Contra Legem, or Justice Above All

Contra Legem in its literal translation essentially means: against the rule of law. This principle is not new to the law and traces its roots back to Roman law; specifically, records of it are found in the 27th book of Justinian's Digest, which states: "That which has been established as law contrary to the meaning/essence of right, we cannot follow/obey as a legal rule." A judge obeys the law, but a judge is also granted the right to act contrary to the law. At first glance, this might cause astonishment, but without being endowed with this right, the judge is deprived of the authority which, if translated into Georgian, could be called "to administer justice" (which is the same as "The execution of true justice makes a dry tree bloom"). Justice is not a state; it is a continuous striving from injustice toward justice. Justice as an objective reality cannot exist permanently. Therefore, to put it more simply, defining justice is qualitatively impossible without understanding injustice. Thus, "injustice is that which is not justice," or "justice is that which is not injustice." Moreover, if "it is objectively impossible for the same justice to exist for everyone," because justice is not a public phenomenon but a personal one, the sword of Damocles for this principle is precisely its personification. This is when the individual—in the present case, the judge—is given the opportunity, through the life they have lived and social or cultural influences, to independently state that: true, the law exists, but this law does not deserve to be applied according to its presumed purpose and deserves an opposing interpretation, despite the fact that the judge is subordinate to the law;

"When the literal interpretation of a legal norm leads to an unjust result, the law enforcer is authorized to interpret the norm contra Legem, i.e., contrary to its literal meaning, and thereby protect the principle of justice. This is carried out not on the basis of the judge's subjective view, but within the framework of the active legal order and for the purpose of protecting it" (Decision on case No. 1/5326-19, Judge of the Tbilisi City Court, Elene Goguadze). According to Article 61.1 of the Constitution of Georgia, "A judge is independent in his/her activity and shall obey only the Constitution and the law." First of all, it is noteworthy that the legislator placed the Constitution, not the law, first in the book of supreme laws, and only then the law. It is a priori accepted that "all laws must conform to justice," but the endless streams of norms adopted by the parliament cannot possibly be free of gaps, errors, or inconsistencies with the Constitution. Accordingly, the judge acts on the basis of the law, but if, in their view, this law contradicts the "principles of the constitutional legal order," they are not only authorized but obliged to ensure "justice" derived not from the law, but from the constitutional legal order. This is to ensure that the individual's constitutional rights are not shaken by the state on the basis of the law, because the primary agreement between the state and the individual is the Constitution, not the law. It can be said that the law is a means of exercising constitutional rights, but under no circumstances a means that prevents the individual from exercising those rights.

At the same time, it is necessary to clarify that protecting this principle cannot justify "premeditated abuse of the law." Because the Contra Legem principle, on the contrary, protects the purpose of the law's content when an abused law turns into illegality. Moreover, this principle is more an echo of the judge's value system than the will of the legislator, because during such an interpretation it becomes clear what values the judge as an individual possesses regarding a specific fact to be evaluated, which is difficult for them to decide because legality consumes justice. "When a judge has to make an interpretation different from the text of the law, they may develop a feeling that by doing so they are 'opposing' the legal order—and this is not a natural and normal state for a jurist" (Khubua G., Interpretation Contra Legem, Journal "Methods of Law", No. 2, 2018);

Additionally, an interesting question might be whether a judge, if they use this principle, uses it as the will of the majority or for the minority, so that the dictate of the majority does not erase the line between the individual's right and the majority? Can a constitutional rebellion of a judge exist in a state governed by the rule of law if the norm to be applied by them initially leaves them facing injustice against the individual, and moreover, creates a feeling of such a "devouring" of the individual's right by the norm that has no justification? Let's take an example: a person filed a lawsuit for divorce, the court accepted the lawsuit into proceedings, but the person did not appear in court, and accordingly, a default judgment was issued against them. On the one hand, the Civil Procedure Code states that filing between the same parties on the same subject and the same grounds is inadmissible; on the other hand, a person cannot be forced to stay in a marriage! That is, can the person re-apply to the court in order not to be in a forced marriage if there is already a court decision refusing the divorce? (A second variation here could be pointing out that they decided to divorce again after the decision was made, i.e., a new ground for divorce emerged). If the judge interprets the law according to the letter of the law, the person will remain in a forced marriage. But if they accept the person's lawsuit, they will protect the individual's constitutional right not to be in a forced marriage, because the right to marry also includes the right to divorce. Consequently, contrary to the literal interpretation of the law, despite the law, such a rebellion by the judge against the law is absolutely justified if by doing so they expand "the right of the individual." In other words, "the judge must make a decision by means of legal arguments" (Khubua G., Interpretation Contra Legem, Journal "Methods of Law", No. 2, 2018);

It is possible that Contra Legem will also be applied where social relations change in such a way that it is necessary for the court to impart a different character to a norm. That is, when norms established in society upon which there is a "broad public consensus" are not yet reflected in legislation but require a reaction from the court to ensure their confirmation as a reality. Another example can be considered: there is a vindication lawsuit (reclaiming real estate from illegal possession). In such a case, if a person files a lawsuit, but subsequently a default judgment is issued against them, does the person have the right to re-apply? (Here too, a variation is possible, that after the court decision they had a second new claim, i.e., the grounds changed). But if the court refuses to accept the lawsuit, it will thereby extinguish the plaintiff's right to property, and accordingly, a literal interpretation of the norm will result in injustice, because the right to property is a "constitutional right" that cannot be restricted by law, as such a restriction would cause a clearly unjust outcome;

A controversial issue is, for example: if a person first disputes the invalidity of a purchase agreement, and subsequently disputes the payment of the purchase price on the same agreement—can they do so? On the one hand, the grounds are changing, but on the other hand, the decision made has already entered into legal force and is based on that agreement, i.e., it is a part of it. Accordingly, if the court accepts such a lawsuit, will it not violate the law for the defendant, since they already disputed and the lawsuit against them was not satisfied? It is the controversial nature of the issue that distinguishes this principle, which is such a powerful weapon in the hands of the judge that its use may force the legislator to yield the role of lawmaker to them, i.e., to the law enforcer (confusing these two concepts mostly leads to dictatorship or autocracy, whereas democracy causes legal competition among the branches of government so that the individual is considered the center of the state). To go further: if the death penalty is introduced as a norm, or if, for example, the parliament bans freedom of speech for all media and leaves only the Public Broadcaster, criminalizing media activities, would it be just for a judge, when presiding over such a case in court, to punish a person for using an information medium, or to apply the death penalty?

The issue can be seen differently: if the court does not use this method, it can be said that its independence is questioned (we are not talking about its everyday use, but its use when necessary). And when the court does use it, this can be a direct indicator that the court is genuinely independent of the other branches of government. Law and its professions are a static condition. That is, unlike politicians, legal professionals use what exists and cannot use what does not exist, while politicians constantly focus on the non-existent future and interpret it. At the same time, the only one who steps out of this static condition and becomes a "political jurist" in its best manifestation is the judge: when they bring the content of a norm closer to justice and do not settle for what exists, because ensuring the constitutional legal order is important to them;

In a civil case, the Supreme Court explained that: "The Cassation Chamber indicates that in the case of a Contra Legem interpretation, there is a conflict between different goals of a norm. The legal order must be fair. The Contra Legem interpretation gives priority to the law that stems from the constitutional legal order and ensures the correct, fair resolution of a specific relationship. Finding this 'law' and realizing it in specific decisions is the function of justice. The Contra Legem interpretation can be applied not by an 'ordinary' law enforcer, but only by a judge. The judge must act not on the basis of subjective views of justice, but solely within the framework of the active legal order, according to the values underlying the legal system." (Decision No. as-559-2019). (Such an explanation by the Supreme Court of Georgia is not found in criminal or administrative cases). True, a judge always decides one case and thereby gives an answer only on that case, but the decision made by the judge cannot and will not be of a one-time nature. For through their own decision, with their own arguments, they also answer society about what they think as a social phenomenon in society. Accordingly, any kind of decision by a judge is an echo directed not only at specific persons but at all individuals in general, if the case of those individuals is also to be reviewed by them.

Despite any norm of the law, there exists a higher value than the law can be, but there is no written value greater than the Constitution. Accordingly, if the Constitution is based on justice, and justice is the main thing in a legal state, this legitimate right granted to the judge deserves not just existence but repeated application. For otherwise, we would not need a judge whose duty is to administer justice (and not legality). And one can talk endlessly about Contra Legem; only a small part is indicated here;