in Egypt right now brings me to a discussion I have had many times with friends. Should the Judiciary power be basing its decisions on what is just, or on what the laws say ?
To be sure, it is dangerous to have a power with no constraints, because it will never fail to become arbitrary, and therefore totalitarian.
However, if judges issue decisions based on the laws of the moment, then the judiciary is not all that different from police or other law enforcement; Except may be if the judges themselves are more honest and morally irreproachable than the rest of law enforcement.
On the other hand, if judges base their decisions on the ideal of justice, then in many cases, no two judges will agree on any decision, as ideals are by definition evasive and their perception quite personal.
In my opinion, the ideal of Justice becomes quite practical when it is seen as constrained by a social and moral contract between all citizens of a country, usually called a constitution. Beyond that, laws can be just or unjust, and applying the law doesn’t guaranty justice by any means. For that reason, laws should only constrain the decision of a judge if he believes those laws to just in the particular case he is looking at. If someone steals goods from somebody, it could be deemed just to force him to return what he has stolen and compensate for the physical and psychological harm and for the hardship or inconvenience he caused; It could also be deemed just to have him pay for all the damage and hardship including the value of the goods, and to imprison him; it could even be deemed just to cut his hand in addition to repaying all he cost. It is ok that a judge bases his punishment on what the law says, as long as the damage done is paid. But if a law says that whatever is stolen is lost, and that the only punishment for the thief is prison for example, I think it is normal that judges will not use that as the basis for their decisions, as it is unjust to the rightful owner of the stolen goods.
Of course, for all people exposed to the history of English speaking parts of the world, the struggles for human rights come to mind immediately, particularly the Letter from a Birmingham Jail by Dr. Martin Luther King.
To come back to Egypt, I believe that the decision of the president to forbid the judiciary from rescinding any decisions he has made as president (keep in mind that in the absence of a legislative body, his decisions are laws), would have had no effect if the judiciary power was based on Justice instead of laws. They would still, regardless of his latest decision, be able to reject any decision he makes or has made based on its injustice. However, in Egypt, Judges are bound to make their decisions based on law, which allows for the extremely dangerous situation where the president can actually have all powers in his hands. That is more power than anyone ever had in at least the last half a century (it arguable whether Hitler had more power or not).
What would have been a much better situation is, in the absence of a constitution, for the judges to be constrained by the clearly adopted values of the Egyptian people, and to seek justice in their decisions, taking laws into consideration when they believe they are just (in the case of making a decision that could allow for different just outcomes, they abide by the law) and not taking them into account whenever they believe the law(s) are unjust. Morsi would have had no ground to make such decision, and some of what seems to have pushed him to that extreme would probably never have happened in the first place. I can hardly think that anyone, leave alone a prominent Egyptian Judge (Egypt, even though has been for long a dictatorship, has kept a fairly incorruptible judicial system), would have thought that it is okay to dissolve the legislative power because of technicalities, when there was no reasonable interim. I believe that decision was made because Judges are bound by laws, and laws are very technical. Had that decision not been there, two things would have happened :
- Morsi would not have had the power to make his latest decision
- There would have been no ground for such decision in the first place, as it would have had no effect.
I believe that societies without governing bodies are almost the worst thing that could happen (absolute arbitrary power is the only exception I can think of).
I believe that power needs to be, but that it needs to be balanced.
I believe the ultimate constraint to any power is justice. I just can’t comprehend how Justice can be controlled by laws that are, in the best case scenario, made by a majority (practically by a plurality, as even in the most representative system, i.e. a proportional representation, very few free elections have participation and result that actually give a majority of all adults to any side. When laws are made by a legislative body, laws are made by a majority of those elected, and one would have to account only for the percentage of the parliamentarians in favor out of that majority/plurality).