My clients often ask me, "Where is the justice?! What, won't the judge understand that I'm right?!" And I answer - legal theory states that there is no absolute justice in a trial, there is "legal justice." Sometimes I add - sometimes in jest and sometimes after a result that doesn't seem to me to be anything other than a jest - "And even that is barely.".
These days we are engaged in soul-searching. Each one has his own account. We ask for mercy and forgiveness and hope that these will prevail over justice, over the measure of justice, in our own trial.
Is that abstract term - "justice" - something that we mortals can boast of?! Is "justice" absolute among us mortals?! Does "justice" exist in law?!
Legal theories have been dealing with this complex issue for many years. We will try to take a brief look at this broad issue.
Article 6 of the Basic Law on the Judiciary, which is the declaration of allegiance of a judge, states:
"Anyone appointed as a judge shall make a declaration of allegiance before the President of the State; and these are the words of the declaration: "I undertake to maintain allegiance to the State of Israel and its laws... and to administer justice fairly, not to pervert justice and not to show partiality.".
What is the meaning of that statement, which includes the words "to judge a just judgment," when the meaning of that "just judgment" is not something defined?!
Distinction between procedural justice and substantive justice
The law tends to distinguish between procedural justice and substantive justice. That is, the first question is: Was the legal process fair? - Procedural justice.
And the second: Was the outcome of the trial just? - Substantive justice.
In a sidebar, we will note, and refer to previous columns in which we dealt with various issues of arbitration, especially those dealing with the annulment of an arbitrator's award, that the process of examining an arbitrator's award, when its annulment is examined, does not include a substantive examination - substantive justice, unlike an appeal, but rather an examination of procedural justice.
Hedatory justice
Procedural justice focuses on the procedure, that is, the extent to which the litigant received a fair trial. And from the general to the individual - the extent to which the litigants were treated equally; conducting the trial according to the rules of procedure - the rules of the game; presenting evidence according to the laws of evidence; impartiality; absence of conflict of interest - neutrality - of the judge; hearing the parties' arguments; and more.
Substantive justice
How fair is the legal decision?.
Inherently, a legal process is based on law. Hence, the meaning of justice is in the eyes of the law. That is, how "just" the judicial decision is in the eyes of the law.
This issue is complex in itself, since the judge is subject to the law and only the law, and who among us would argue that the law - any law - is "just"? To what extent is a law influenced by various factors when it is enacted? Can a law - a human creation - be considered absolute justice? Does every law contain justice? Is the justice of one the justice of another? And many more philosophical issues that this is not the place to dwell on.
However, there are other aspects of the trial besides the law that can be addressed during a legal hearing. For example: the focus on investigating the truth; whether the legal outcome is consistent with the facts or is it disconnected from them; and more.
The fruit of the poisoned tree
In the American legal system, there is a legal doctrine known as "the fruit of the poisoned tree." That is, if evidence was obtained during a crime, this evidence is inadmissible and cannot be relied upon, even if it is clear that it is true and even if it is clear that it could change the picture by one hundred and eighty degrees.
This doctrine nicely illustrates the distinction between "justice" and "legal justice.".
Distinction between criminal and civil law
In order to convict a person in a criminal case, it is customary to say that the judge - or jury in methods in which the outcome of the proceedings is determined by juries - needs a certainty of 99% that the convicted person is guilty, while in the civil aspect it is customary to say that the judge - or jury - needs a certainty of 51%.
A case that illustrates the implications of this distinction for "legal justice" can be seen in the well-known case of the "murder" of the wife of a famous American football player named Augie Simpson. The same Augie Simpson was acquitted of murdering his wife in criminal law, but is liable for compensation in civil law. From this it can be said, was there murder here or not? Did he commit murder? How can it be that in criminal law he is not a murderer and in civil law he is?
The answer is - in civil law, legal justice led to his conviction, while in criminal law, legal justice led to his acquittal.
Say from now on, justice is justice you will pursue and strive for. But know that your power and abilities are limited. By virtue of being human, you are never free from mistakes and your thinking is always subjective. Recognize these limitations. The more you recognize and internalize them, the more likely you are to come closer to me, justice, both in law and in everyday life.
We wish everyone a happy new year, a happy ending, that mercy will prevail over law, and that whenever we need a trial, "legal justice" will be done to us.
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