Faith in justice?

The judge is a human being. That being so, can we place our trust in the correctness of their decisions? The question is powerful, since the maintenance of one of the three pillars of our democratic system depends on its answer. However, that answer is not obvious.

Neither can one affirm with superb blindness that yes, as some judges particularly claim, nor can one answer no forcefully, as anyone who loses a process usually says, when he loses it, of course. The only correct answer is that it depends, and there are good reasons for that.

Judges usually have to carry out two jobs: discover the reality of the facts and carry out a correct interpretation and application of the laws, taking care that when carrying out this work fundamental rights are not violated. And one of those that must be especially preserved is the right to an independent and impartial judge. They violate it every time their emotions, whether they have an emotional or ideological origin – ideology is another form of affection, basically – influence them when it comes to judging.

It may be thought that the use of these emotions is a key human factor so that one can speak of “justice”, but exactly the opposite happens. Emotions alter the rationality of judgments and, in this way, although citizens who share those emotions will consider these sentences to be correct, in reality they are completely wrong.

It happens quite frequently, particularly when a case is in the media, but not only. Aside from this, one of the main obstacles in judicial work is evidence, both its practice and its assessment. To find out reality, procedural laws have not designed over the centuries a scenario similar to a laboratory in which the judge, as a scientist, could investigate the facts. On the contrary, following an alarmingly scarce evolution of ancient traditions, the laws are based on the basis that the memory of witnesses is – or can be – photographic, when in reality it has a very poor performance, as is more than scientifically proven.

Furthermore, these same laws have assumed for millennia that judges have the supernatural power to know who is lying in those colorful pseudoscientific farces that are interrogations, which would be entertaining if they did not cause the anguish of many interrogated and were not, in the end, a miserable waste of time.

But of course, although people remember poorly and judges cannot know who is lying, many think – wrongly – that how are we going to put an end to the first means of proof that existed historically for millennia, even if it only serves, not to find out reality, but for lawyers to try to create, with their questions, an image of a witness or a litigant that inspires the judge’s empathy towards that lawyer’s positions.

Faced with the deep insecurities that this horrendous perspective offers, judges usually take refuge in expert evidence and especially in documents. The former have the problem that judges lack the technical knowledge to know if an expert – doctor, biologist, engineer, etc. – has done a good job in their opinion, which makes them go blind too many times. On the other hand, the documents have the advantage that they can at least provide a sentence on which to base the sentence, even if that sentence may be false, or may not make the slightest sense if all the data of the case are observed – the so-called indications – and which are usually left aside due to the complexity involved in their assessment. With all this, obviously, it is difficult for the judges’ evidentiary conclusions to be correct, except in exceptional cases in which they do carry out the work of a true scientist, carefully considering these indications.

I insist, sometimes it happens, but this serious investigative work costs an enormous effort that there is usually no time to carry out, with the courts collapsed as they are. To cover all these shortcomings, judges frequently use rhetoric, as do lawyers and jurists in general, in fact. Given the lack of data to reconstruct reality – or the absence of patience or time to collect it –, instead of sincerely declaring that these facts do not exist because they could not be proven – this is what any scientist would do –, too many judges, To simplify – excessively – the resolution of the case, they allow themselves to be carried away by a quick prejudice about what really happened, a prejudice that is inspired by usually sociological circumstances.

This prejudice gives them a quickly formulated, only intuitive, idea of ​​how the events must have happened. And with this hasty and prejudiced story, they finally use their emotions to motivate the sentence in accordance with that prejudice, taking into consideration only some data that result from the test selectively, in order to establish their initial idea, leaving aside everything which does not serve to substantiate that conclusion formulated at the beginning of the process, with scarce data.

And all this to the despair of many lawyers, who see how the ruling, in reality, does not even minimally take into consideration all their arguments. It doesn’t always happen, but, unfortunately, it happens all too often. And the same sometimes happens with the work of interpreting laws. Instead of doing a scientific exercise that searches for the different meanings of a norm that the legislator thought about, with deputies and senators of Parliament visualizing the facts to which the future norm would be applied, judges and lawyers turn their backs on that will of the legislator using rhetoric, appealing above all, again, to emotions, in order to make the law say, not what the legislator meant, but what judges or lawyers want at that moment.

This is a trap we fall into too many times. On the contrary, as suggested before, emotions are only an atavistic biological survival mechanism, but one that has a social relevance that is extraordinarily exaggerated by literature above all, although not only. Regardless, the problem is that emotions often lead to wrong decisions, which is not surprising. An evolutionary mechanism that only serves to detect imminent dangers quickly cannot be used to make decisions that require slow reflection, such as a judicial decision.

However, it is much more comfortable and simpler – and even more popular – to let yourself be carried away by them, avoiding that careful reflection. And for this reason, all that rhetoric in the writings of lawyers and judges, all that verbiage in essence, is based on those emotions that are desperately appealed to. And it’s a shame, because a good judge is infinitely grateful when lawyers give him objective information, and good lawyers like to prepare cases by offering it, without passion. Speeches based on rhetoric are evidently not that type of information, although judges sometimes also use that same method, particularly in controversial decisions that only seek to distort the reality of the facts or what the laws say. All of this has happened, fortunately not frequently. But it happens. Sometimes it conceals a lack of diligence, especially in processes in which the judicial analysis has been superficial as a result of the accumulation of cases.

Someday perhaps, governments and legislators will realize all of the above, finally understanding that they must ensure that judges become true scientists, making the courts stop being bureaucratic offices with an out-of-date courtroom, which are already It is of little or no use, despite its popularity. Artificial intelligence will help – the day some government decides seriously and knows how – to bring about a drastic reduction in pending issues. Perhaps then will be the moment in which the training of judges – today it is very defective – and the mechanics of the processes – which is medieval – will finally be reviewed, in order to ensure that these trials become spaces of authentic science in the that reality be ascertained and the mandates of the legislator, which are the mandates of the citizens in a democracy, are correctly applied.

Meanwhile, we will continue waiting while pretending that everything works correctly, when we have all known deep down that justice, and partly Law in general, works with its back turned to scientific evolution in other fields of knowledge, which It is, thought coldly, dramatic.

It is our own lives that are involved in judicial processes.

* Jordi Nieva is the author, among other books, of ‘The Origin of Justice’ (Tirant Lo Blanc Publishing House)

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