Lex Talion & El Juez Garzón

“…Eye for eye, tooth for tooth, hand for hand, foot for foot…”Exodus 21:22, Leviticus 24:17; Deuteronomy 19.16 vs “…whosoever shall smite thee on thy right cheek, turn to him the other also.” Matthew 5:38.

Not to get theological, but the upcoming trial of Judge Garzón in Spain reminds me of the difference between “justice” and “the rule of law.” “Justice” implies a concept of righteous retribution while on its face seems to be “mirroring”. The rule of law, on the other hand, is applied impartially and without the emotional lust for revenge sometimes seen in demands for “justice.” That is quite a significant difference. Some laws are designed to incorporate an element of mercy. It is my opinion that the 1977 law passed in Spain was designed for that element of mercy and to help establish the new democracy in Spain.

Do not misunderstand me. When injustice is done then there should be a remedy. However, when injustice is done on a grand scale and society as a whole suffers if retribution is demanded, then there may be circumstances that dictate an “amnesty” that should not be challenged. A good case in point is what happened after WWI when Germany was forced to pay onerous reparations to the winning allies. Those staggering reparations were, in part, responsible for the rise of Hitler.

I lived in Spain during the Franco years. Horrible crimes were committed by both sides in the Spanish Civil War. There are persistent facts and rumors that support the proposition that horrible crimes were committed during Franco’s time in power.

An old english saying is “Let sleeping dogs lie.” This may be the intent of the 1977 law. Don’t restart the conflict. Let it go. A good example in the USA was when President Johnson issued the Amnesty Proclaimation of May 29, 1865 in an attempt to end the post-civil war conflicts. http://www.civilwarinteractive.com/DocsJohnsonAmnesty.htm

Much like in a divorce, there comes a time when the animosity must stop and you must get on with your separate lives. However wrong and bitter it may have been. By attempting to prosecute decades-old crimes Judge Garzón is seeking justice but defying the rule of law. It will be interesting to see how this plays out in Spain.

The New York Times published an article in defense of Judge Garzón. http://www.nytimes.com/aponline/2010/04/07/world/AP-EU-Spain-Judge-Indicted.html Judge Garzón has undeniably established a stellar reputation as being unafraid of the powerful in pursuit of justice. Yet with success often comes arrogance. In this matter, I believe that Judge Garzón overstepped his powers as a jurist because those powers derive solely from the rule of law. Enforcement of the 1977 amnesty law is more important than resolute pursuit of justice. That is not a wrong position.

It disturbs me when the press asserts that jurists have a religious or political motive. The best jurists, in my opinion, are those who apply the law. It may not be “justice”, but it is the law. If a law happens to be unconstitutional, then it should be declared so by judges. If not, then the law must be applied. If a law is unjust then legislators, not judges, should change the law if it furthers the best interests of the people. “Activist” judges who decide on their own that a law is unfair or unjust and act accordingly are egotistical and arrogant and should not be judges. “Strict constructionist” judges are, in my opinion, the intent of the constitution.

The only real question in my mind is whether he should be prosecuted. He has already been suspended from his judicial position and if convicted will be removed from the bench for 10 to 20 years. It seems a dreadful shame for such an illustrious jurist to be put on the sidelines, but even the best of us sometimes fail.