I had an interesting discussion with one of my students this morning. He was of the view that judges are needlessly and incorrectly allowing their personal feelings and belief systems to influence their judgments. It does happen that a judge will arrive at a finding that has no apparent basis but for his/her own beliefs or feelings. Those decisions are probably not in keeping with a judge’s duty to apply the law impartially and fairly. What about a decision that clearly reflects the judge’s beliefs or value system and which is arrived at through a process of analysis of relevant and perhaps even authoritative legal reasoning in other jurisdictions? Is that decision more valid because the judge considered like minded people in other jurisdictions than the judge who arrived at a decision that judge felt was justified without any supporting authorities?
I suggested to the student that while our laws serve a practical purpose (theft and murder, for example, are outlawed partly because if they are not criminalised rampant theft and murder would undermine the fabric of our society) in that they protect the fabric of our society (assuming our society is a society worth protecting), you cannot remove the human component of our judicial and broader legal system for as long as humans fill those functions. I argued that our society generally dictates the path of our legal development having regard to the prevailing belief system, whether that belief system is shared by the majority of citizens in South Africa or whether it is a dominant belief system shared by humans generally (or somewhere in between). In a way, our laws fulfill a dual role, they protect our society and they advance our beliefs and even enforce them. I share a belief that a nation’s laws reflect the dominant values of that nation and if this is true then we are certainly better off now in South Africa than we were under the previous regime.
An illustration of how our values and beliefs shape our laws is the Constitution which requires that our law be developed in line with the values espoused by the Constitution. But what is the Constitution but a reflection of a reflection of the ideals the majority of South Africans share given the force of our highest law and the standard against which all our laws are to be measured. When a judge develops a law (for example the recent finding that the Marriage Act unfairly discriminates against gay couples) in line with Constitutional imperatives that judge is, on one level, upholding a law (the Constitution) and on a deeper level, the judge is reiterating a set of values which we subscribe to and which we have recorded in the Bill of Rights, namely the right to equality which states the following:
“Everyone is equal before the law and has the right to equal protection and benefit of the law.
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
So the development and enforcement of law becomes a process of changing or reaffirming our collective values and belief system. Where our legal system (including our judicial system) is used for self-serving means or even for a purpose that runs contrary to our stated values then that, too, is a reflection of attitudes towards those values. Perhaps this is a source of the notion that lawyers are members of a noble profession dedicated to protecting our society and working towards its betterment. I can already imagine that when I put it this way there is a fair amount of shock, dismay and hysterical laughter at the thought of lawyers as ‘noble’, let alone protectors of our values. Perhaps that is an indictment of the legal profession as a whole and a sign that there is a rot setting into the foundations of our society. As for whether this is a good thing or not, consider that buildings shattered by earthquakes are rebuilt even stronger than they were before. Perhaps this dark side of our legal system is the coming quake that will force us to revisit the purpose of our laws and what role our lawyers should play in our social system.
Ultimately, the manner in which our laws are created, developed and enforced is surely an expression of our very humanity. It may not be a reflection of the more appealing aspects of what and who we are but it is our mirror. It may even be the clearest mirror we have.