The speculations and arguments about who will try Saddam Hussain still continue. But why?
Should the outcome of any trial depend on the composition of a court or the personalities of the judges? — This question is at the very roots of judicial process. So, let us try to answer it.
The essence of criminal justice is that certain acts are defined as crimes — that is acts, commission of which is punished by a government as part of the exercise of government duties. Usually it is acts which are harmful for individuals, groups or Mankind as a whole.
An example of such acts is deliberate killing of a person without valid reason, which is known as the crime of “murder”.
Thus, if A kills B, and it is proved that:
then A has murdered B and should be punished for the crime of murder.
So, what is the function of a court of law in deciding such case?
The function of a court of law is to establish that items (1), (2), and (3) are indeed present in the case. And as the presence of items:
in one case at the same time constitutes the crime of murder, the court should find A guilty of murder and thus subject to whatever punishment for such crime as prescribed by the laws in force.
Items (1), (2), and (3) above are issues of fact. The proposition, that the presence of all the three above items in one case constitutes the crime of murder, is an issue of law.
Do issues of fact and law depend of the composition of the court or the personalities of the judges?
The issues of fact depend only on the evidence available to the court, and issues of law depend on the laws currently in force within the jurisdiction of the court.
The judges are just people whose duty it is to evaluate the evidence presented to the court and on the basis of it to determine whether this evidence is sufficient proof of the facts alleged by those who brought the case before the court.
The evidence available to the court does not depend on the personalities of the judges, for that reason the courts decision on the issues of fact cannot and should not depend on the personalities of the judges.
Laws are based on principles. These principles can be clearly defined and written down, or they can be assumed to be the basis of judicial reasoning and expected to be followed by the judges. But, in either case, they do not depend on the personality of the judges. It is the duty of the judges to apply these independent‐of‐the‐judges principles to the facts of the case.
Thus the judicial process is like counting apples:
|The issue of law to be decided:|
How many apples have A and B together?
A and B together have 3 apples.
Would the number of apples in this case depend on the personalities of A or B, or on the personality of the judge considering his case?
“But this is child's play”, some would say, “Real legal cases can't be that simple!”
Some legal cases can be just as simple as that:
|The issue of law to be decided:|
Is A guilty of murdering B?
A is guilty of murdering B.
The above case was simple, because the accused admitted the facts. Cases, where the accused denies the accusations, and the accuser seeks to prove the guilt of the accused by evidence, would have more points of fact than in the above case. But the principles of operation are the same:
And none of this depends or should depend on the personalities of the parties or the judges.
So, why is it so important who the judges will be?
And, if the personalities of the judges are important, then can there be justice?