An Open Letter To Judges

This post was written by Richard on August 16, 2011
Posted Under: Civil Liberties,Class,law

Dear Judges,

In 1748, the Baron of Montesquieu singled out the English political system as an exemplary form of protection of liberties, and the avoidance of corruption and despotism. He described in The Spirit of the Laws the separation between what we would now call the legislative, judiciary and executive powers.

His argument was extremely simple: that by any combination of these powers, the liberty of the subject would immediately be made null, because liberty depends on a stability of mind, and a predictability of outcome. This stability, he argues, is present when the branches are separate. However:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

Now, perhaps it’s sometime since you last learned of the political system – so let’s recap. In England currently, the three branches are represented as follows: the legislative power is made through the Houses of Parliament (mainly in Acts of Parliament). The executive force is the civil service (including the police). The Judiciary – now, that would be you.

However, the current actions of the legislative government has been to ‘advise’ the judiciary so strongly, as to essentially bring a conjunction between the legislative and judiciary powers. This means that “the life and liberty of the subject would be exposed to arbitrary control.” Further, Montesquieu adds this:

“The judges ought likewise to be of the same rank as the accused, or, in other words, his peers; to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour.”

For the last week, the courts have been overflowing not only with adminstrative paper work, but with class conflict. The rich are judging the poor, the privileged the disenfranchised, the powerful the weak. Those who have been scared and frightened by the rioting of the angry are now sitting in judgement and meting out punishment on those who frightened them. This is the source, surely, of the willingness to impose sentences of 6 months as a minimum for shop-lifting, for handling stolen goods worth an insignificant amount, and for the refusal of bail even in the most demanding of circumstances for the accused.

I am no great believer in the means of Liberalism, but I imagine many judges are. If the judiciary continues to be complicit in this new regime, then there is no liberty. I lay down the challenge for a judge to step forward and denounce what is occurring in the courts as I write.

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Reader Comments


Why don’t you email Larry Elliot at the Guardian as he is a justice of the peace

Written By Ales on August 16th, 2011 @ 10:36 am

I think the Dailymash sums the current ridiculous situation up best:

“Courts in riot-hit cities have been told to disregard the ‘sentencing rule book’ – or as some experts have called it, ‘the law’ – and imagine they are administering justice in the mid-14th Century.”

Written By Paul on August 16th, 2011 @ 5:10 pm

Michael, they backdated it to August 2010. It’s here:
The question is *why* this was done? It looks rather like cowardice, as this action removes the post from the ‘recent post’ list. The author was Jacob who has said some fairly disgusting things both during and after the riots. Is he backing off now?

A PDF of the page is here:

Written By Ralph on August 17th, 2011 @ 12:28 am

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