Logocracy - Chapter 19: The Judiciary

On lawyers, judges, and all kinds of courts

Jean-Louis Forain, Trial Scene (1904)

Lobaczewski is a supporter of Montesquieu’s principle of an independent judiciary, writing:

Where the judiciary becomes subordinated to political power, the abuse of the law against those opposed to or critical of the current power begins. In totalitarian or pathocratic systems this leads to violence against normal, rational human beings, carried out by individuals psychologically alien to the nation or aberrant—thus to the degeneration of law itself.

He recommends the basic form still present in democratic nations, with a focus on case law and precedent (like the British common law). Where it will differ is its basic content and methodology. The law, as an evolutionary system that develops and builds upon itself, cannot be wiped away and begun anew, but it should adapt itself to modern advances in the understandings of human nature, especially in the department of psychopathology. Family law, for example, would benefit from a better understanding of personality disorders and their effects on children. (I think they should adopt an idea present in Lobaczewki’s other so-far-unpublished work on psychotherapy, Word Surgery: when one parent is personality-disordered, the other should be the one responsible for the child’s upbringing.)

Richer content, and a legislative process suitably adapted to logocratic principles, will foster the further evolution of law. “In democracies,” by contrast, “the undue pressure of political opinion inhibits rather than accelerates these processes.” This will involve additional educational background requirements for prospective lawyers and judges, e.g., in medicine, technology, philosophy, education, and/or psychology (especially for family and juvenile courts).

The supreme court will hear appellate cases and judge them in the light of natural law. (As mentioned in a previous chapter, in the hierarchy of law, natural trumps positive law when conflicts arise.) Its decisions, e.g. in the new civil law and criminal (rehabilitation) law, will establish patterns to be followed by the lower courts.

While the head of state will retain strong powers of granting clemency, the judiciary will largely take over this role. Guilty parties will have the right to apply to the injured party for pardon, and conditional pardons will be granted based on the merits of the case. As Lobaczewski writes, “Forgiveness can be, in certain psychological and political situations, the most effective means for the improvement of a person.” One-size-fits-all law ignores this aspect of human nature, but anyone who has or has interacted with children knows it is absurd. Some people do not respond at all to punishment (e.g. psychopaths), while for others, the merest sign of disapproval is enough to inspire genuine remorse and immediate reform.

The judiciary will have one or more senators to represent it in the legislature, and have the ability to put forward legislation as well as candidates for senate, head of state, and head of government. The judiciary will elect its own head (minister of justice), with presidential approval. “He would be responsible for the representation of this power in the government, its administrative and financial side, and the supervision of rehabilitation institutions.” The judiciary would thus have representation in both the executive and legislative branches.

While Lobaczewski supports the relatively novel idea of constitutional courts, he thinks they should be separate from the supreme court. He will present his ideas on the constitution and its courts in Chapter 22.

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Chapter 19: The Judiciary

The validity of Montesquieu’s principle, which proclaims the independence of the judiciary, has been particularly confirmed in recent decades, when the right to independent judgment has been restricted or violated in many countries. Where the judiciary becomes subordinated to political power, the abuse of the law against those opposed to or critical of the current power begins. In totalitarian or pathocratic systems this leads to violence against normal, rational human beings, carried out by individuals psychologically alien to the nation or aberrant—thus to the degeneration of law itself. Therefore, a logocracy will all the more consistently preserve the principle of judicial independence, doing so with due consideration and respect for the human person. The judiciary will nevertheless implement a positive law which, being dependent on the natural law, values the social good, and it will act in the light of that law.

The adoption of a logocratic system will lead to the evolution of law itself. These changes will result from the law’s rapid assimilation of scientific progress and the corresponding legislative process, realized through the properties of a logocratic parliament. In democracies, the undue pressure of political opinion inhibits rather than accelerates these processes. Of course, in the first years of the formation of the system this process will intensify considerably and it will not be humanly possible to avoid certain errors. All the more so, the work of improvement should go on. The judiciary will take an active part in working out the new law. Acting in the light of natural law, it will use its experience to establish jurisprudence and precedent, and will cooperate with the legislature.

The organization of the judiciary will be similar to that found in democracies. However, its internal content and the manner of solving legal problems will differ from the operation of law in democratic systems as much as the spirit of law and its philosophical principles will differ. Nevertheless, it should be noted that the main trends in the development of law are similar everywhere, and logocracy cannot be outside its natural current. It should, by the very nature of its principles, be at the forefront of this process.

As already stated, the new law will require a different kind of scientific preparation of lawyers and judges that will provide them with a more naturalistic way of thinking. Philosophical preparation and a biohumanistic understanding of human beings should prevail over legal casuistry. Many judges will have a dual preparation, high school in pedagogy, medicine, technology, etc., and university in law.¹ There should be judges with a dual university background in the highest tribunals. Consideration should be given to allowing persons who have studied psychology and pedagogy and have received appropriate legal training to serve as judges in family and juvenile courts.

The supreme court will hear appellate cases in the light of natural law as well as the new civil and rehabilitation law, thus developing case law patterns for the lower courts. The latter, building on this case law, will adapt to the new style of operation. The supreme court will be required to notify the legislature whenever existing law is inadequate with a request for a legislative solution to the issue. Because of the moderately increased role of case law and precedent, this new style will bear some resemblance to the British modernized Common Law, but should not resemble the American caricature of it, although historically it grew from the same trunk.²

The court will also act as the holder of the right of pardon. Such a right derives from the natural law, and for this reason a judicial authority which does not possess this right cannot be considered sufficiently independent. Forgiveness can be, in certain psychological and political situations, the most effective means for the improvement of a person. Of course, most often it will be a conditional pardon, that is, a suspension of the execution of a rehabilitation procedure. This right used to be a royal prerogative and should be taken over by the judiciary in full compliance with its powers. A special right to apply for a pardon should be granted to the injured party. Nevertheless, the head of state should have a wide range of clemency rights, especially in political matters.

The judiciary will elect its representative senator, possibly more than one, and several senatorial candidates, depending on the discussed resolution of the senate issue. It will have the right to put forward candidates for president and prime minister. The law will determine the procedure for these elections. The minister of justice would be elected according to the procedure provided for representative ministers and approved by the head of state. He would be responsible for the representation of this power in the government, its administrative and financial side, and the supervision of rehabilitation institutions. The senator or senators representing the power of justice would take part in the work of the senate as a whole, and would represent the affairs of that power there. Since the senate will have the right of legislative initiative, this will provide a permanent way for the two independent powers to work together.

The establishment of constitutional courts in a number of countries is a certain novelty of the system, which to a large extent passes the test in practice. Adapting this achievement in a logocratic system seems advisable, the more so that in the phase of formation of such a system the assistance of this institution in maintaining the rule of law of the state and efficiency of the legislative process would be extremely valuable. The separation of this tribunal from the Supreme Court results from the dissimilarity of the tasks of these institutions. In the solutions proposed further on, however, this tribunal has been removed from the administration of the judicial power and subordinated to a permanently operating constitution, which seems to be a better solution and more in line with the spirit of logocracy. This will be discussed in Chapter 22.

Note: This work is a project of QFG/Red Pill Press and is planned to be published in book form.

1. HK: Presumably this would translate to something like bachelor’s versus masters or doctorate degrees in Western university.

2. HK: For a comparison of the systems, see here. Distinguished from civil law, common law is the “Body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute. Under the common-law system, when a court decides and reports its decision concerning a particular case, the case becomes part of the body of law and can be used in later cases involving similar matters.”