[Contribution to the Reimagining Society Project hosted by ZCommunications]
At a recent talk one of the participants in a lecture about the Venezuelan Justice System asked if it was necessary to be a lawyer to act on behalf of justice in any inter personal conflict.
My answer was negative. It is not indispensable for a person that imparts justice to be a lawyer.
In the remote past, the role of seeking justice in disputes was exercised by the chiefs of the clan, the priests and the kings, who decided cases brought to them by the parties involved. It was the Roman Republic, the creator of a legal order based mostly in the written law, who introduced the role of lawyer. To be a practicing lawyer meant to exercise a prestigious profession to which, for example, the famous Caius Julius Cesar dedicated the initiation of his political career, as he defended popular causes to captivate the sympathies of the roman people, using a valid instrument to facilitate the access to electoral posts through the centuriated comitia.
The lawyer as a role is linked to any judicial system based on laws, jurisprudence, and doctrine. Lawyers in such systems require formal knowledge and enough information to operate adequately in front of judges on behalf of the best defence of the interests of the parties in conflict. In strict technical terms, the practicing lawyer is an advocate who pursues a judgement of law in favour on his or her client independently of ideas about the actual justice of the case.
The meaning of this is that the highly trained lawyer will always be necessary to settle disputes in courts of law, because legal systems are continuously moving to be more prolific and complex.
Now, if the practicing lawyer is important for the functioning of the law, jurisprudence, and doctrine apparatus, with even more reasons his scholarly preparation and practical expertise is needed in the performance of the judiciary. The judge is the key figure of any judicial contest, and he has to know as much or more than the practicing lawyer who acts for the parties in conflict in the judicial process.
All this concerns to the so called formal justice that derives from the application of written law, jurisprudence, and doctrine, the execution of which, does not necessarily coincide – like we said before – with attaining actual Justice.
In parallel to formal legal systems, other ways to access justice exist in the social order. In all organizations that belong to the social web, daily decisions are taken to favour or not disputants not on the bases of written law or jurisprudence, but over immanent ideas of justice and even over common sense. We can think of various examples: in families, when the father or mother punishes or rewards a son or daughter; in companies, when a manager takes decisions that have good or bad consequences for subordinates, etc. Other criteria operate in such cases not founded on written law or jurisprudence, but instead on costumes and habits, traditions, discretionality, discipline, principles favouring the social weak (abandoned children, homeless), etc. All these situations have in common that they do not require a lawyer to decide conflicts. The guide is the intention to find a fair and equitable solution.
What we notice is that often the pursuit of Justice, whether attributive because it treats everyone according to his merits or distributive because it gives everyone according to her necessities, does not imply the requirement to be implemented by a lawyer.
Coming back to what we said at the beginning, and explaining it another way: for the traditional practicing lawyer, as in a capitalist society, the goal is to win the case which means that in gaining that goal the lawyer could achieve justice or maybe not, because resolving the case only involves the application of the formalities of the law which, at the same time, could deny, or not, the delivery of justice. Since the legal superstructure of capitalism favours the proprietors of the means of production, we will constantly see judicial decisions accurately apply the formal text of the law, but contradict the principles of Justice.
Now, as consequence of the class struggle constantly produced in capitalism, the working class, women, ethnic minorities, children and adolescents, etc., have conquered spaces in the capitalist superstructure, and the privileged classes have had to convey these spaces in order not to succumb and loose all power. In this manner social justice has progressed and this reality too requires the intervention of lawyers to pursue the application of formal law in ways making it coincide with the principles of liberty and equality. In the measure that social rights are enlarged, protected by law, and effectively executed, in that same measure, will be enlarged the capacities of the excluded, the exploited, and the weak, in order to become stronger and advance towards the creation of a society of equals, a society in which no human being can exist without the satisfaction of his necessities of nutrition, health, housing, education, culture, and recreation. In this sense, the lawyer, besides a social justice mechanic, can also be a catalyser of revolutionary social change in transit to socialism.
HOW DOES THE REVOLUTIONARY LAWYER ACT
"Wanting" and "doing" are intimately related attitudes, but are not the same. "Doing something" materializes the desire of "wanting to do that something". While "wanting to do" is an abstraction, "doing it" is a concretion. Our duty is to "want to do" and to "do it". We must theorize and act in a practical way to make the required revolutionary changes, taking into account that we have powerful enemies conspiring and working constantly, without rest, against this purpose.
The pursuit of revolution cannot stay only in theories, phrases, speeches, and symbols. Naturally, these are important but they are not enough. Whichever revolutionary theory is proclaimed, it needs a consequent behaviour from whoever pretends to be a revolutionary. It is indispensable, therefore, to exercise an attitude that transcends theory to attain revolutionary praxis.
The above explained disposition must reflect in lawyers in their citizen’s dimension, professional dimension, and ethical dimension.
THE CITIZEN DIMENSION
We have to be able to act as social beings, understanding that we have and exercise individual rights, but that our limit is the right of others and, also, that the addition of all these rights, geared one with the other, give form to society, and translate into social rights, the rights of all. If we assimilate this recognition, we shall start to act like social beings that have overcome the isolationism to which we were accustomed in capitalist society and in this new development of our personalities enjoy the role of social beings.
We have to make an effort to understand all this and change. We are branded with the old society based in individualism and selfishness, and it is necessary to correct this past and embrace the values of solidarity. And it is not that we have been indifferent to sentiments of solidarity, no, we have not. Even in the most fierce moments of ideological imposition of capitalist’s antivalues, human solidarity has existed, not only in our micro worlds, like the family, condominium, or baseball team, but also in other scenarios, for example, when we help an unknown person on a distant and lonely road, or when we send food and clothing to a far away country that has suffered a natural catastrophe.
Of course, we know that in the measure people ascend in the pyramid of social classes, there will be a bigger dose of individualism against a smaller one of solidarity. This phenomenon is caused, because those who sit in the vertex of the pyramid – always getting narrower – are the most ideologically alienated. As an example, in Venezuela’s case, among the sectors that are adverse to our revolution, high middle class people are the ones who protest against the social laws and social measures of the Bolivarian State, making a point that the revolution is "messing around" with "my television", "my children", "my school", "my supermarket", etc.
It is important to observe that ontologically, both tendencies inhabit the human being: selfishness and altruism or, what is the same, individualism and solidarity. The point is that the way social relations are organized whether in the production mode of capitalism or socialism, determines the contents and functions of the superstructure. This means that the judicial system of a given capitalist society acts to protect the relations that derive from the capitalist production mode; and similarly for capitalist ideology from which drifts the educational system and moral values that in the course of time projects into the collective imagination, having both the purpose to assemble and to encourage the ideas of each person according to which, for example, the goal of work is only profit with no considerations of social consequence, and also attention to the competence that is necessary to achieve local efficiency, but with no bother at all for the consequences that might derive as byproducts.
The capitalist ideology that gives privilege to the selfishness of the human being is actually observed, everyday, in the behaviour of all social classes. Naturally, in the less favoured ones it is rather mild, while it has complete expression in the economically privileged groups, those who take the lion’s share of the national product. These is why, the Venezuela oligarchy, placed in the highest part of the vertex of the social pyramid, objects to any negotiation of petroleum with special payment conditions with fellow latinamerican countries, instead – they say – of trading it with the developed northern countries. They speak with horror against the revolutionary government, because of the special payment conditions, crying out that the revolutionary government is "giving away our oil". For the oligarchy the government’s attention to economic justice is inconceivable, because their pattern of ideas do not allow them to express themselves in any other way. For them the real business is to sell oil for maximum cash dollar payments, some of which can be recycled among the population in order to have the common people going to the malls to buy the different goods they import and promote through the advertisement campaigns they make in the press, radio, and TV, all of which they also own. Something similar occurs in the US but following a pattern adapted to a superior degree of development: manufacturers migrate to a country where they exploit people with cheap salaries and create at home the illusion of low prices, nevertheless, only a small variation appears in prices while the companies magnify their earnings, all of which, in a relative short period, signified the indigestion of the financial system of United States and Europe, because banks were obligated to place the surplus money anywhere and with anyone, in order to cash in interest rates so they could pay benefits to owners and remunerate depositors. The thing was that the returns of the loans were not sufficiently backed up with a good payment capacity of the debtors. Liabilities were high and sooner or later the money making machine was going to stall and stop. When that happened and trouble spread like a virus from bank to bank, the US Government decided to refloat the loans by injecting directly to the financial institutions thousands of millions of dollars. The result is that thousands and probably millions of north americans are losing their homes but the banks are in operation again. Perhaps, it would have been better if the money was funnelled through the institutions to the debtors, allowing them to pay the mortgages and keep their houses. The result of refloating the banks would have occurred with no social loss, meanwhile, some very long and easy terms for payment conditions could have been worked out with the persons that belonged to the weak part of the chain, but the ideology of the capitalist system did not allow that to happen. It´s simple: something like that is not conceivable.
The aim for lawyers in their citizen’s dimension, is to understand and gain consciousness that we are social beings that interact with fellow citizens on equal terms, ("we are all born equal"), because we have the same biological necessities, we breath the same air and have the same capacity to generate similar sentiments and passions, the variation of which is more connected with the intensity than with the quality of them. If we assume this, automatically, we become better citizens. We shall take complete knowledge of the reasons we pay taxes, respect traffic signals, respect regulations for the construction of civil works, respect the environment, and there would not be any toleration for the existence of ghettos of excluded people, for example.
Having reached this goal of social development, citizens would act voluntarily and with elevated social conscience. With the pass of time, the coercive action of the state practically disappears. This, indeed is, a noble purpose.
THE PROFESSIONAL DIMENSION
But, what to do? How do we insert ourselves in the revolutionary process?
We have a professional tool of great value: we are lawyers, we know the law and the legal process. It is an advantage to have the knowledge of this universal discipline because regulations exist in all the spaces in society where the behaviour of human beings is rewarded or punished.
The quid of the question is: how to do it? What must differentiate us as revolutionary lawyers from the traditional practice of the liberal lawyer who responds to the ideology of the capitalist system?
In Venezuela we have a text that is a fundamental guide of our professional activity. It is the Bolivarian Constitution whose principles are markers of the course to follow in our choices as revolutionary lawyers.
Starting with article 2, and the statement of the fundamental premise for the national community: "Venezuela constitutes itself as a Democratic and Social State of Law and Justice, which holds as superior values of its legal order and actions those of life, liberty, justice, equality, solidarity, democracy, social responsibility…"
Why doesn’t it simply say – like the majority of constitutions – that we all have to submit to the legal order that sustains society, being this legal order formed by the constitution at the top, followed down the ladder by the laws, sub legal regulations, and administrative acts?
Why does it expressly determine that Venezuela is a State of Law and Justice? Is it not enough to say that it is a legal state ruled by the constitution and the law?
Well, the Venezuelan constituents, with an extraordinary capacity to comprehend the present and preview the future, understood the need to overcome liberal exaggerated positivism and also, of course, the traditionally accepted view that located the origin of the law in a natural order that -among other terrible things – justified the divine rights of the absolute kings, to recognize that the law has to be influenced by the criteria of justice, life, liberty, equality, solidarity, democracy. This is the meaning of the basic principles established in article 2 of the Bolivarian Constitution of Venezuela.
By the way, this is an interesting topic that should be debated and developed by scholars and researchers, to find out if there is a new natural order that does not arise from deities or superior beings but, instead, is originated by people in the millenary social course of time who have forged ideas that now are immanent and attached to the collective consciousness, and from there travel into the social conscience to provoke political changes or catalyze changes in the application of the law.
Lawyers operate in three well determinated areas: private practice for natural persons, corporation, unions, social groups and others, in the first place; secondly for public administration in any of its levels, and in the third place, for the judiciary as judges, district attorneys, and public defenders. In each one of those areas their performance has to be directly influenced by the principles of social justice, aiming at having justice rise above formal justice.
A revolutionary lawyer can not accept a private case that involves the eviction of a family from their home, because of a failure in the payment of the rent. A different situation would exist if the occupants of the house were committing crimes in it. In the first case, principles of social justice and solidarity do not allow the lawyer to take the case and activate the courts of law, no matter how high the fees are. In the second case, justice and social responsibility compel the lawyer to act diligently against the criminals. As another example, a union’s lawyer stands for the workers interests and can not accept money loans, gifts, or homage of any kind from the company.
The lawyer that sits in any public office has to understand the importance of his performance for the collectivity. For example, to process with diligence a license for the construction of a building in order to avoid negative consequences in the amount to invest because of the inflation rate and its later connection with the selling prices. The lawyer who acts as a public servant has to utilize considerations of solidarity and social justice to make decisions. As an example, when a small family company is going to be fined, its not only the magnitude of the fault to be considered but also the financial capacity of the company, because fines usually are not fixed, they have a scale that allows us to make choices, and this could also mean having no fine it at all.
The lawyer that becomes a judge has the delicate mission to make jurisdiction, this is to observe the particular facts brought to him to make them fit into the situation described in the law or in previous and reiterated cases (jurisprudence) in order to, in the ruling, grant the reason to one of the parties. To this lawyer, now turned into a judge, falls the need to transcend the role of operator of the law to be an operator of justice.
Venezuelan judges need to have imprinted in their intellect the principles of constitution article 2 that we have already quoted, but even more, also those of article 26, that reads:
"All persons have the right to access the organs comprising the justice system for the purpose of enforcing his or her rights and interests, including those of a collective or diffuse nature to the effective protection of the aforementioned and to obtained the corresponding prompt decision.
The State guarantees a justice that is free of charge, accessible, impartial, suitable, transparent, autonomous, independent, responsible, equitable and expeditious, without undue delays, superfluous formalities or useless reinstating."
They also have to follow the text of article 257 of the Bolivarian Constitution, which states:
"The procedure represents a fundamental instrument for the administration of justice. Procedural laws shall provide for the simplification, uniformity and efficiency of legal formalities, and shall adopt expeditious, oral and public procedures. Justice shall not be sacrificed because of the omission of non esencial formalities."
The Constitution of the Bolivarian Republic of Venezuela is precise when it establishes the lines that guide the activities of all judges at the moment they apply the law to impart justice.
Anyway, we want to stop here briefly to analyze the concept of "independence" contained in article 26. This constitutional rule says that justice has to be "accessible, impartial, suitable, transparent, autonomous, independent…" What did the constituent meant by using this last word? We observe that the statement refers to "independent justice" and not to an "independent judge". The difference is slender but clear enough.
The difference is thin because the matter is the independence of discernment of the judge at the moment to make his decisions, at the exact time he says which party won and which lost. But in no way, we have to interpret that the judge has to be a white sheet of paper, without political or philosophical opinions.
A judge – like any other citizen – is free to assume political and philosophical ideas and take a determinate position about life; what he cannot be is a partisan, an active member of a political party. But the indispensable condition is that making jurisdiction, when he connects the facts with the law, he does it in the solitude of his conscience and helped by the principles of social justice; also, without the interference of external factors, whether they are partisan, financial, criminal (blackmail or other), family, friends, etc.
If we want to go by the book, it is propitious to quote the Byzantine emperor, Justinian, whom in the Digest, said: "Justicia est constans et perpetua voluntas jus suum quique tribure", which means that justice is the constant and perpetual will to give everyone his wrights. A phrase that complements well with another quotation from the same compilation: "Just est ars boni et aequi", which says that justice is the art of the good and equitable. A judge that keeps between the boundaries of both Latin sentences will always be an adequate justice operator, because he will be applying the law with considerations of goodness and equity. Nowadays, to this we should, however, add the consideration of social justice.
THE ETHICS DIMENSION
The ethical performance of a revolutionary lawyer has to be different than the behaviour of lawyers that are not revolutionary.
We all have moral conscience. We know what’s good or bad and according to that we adopt an ethical pattern of conduct.
The capitalist mode of production generates an ideological platform that includes moral concepts and ethical applications, limiting what is possible to do, or even to think. This is why for a capitalist lawyer the free market is indispensable to determinate the prices of the goods and services, and competence is absolutely necessary for that purpose, no matter what, the market should be unregulated. Whatever use of the law that this lawyer makes to assure freedom of market is in the capitalist view morally correct and the actions he takes towards accomplishing this, are by definition ethical. As an example, if to increase the availability of real state for the purpose of constructing malls, a lawyer within a capitalist framework has to evict a whole neighbourhood, he will do so with no remorse at all, since his conduct adapts to the ethics imposed by the ideology of capitalism.
Naturally, concepts that are absolutely fundamental and unavoidable in the world of capitalist values, for the socialist view of society, are not. Some are abrogated, like the commercial treatment of food like merchandise, for example, and others become refined by applying the principles of social equality and solidarity. This is why for a revolutionary conception of the economy while exchange exists, the mechanism of free offer and demand (necessary in capitalism) is not indispensable to create prices, because the distributive justice that flows from the principles of equality and solidarity, allow a predermination of prices, accessible to consumers, with no reference to the size of offer and demand and probably based basically in the production cost structure, but taking into account that this last thing also could be of relative application because there are goods (like medicines) that need to be delivered free of charge.
The revolutionary lawyer has to transcend the ethics of capitalism. He operates in execution of the principles of solidarity against those of individualism and egoism. Also, he must comply with other universal principles of ethical behaviour, like honesty, responsibility, frugality, humbleness and authenticity in opposition to hypocrisy. If you can achieve that, you may call yourself a revolutionary.
It’s unthinkable that a lawyer can call himself a revolutionary while he constantly is animated to chase material wealth by practicing private law under the crude capitalist principles or by dishonest performance as a public official or a judge
It´s inconceivable a revolutionary lawyer that does not know humbleness and makes ostentation of the pomp he lives in or of the knowledge he has acquired, to brag about it and subdue other people.
It’s repulsive to find a lawyer self proclaimed as revolutionary, displaying incorrect use of the authority conveyed by whatever official post he has, dressed in costly fashion and speaking boldly about the millions of dollars he stashes in the bank. There is no frugality in such behaviour.
The revolutionary not only must be honest but also has to appear like an honest person. His appearance and attitude can not send wrong signals. Even more, he has to be an implacable persecutor of dishonesty.
About this last particular, The Liberator, Simon Bolivar, left us a legacy that is a clear example of the disposition to fight dishonesty. In a decree, dated January, 12th., 1824, in the city of Lima (actual capital of Perú), he said: "being alarmed by the many cases of corruption, it is established the capital penalty to any public official that in summary trial is convicted of embezzlement of public funds from ten pesos up, as also the judges with competence for this trials that did not proceed according to the decree, will receive the same punishment."
It´s not easy to be a revolutionary!
To a better understanding of this phrase, enough are the examples of Simon Bolivar, who delivered all his patrimony to the cause of liberation from the yoke of the Spanish empire. He forgot about home and family. For him, his family was the beloved South America and his moral patrimony, was independence and social justice. And, there is also the example of Bolivar’s teacher when he was a boy, Simon Rodriguez, who dedicated his life to popular education through all South America: he taught with many innovations, for a little income for the nutrition of his body but largely enriched his soul.
More recently, we have the model of Fidel Castro, by the way, a lawyer from Havana University, and of Lenin, also a lawyer, graduated in Russia’s Kazan University. What about Ernesto "Che" Guevara. Who of them can be accused of having a sybaritic way of life or of having robbed public funds? In Venezuela, we have the example of President, Hugo Chavez, a frugal man of monastic habits, who waived the possibility to have a private life to dedicate fourteen to sixteen working hours per day to the Venezuela ^p^pRevolution.
So, it’s not easy to be a revolutionary, but our goal must be to burden ourselves with that glorious condition. We all sympathize with the revolutionary processes; we feel the strong beating of our heart on the left side of the chest. We suffer for the weak and needy and embrace the romantic desire to be part of the solution. We rebel against injustice, and reject the northern imperialism and the grotesque exhibition of savage power it delivers everywhere in this planet. All this means that we have the potentiality to persevere and become revolutionaries.
Finally, as corollary, we want to quote a pair of phrases of that revolutionary whom we constantly bump into in history, literature, the movies and the myth that like the gentle spring breeze flows throughout the world. We refer to Ernesto Guevara de La Serna, widely known as El Che.
The first one says: "Let me tell you, with the risk of appearing ridiculous, that the revolutionary is guided by a profound sentiment of love."
We have no doubt of the truth that lays in this assertion. The basis of the orientation of all revolutionaries is the love towards his or her parents, sons, brothers and sisters, friends, neighbors, the old ones, the children, animals, plants and flowers, the poetry and the wind, the sea and the storm, dawn and sunset, heaven and the planets, the internal world and the universe They dedicate all their life to those common yet special things. These makes them different and, without being superior to anybody, better that many.
The second phrase does not need major explanations, and is expressed by El Che in the context of the answer to a letter he received from an Argentinean in which El Che was asked about the possibility of belonging to the same family, because the last name of the sender also was de La Serna. El Che said that he did not know if they were or not, but – he added – "if you tremble with indignation every moment that an injustice is committed in the world, then we are comrades."
Fernando Vegas Torrealba is a Supreme Court Judge in Venezuela
Caracas, July, 11th. 2009.