The Law as the Basis for Democracy

13. 9. 2010 / Boris Cvek

As the former president of the Judges` Union, Jaromír Jirsa, warned on the Sunday political TV show of Václav Moravec, president Václav Klaus, in his recent speech in the Czech Parliament, attacked, as usual, the Constitutional Court, and came up with the concept, that executive and legal powers derive from the powers of legislators.

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By doing that, Klaus completelly broke up with the idea that the Law is something more than the text created in parliament, not accepting that the Justice needs to interpret the laws, totally independent from political interests, which need to be respected by the other powers as part of the checks and balances system that holds developed democracies.

Nevertheless, I could agree with some other remarks made by the president in the Parliament, where he came to support the new center right coalition and their proposed tightening budget reforms, as, for example, his affirmation that our legal system is too complicated and flooded with the bad work of our legislators.

I would add that it is also too positivist -- meaning that it is too much based on the letter of the Law, and that whatever the parliament decides should be respected. That was the case of last year's attempt by Czech parlamentarians to change the Constitution to fit their wanted early election date, which was subsequently cancelled by the Constitutional Court.

The Constitutional Court's president, Pavel Rychetský, who used to be, during his time as an elected politician for the Social Democratic party, in favor of politicians` freeway to make laws as they wish, has changed his mind, as probably any politician, or even the president, would, if they become a watchdog for our judicial system. And the Justice system is a much more important base for democracry than politics, general elections or a parliament.

Our Western civilization hasn't emerged from the Athenian-rooted voting masses power, but rather more from the English concept of the appeasing neutral third-party judge and from the limitation of powers of the sovereign leader (the king) towards their subordinates -- as was with the Magna Carta or the Habeas Corpus Act.

Legal protection and the good functioning of the Law ensures and defines freedom, equality, human dignity in society not thankst to the fact that some wise legislator created well some law, but only when the legislator is wise enough to read the social consensus and the evolution of the society and its needs.

The Law is above the parliament and its main stage is the courthouse. Its guiding source is our understanding of the meaning of justice in conflicts in the workplace, within family, among neighbors, etc.

Of course the law is not the judges's property and they also have to be wise enough to read the society's needs. I certainly don't illude myself with the "quality" of Czech judges, and it is for sure that we need some reforms in that field, criticisms are welcome, and when it comes to the controversial Prosecutor's office of Mrs. Renata Vesecká, then it is better to not even waste time...

It is, however, necessary to emphasize that no election and no parliament majority, nor any judge should have the power or right to dictate what is right or wrong without taking into consideration the will of the people. Here we find a tension between the function of the politician, who has to promote ideas and visions and the society's wishes. That's why judges are not much liked by politicians all around the world...

Democracy is, in that sense, an endless search for balance between needs and wishes, through which the old certainties from religion disappear, where boundless positivism remains aparent.

For the philosophy of Law and for social studies there is a huge question to be answered, as the Constitutional Court judge Holländer tells us on the Saturday issue of newspaper Lidové noviny ( "Are We All Really Positivists?"), what should we do for them to understand that the Law is more than just some declared and enforced norm. I personally believe that for a "large", "abstract" society from the modern West only the evolution theory a la Hayek (increase of rationality, freedom and efectivity helped by abstract rules and their changes) would work.

Metaphysics, including the Kantian type (and I certainly differ in that from judge Holländer) has been long dead, as Richard Rorty showed explendidly in his book Philosophy and the Mirror of Nature). Will the Law stay open, as a live process, enabling and guaranteeing freedom. The Law as the basis of democracy and not as "the people's will".


Obsah vydání | Sobota 10.12. 2016