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Justice and Power

“The assumption of power can give it to you, whether you have it or not.”  Or, in Laurie Oakes’ more pithy translation: “You get power by exercising it.”

“Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.”   Blaise Pascal  

Power is not sufficient evidence of truth”     Samuel Johnson

     

Power is perhaps best illustrated when Lewis Carroll takes us down the rabbit hole to that other Tea Party, where Humpty Dumpty patronizingly explains to Alice that the meaning of words is simply determined by “who is to be master -, that is all” and the White Queen exhorts Alice to more effort and practice with, “we can be expected to dutifully believe six impossible things before breakfast”.  Alice yearns for “something to make sense around here” but finally concludes: “This is just a house of cards”.  

Nietzsche had already observed'All things are subject to interpretation; whichever interpretation prevails at a given time is a function of power and not truth',  but a hundred some years earlier Samuel Johnson had already advised that: Power is not sufficient evidence of truth”.

The word ‘democracy’ has its origins in the Greek language. It combines two shorter words: ‘demos’ meaning whole citizen and ‘kratos’ meaning power or rule of the people. Mutual respect, equality and equivalency (one = one) are the hallmarks of an authentic democratic society.  The social contract relies on Abraham Lincoln's aphorism: The government of the people, by the people and for the people.

Justice is achieved when citizens live in an environment in which all citizens are treated equally and accorded dignity and respect.

Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.

According to Robert French, “The judicial process is the ultimate determinant of interpretation of disputes”, giving the Courts the power of the final say.  Unfortunately some Judges believe this gives them the licence of Humpty Dumpty’s assertion to Alice that how we interpret things is informed by nothing other than “who is to be master, that is all”!

A rare insight from a politician:

“I want to… add my voice to those who see danger in judges who have forgotten the traditional and safe role of the judiciary in our society, and in legal developments which are wholly out of step with community needs and expectations.The danger from straying judges is very real, as ultimately their activities are undemocratic, and undermine the pivotal place of the law in civilised society. They invite disrespect of the law and its expositors, the judges themselves, and thereby contribute to a lessening of the authority of law as the final and accepted final arbiter of process, constitutionalism and conflict—the very characteristics that distinguish our society from the banana republics of the Zimbabwe variety.”Hon Hassell, B., AM, “The State of the Law’, 2004, Dinner Address, Proceedings of the Sixteenth Conference of The Samuel Griffith Society, Perth.  

The greatest danger is that some Judges no longer see themselves as arbiters between right and wrong, but as mere adjudicators of debating skills, or critics of theatrical rhetoric between skilled highly paid advocates. Judges should not be easy prey for eristic arguments, dark legal arts or the finery of the law.

There are multitudes of theories on the nature of power and the basis, sources and distribution of power.  Early societies believed all power derived from the gods, the sun or the earth and these had to be appeased by sacrifice if the tribe were to survive and prosper.  Poets spoke the language of the gods and so became early leaders.  Eventually power went to the last War Lord left standing. To legitimise their power,  War Lords became monarchs and claimed they too derived their power directly from a deity and in many civilizations leaders were considered demi-gods.   Early power struggles raged between Monarchs and the Pope*; the Spanish Inquisition demonstrating the Church’s absolute control over thought, however eventually the secularists won out because Martin Luther broke the monopoly of the Church and Henry VIII declared himself head of the English Church, seized all Church properties and hung rebellious Priests. It was the radical group the Anabaptists or Mennonites who believed in egalitarianism and a total separation of Church and State. Because they had no political power they were martyred in great numbers.

*The German King Henry IV trekked from Speyer to Canossa Castle in Emilia-Romagna, barefoot, wearing a hair shirt, to obtain the revocation of the excommunication imposed on him by the Pope Gregory VII. He was forced to humiliate himself on his knees waiting for three days and three nights before the entrance gate of the castle, while a blizzard raged in January 1077.

The first documented evidence of asserted people power exists in the Magna Carter as depicted in the chronicle of Melrose Abbey in 1215: 

a new state of things [has] begun in England; such a strange affair as had never before been heard; for the body wished to rule the head, and the people desired to be masters over the king.  

Nothing happened for 400 years as shown by King James I's belief in the divine right of kings; the idea that they have unlimited sovereign prerogatives as indicated by his speech to parliament on 21st of March 1610:

Kings are justly called Gods for that they exercise a manner or resemblance of divine power upon earth.  For if you will consider the attributes of God, you shall see how they agree in the person of a King.   God has the power to create and destroy; make or unmake at his pleasure;  to give life or send death; to judge all and to be judged, nor accountability to none; to raise low things and to make high things low at his pleasure. And the like power have Kings.

Henry IV of France called James I “the wisest fool of Christendom”.  When an eminent lawyer, Sir Edward Cook, suggested there were limitations to the King’s prerogatives,   he thundered “So then I am under the law.  It is treason to say that!”   Cook threw himself flat on all fours in terror and obeisance at the royal rage.  

Thirty years later Cromwell’s lawyers produced the first trial of a Head of State – that of Charles I. It traces the memorable career of John Cooke, the radical barrister and visionary social reformer who had the courage and intellect to devise a way to end the impunity of sovereigns. Geoffrey Robertson’s paper, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial has been published in the 2005 Cornell Law Journal (issue 3, Volume 38).  Unfortunately after the restoration of the monarchy, John Cooke was tried for treason and executed for his services to democracy.

Shakespeare has Lady MacBeth express her delusional supreme confidence in their untrammelled security;

 “ What need we fear who knows it, when none can call our power to account"?

Was Shakespeare attempting to caution King James?  Was it this inculcated delusional belief in absolute power that caused King James’ son Charles I to lose his head?

Other western monarchs too asserted the Divine Right of Absolute power and the only way to dissuade them was to detach their heads from their bodies which happened in England in 1648, France 1789, while Russia resorted to a firing squad in 1918. 

Nature abhors a vacuum, so with the decline of Absolute Monarchies, the Catholic Church renewed her claim to absolute power.  With its loss of moral credibility and authority, other institutions and corporations were queued up ready to take over the mantle including: the legal judicial cartel, media moguls, transnational mining companies, telecommunication industry....  Media moguls from, Lord Beaverbrook, William Randolph Hearst, Ted Turner, Michael Bloomberg,  Rupert Murdoch....all claimed influential power over people and governments.  America's democracy (Power by, for and of the People) has been hi-jacked by the Military Industrial Complex, Unions, the Mafia, the National Rifle Association, the legal/judicial cartel.....

The point about real power is that it does its own work, particularly among those who deal in power. Nobody in the power elite needs to be told … everybody understands; the fact of power is enough. If there’s a bull in the field, everybody steps carefully. The fear gives him access; the access gives him influence. Real power is passive.” -- Nick Davies, Hack Attack  on the vaunted power of the Murdoch press.

Lord Acton had papal infallibility in mind when writing to Bishop Mandell Creighton in 1887.

"I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it."

This caution appears to have gone unheeded and the Church is today facing a crises of moral credibility and loss of authority, legitimacy and influence due to its inadequate response to allegations of s*xual abuse.

Never mind other institutions were lined up to usurp the power of and from the people to claim world domination.  

Many early leaders followed the dictum that all power rose out of military prowess and later Mao’s theory that 
“all power comes out of the barrel of a gun”.  
Only in enlightened societies did the concept of power from and by the people (the governed) develop.  For 30 years, the Golden Age of Democracy reigned in Greece.  A full direct version of democracy flourished but was eventually undermined by the crisis of war.  

Democracy as a political model did not re-emerge until after the 17th C.  Its growth and spread was slow and tortuous. The Magna Charter of 1215 is an early step while John Locke in England and Jacques Rousseau in France developed foundation theories on the concept of a Social Contract; government by the consent of the governed.  The pendulum now swung behind the idea that “The pen is mightier than the sword” updated as “Can a word processor be more powerful than a nuclear warhead?”  Might is not necessarily right.

Hard power imposed from above is temporal, while soft power, inspirational power induced by the winning of hearts and minds can be more permanent.  When people are coerced into action they will do as they are told; no more, no less, however when people are thoroughly convinced, committed, fervent, inspired or full of conviction they will give their all for a cause, even the supreme sacrifice of their lives.   Hard and soft power can be combined into "smart power", as  Nietzsche articulated and Goebbels demonstrated.

 Power is elusive.  Power is mercurial. Power is ephemeral.  Power cannot be vested; real power has to be earned and deserved.  Real enduring power is associated with influence and authority; the more authoritarian, the less real authority.  Power that needs to act with force is not real power.There is not absolute power; every power has limitations. Even Julius Caesar was subject to the power of his wife and ultimately his colleagues.   You are a rooster one day and a feather duster the next.

"The assassins came, they always do, and they barely pause to knock. Power, we see, has its limits, and people tend to experience those limits in very quantifiable ways. One way is being forced to stow your own hubris in a cardboard box with your personal effects. Hand back the official phone. Hand back the security pass. – and It’s always too soon. In politics, people only ever believe they are just getting started. They are slaves to their addiction. Katherine Murphy – The Guardian on Peta Credlin  24/09/2015

You are lucky if the security guards  don't frog-march you out the door.

Power mongers suffer from the Ozymandias Syndrome:

`My name is Ozymandias, King of Kings:

 Look on my works, ye mighty, and despair!'

Nothing beside remains. Round the decay

Of that colossal wreck, boundless and bare,

The lone and level sands stretch far away".    Percy Bysshe Shelley

“The ends you serve that are selfish will take you no further than yourself  but the ends you serve that are for all, in common, will take you into eternity.”  Marcus Garvey

The Exercise of Power through Bullying

Bullying, much in the news of late, has been with us for thousands of years.  That it exists in a free democratic society should be of concern to us as it breeds and thrives in highly organized, autocratic and repressive cultures.  However even in the most democratic and liberal societies, there exist pockets or spheres of authoritarian mentalities where might overrules right. 

Bullying can be defined as the imposition of ideas, views or methods on others by pressure or brute force.  Bullying can be ruthless, direct and obvious or subtle and covert. It can be carried out by physical threat or by the potential of social, mental or emotional ridicule resulting in the isolation of the target.  Bullying occurs locally where power is concentrated in the hands of one person or in small groups of people, a cabal.  History records the evidence of successful bullying as exemplary in a tough world, though some leaders like Bismarck also knew how to appeal to people’s hearts and minds and Hitler used brute force but relied on the wiles of Goebbels to keep people on side.

The perpetrator of an aggressive intimidatory act is generally someone who holds a position of advantage or power over subordinates but lacks the leadership or people skills to competently or confidently exercise influence or control over them.  Lacking the ability to inspire people or sway opinion, the bully resorts to crude tactics that may involve veiled threats and brutal scathing put downs.  Failure to implement their policies in socially approved channels they either rant, rave, bluster or turn to clandestine means of undercutting their opponents influence by smear and character assassination. Invariably, bullies are incompetent or mediocre leaders, lacking in inspirational abilities, who compensate by blustering, posturing and bravado or underhanded machinations..

Bullying, like poverty is self-perpetuating. 

Judges hold special status in our society with inordinate vested power, but with that status comes an onerous responsibility; objectivity, impartiality and rational judgments that reflect the common good and are in the Public Interest.  Again, though Lord Acton had papal infallibility and the absolute powers of monarchs in mind when writing to Bishop Mandell Creighton in 1887, his warnings apply to all people invested with great power, including judges:

….Power tends to corrupt, and absolute power corrupts absolutely……   There is no worse heresy than the fact that the office sanctifies the holder of it."

Judges are not placed above the universally accepted principles of natural justice,  judicial fairness, and sound reason. On the contrary, partiality is a luxury any person in a position of power can ill afford.   Public faith, trust and confidence in our appointed officials provides a precious basis for a vibrant democracy and a harmonious, just and civil society.

Greg Barnes writes:

All too often judges are criticised for being pompous and out of touch with the community. While this accusation is grossly unfair, it is understandable.   Of course, if we insist on calling judges Your Honour and using ridiculously quaint expressions such as "If Your Honour pleases" in addressing a court, it's no wonder that the deification of the judiciary is alive and well in Australia today.”

Retired  Judge Dyson Heydon (Canadian born) has fired a parting salvo at his fellow High Court judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence.

In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled ''The enemy within'', published in the Law Quarterly Review.

''Stronger judicial personalities tend to push the weaker into submission,'' 'They stare out from their judgments with the superb elegance of noblemen in Renaissance portraits - utterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorifying in their self-perceived terribilita.''

Sometimes those judges exerted their influence even before oral argument began, in the judicial conferences that were held among the seven members of the bench to discuss the issues of each case.

''In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment - a closure by members of the court of their minds too early, before word of oral argument has been uttered,''

 ''Chief Justice Griffith spoke of the process by which 'arguments were torn to shreds before they were fully admitted to the mind'. Some counsel now think that they are torn to shreds before they have fully left counsel's mouth.''

Another Retired High Court Justice Michael Kirby recommended that protocols be developed to deal with judges who bully counsel or witnesses.

''In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,'' he said.

''A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.

''They have to be held to that, in my opinion, because if they're not, they're going  to go on [bullying others].''

If Airlines are grounded for breaching safety standards; doctors are suspended for breaching codes of practice,Priest are jailed for s*xual abuse, surely we can hold Honourable Justices to account for breaching universally accepted codes of impartiality and the abuse of power.  It is time for Tyrannicide; end the immunity of Judges.


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