The Judge as the Source of Justice!

The Judge as the Source of Justice!

For the past 20 to 30 years, the judicial system, and of course the "judge," has become a political battleground. On the one hand, this naturally arouses public interest; on the other hand, it leads to the loss of the institution's substance. Because the court cannot possibly be a part of politics. Our "Soviet past" is so heavy that sometimes we do not even know what "judge" means by its substance, rather than by its "title." Any political ideology recognizes that "we humans are what we are, and this 'what we are' needs something or someone who will decide which side is right in a specific case." This is not driven by whether "we are good people or bad people?!" For if we were only bad, we would not need a court, just as we would not if we were only good;

When searching through Georgian literature or rather our past, the main question we must ask about the court is the following: do we have anywhere any kind of legend, story, tradition, or anything similar where we, in Georgian culture, have a fictional hero in the form of a judge? It doesn't take much searching; the Georgian ethos has not invented, nor could it invent, such a hero. Why?! That is another issue, but unlike the clever hero (Natsarkekia) or the sacrificed hero (Zurab), we unfortunately do not have a "hero" who became one through judging. And yes, we actually do not even know "what a judge should be like." I make this introduction because I want us not only to see some things in reality but also to point out that we do not have a "judge hero" in our historical memory. Quite the opposite: when talking about the "Airplane Boys" (the correctness of their actions is a separate issue), the highest penalty was issued by a "judge"; just as the 1924 uprising was judged by a "judge"; just as decisions in "1937" were made by a judge, and one could talk endlessly about this. This pushes our recent historical memory towards the fact that upon hearing the word "judge," we are reminded not of "justice" but of "legality" (strict adherence to the law). And it is exactly here that we should desire to understand what "judge" means in its substantive part;

The first thing I always talk about (though I avoid discussing it publicly) is that a person should not look for a saint in a judge, just as they should not look for someone in a judge who will think for them. Furthermore, any judge is a child of our society, and yes, they possess exactly the same good and bad traits that characterize our society as a whole. I point this out because changes start from society and not the other way around. No one is trying, much less me, to justify or preach to anyone or anything (that is not my job, and may the dignity of a lawyer spare me from it), but the reality is not simply that "someone is bad and I am good." Therefore, I wanted to write this article on how a "judge can become a source of justice";

I have explained many times and will explain even more times, and I believe that the Constitution of Georgia is not and cannot be merely a book of principles. It is a metaphysical book, an agreement of citizens, which is directly and immediately acting law. It is precisely this book that indicates in Article 59.1: "The judicial branch is independent and is exercised by the Constitutional Court of Georgia and the common courts of Georgia." Independence implies the basis on which the court acts, while the answer regarding its exercise is given a little further down in Article 63.1: "A judge is independent in his/her activity and shall obey only the Constitution and the law." That is, the judge is always guided by the Constitution and the law. When I was a student, I thought this provision was of a "declarative" nature, but as time passes, I realize that not only is it not declarative, but it is the best provision the legislator could have made. Because the "law" and its purpose can sometimes fail to fully encompass existing social relations, the judge uses the Constitution directly and immediately; and the Constitution is so all-encompassing that it is impossible for it to be "unjust."

 In the Civil Code, we rarely encounter the word "justice" (fairness) or "injustice" (justice appears a total of 11 times, mostly as a means and not as a basis for the administration of justice; while injustice appears 3 times, also as a means of defense against injustice and not as a basis). At the same time, in the main provisions indicated in the Civil Code, on the one hand, the foundational basis of the judge's activity is stated:
a) Article 4.2. The court has no right to refuse the application of a law on the ground that it considers the norm of the law unjust or immoral.
On the other hand, this article is complemented by another provision of the same code, namely:
b) Article 5.2. If the application of an analogy of law is impossible, the relationship must be regulated on the basis of general principles of law, as well as in accordance with the requirements of justice, good faith, and morality (analogy of law).
That is, the law gives the judge the opportunity: if they could not use the analogy of law, then they should first use the general principles of law, where the goal is indicated as "requirements of justice, as well as good faith and morality.";

First of all, I will point out how legal theory looks at this. For example, it is considered that it is not the judge's business to evaluate the justice of the law (the judge's task is not to evaluate the justice or morality of the law. Even in a case where the law, in the judge's opinion, is unjust or incompatible with moral norms, they are obliged to apply this law). But on the other hand, theory itself indicates that if the law is "very" immoral, in such a case the judge has the right to appeal to the Constitutional Court (if the law is so unjust and immoral that its compliance with the fundamental rights provided by the Constitution is questionable, then the judge has the right to appeal to the Constitutional Court with a constitutional submission);

Legal theory mainly interprets what exists, but it finds it even more difficult (except in exceptional cases) to "endow a norm with the power of novelty, to derive new substance from a legal equation." In principle, this is not the fault of theory; it is rather a given, and that is why it is often difficult for us lawyers to "expand the boundaries of content, because jurisprudence is a static condition in the reality that we use what exists and not what we want to be." I point this out because expanding the content is, one might say, the main purpose of a judge.

As for the practical approach, i.e., judge-made law, here the court goes further and places the concept of justice within the principle of good faith. For example, decision on case No. as-1114-2020, date of adoption December 24, 2020, Tbilisi: In the modern Georgian legal space, good faith has turned into a material-legal norm and merged into a legal system based on justice and equality, thereby acquiring a broader significance. The principle of good faith in the legislation and doctrine of modern developed countries is largely linked to moral standards. Good faith means sincerity, justice, an honest attitude towards obligations. The main function of the principle of good faith is not the opposition of the interests of the participants in the relationship, but their solidarity, which is the basis of normal civil circulation. Unlike theory, "practice" introduces the concept of justice as a means that triggers the development of the fundamental principle of "good faith." Accordingly, practice largely recognizes justice not as a means but as a goal;

If the court uses good faith as a means for justice, then how does the court define injustice? In one of the cases, the court explained injustice precisely through justice: that is, an unjust result is one that is not just, and it also interpreted it as the opposite concept of good faith. Case No. as-23-18-2011, date of adoption May 24, 2011: "The main function of the principle of good faith is the occurrence of just results and, at the same time, the prevention of a clearly unjust result, thereby achieving the stability and firmness of civil relations";

"The function of the principle of good faith is the prevention of clearly unjust results, which is directly related to the stability and firmness of private legal relations." Accordingly, preventing an unjust result is necessary because, for the stability of public relations (where the state interferes the least), it is necessary that "justice is present" and the court does not allow injustice, which in turn threatens not only society but even the state itself. On the one hand, theory points out that "it is not the judge's business to search whether the law is just or not" and make a decision accordingly; on the other hand, "the court itself uses the idea of justice as a goal through good faith and tries to prevent a clearly unjust result(s)." This conflict between theory and practice is not new and I do not think it will ever be resolved, though I believe it probably should not be resolved. Conflict brings novelty; moreover, practical justice echoes the interests of society more than theory. For example, in one of the cases, the court explained that: "The function of the principle of good faith is the prevention of clearly unjust results, which is directly related to the stability and firmness of private legal relations." Accordingly, preventing an unjust result is necessary because, for the stability of public relations (where the state interferes the least), it is necessary that "justice is present" and the court does not allow injustice, which in turn threatens not only society but even the state itself;

To better explain how a "judge" can navigate this labyrinth, I will try to explain it with an example: When purchasing real estate, everyone knows that a real estate purchase agreement must be registered in the Public Registry (there was such a case in judicial practice) for property rights to arise. The basis for this is the same Civil Code, which states:
a) Article 183.1 is divided into two parts:
a.a.) To acquire a real estate item, the conclusion of the transaction in written form is necessary;
a.b.) The registration in the Public Registry of the acquirer of the property right defined by this transaction.
That is, the law bases the emergence of property rights on a written contract and the registration of this contract in the Public Registry. Additionally, in the same code, there is another article which states:
b) Article 323. A contract by which one party undertakes the obligation to transfer property of a real estate item to another or to acquire it requires a written form;

This article is found in the obligatory part, as opposed to the real (property) part (briefly explaining, in theory, the real part is considered more important than the obligatory part, which stems from the numerus clausus principle, because under the real part, for example, property rights pass from one party to another only as provided by law). Accordingly, the obligatory part does not mention registration, unlike the real part;

But as is typical for Georgian reality, the following occurred:
c) X and Y concluded a written agreement regarding the sale of real estate/an apartment;
c.a.) X is the seller, i.e., the owner, and Y is the buyer, i.e., the person who is to become the owner;
c.b.) X received the money from Y as stipulated by the agreement;
c.d.) But the agreement concluded between X and Y was not registered in the Public Registry;
c.e.) Y started living in the apartment, and X, years later, applied to the court demanding the recovery of the item from illegal possession because they were registered as the owner in the Public Registry (which is called eviction);
c.f.) The agreement that was concluded between the parties was presented in court, and Y demanded that based on this agreement, the disputed apartment be registered in their name in the Public Registry;

The issue to be decided by the court looked as follows:
In the Public Registry, X is indeed registered as the owner (that is, the second part of Article 183.1 is missing—the agreement is not registered in the Public Registry and Y is not registered as the owner, whereas the law specifies the fact of registration as a mandatory condition) and a written agreement with its performance is present (the preconditions of Article 323 are met). On the one hand, if the court followed Article 183.1, it would be legal (lawful); but on the other hand, if it did not follow Article 323, then it would be unjust, because the court had to interpret what the fact of "registration" should give rise to. In this case, the court found itself at the origin of that main question which is in the title: its decision in any variant would be legal, but would its decision be just? This is what had to be decided. Any court decision itself is presumed to be legal, but legality must also mean "justice." Legality is a means for justice, just like the law, but legality does not mean justice. Consequently, any court decision must be a source of "justice," which is achieved not by executing the law, but by interpreting the law to establish justice.

The dispute between X and Y ended with Y being satisfied, because Y's justice outweighed X's legality. Accordingly, that decision was "illegal" (in its narrow sense, because the requirements of the norm were not fulfilled) but it was "just," because the purchase took place. Consequently, that decision became a source of justice rather than just a legal given (it is, of course, open to debate how possible it was to register property rights without registration, but that is a subject for separate discussion).Even with this simple example, it is evident that the court can turn its decision into a source of justice derived from the law itself. Any decision by a judge must become a source of justice, i.e., a means of eradicating injustice, and not just something adopted according to the law; because if a decision does not serve the achievement of justice based on the law, it cannot be "legal" in its profound sense. Consequently, talking about the fact that a decision made by a judge must be legal does not change its substance, which goes further: a decision made on the basis of the law must be for the purpose of justice. Because the goal is for the judge to make a decision that is just and also legal. Otherwise, any decision made in that same communist era is legal, but is it just? That is, is a judge's decision regarding, for example, the death penalty just? The answer is unequivocally "No, it is not just";

Any court decision, i.e., a judge's decision, just as in the case I described, must become a source of justice—that is, the basis of the order that society needs. If society only needed legality, we would still have either a monarchy and/or communism today. Accordingly, a judge, by their purpose, their action, and the legal chord "the decision," by its highest basis, must be the "source of justice." This is exactly the substance of a judge, not just legality; mere legality without the goal of justice is the first step towards injustice;