Dictatorship in the Name of Legality?!

To tell the truth, I have wanted to write about this (or at least briefly explain it) for a long time, and when I finally found the time, it turned out that many might perceive this as an article written to fit the current context. However, I will try to explain "certain things" objectively, without any such context; though there is also the thought: "What is objectivity if not sincere subjectivity." Lawyers, and especially attorneys, are familiar with the "Bangalore Principles of Judicial Conduct." To explain it simply, these principles determine the purpose of judicial activity, the circle of actions a judge must observe so that, plainly speaking, "the judge judges." Commentaries on these principles, of course, exist and are diverse, but there is one quite interesting provision: "A judge must behave exemplarily even to the eye of an outside observer." And looking further: "Sometimes a judge, by the nature of the judicial office, may find themselves in a situation where their duty as a judge requires the application of a legal norm that contradicts the fundamental principles of human rights and human dignity. In such a situation, the judge should probably resign in order to avoid compromising the judicial duty related to the execution of the law.";

That is, on the one hand, a judge may find themselves in a situation where circumstances push them—despite the fact that they are a law-applier and not a lawmaker—to face a legal principle that does not conform to the principles provided by the Constitution. In such a case, the judge's independence is expressed not in the fact that they must necessarily apply the "law," but in refusing to "interpret the law" or simply resigning from their position. On the one hand, this is a very unusual phenomenon, and it is almost impossible for it to happen, but it is a necessary exceptional case that highlights something greater than the law can be: this is justice. As for the "fundamental principles of human rights and human dignity" themselves, these principles generally always find reflection in the Constitution. Moreover, the Constitution is not merely a play on words; it is more than an ordinary book of laws because: the Constitution is not morally neutral. A whole series of metaphysical elements of values are integrated into the text of the Constitution. The Constitution determines the scope of moral and value assessments upon which a judge decides specific cases (Giorgi Khubua, Interpretation Contra Legem, page 16);

On the one hand, the scale of the Constitution is greater than that of an ordinary law, and on the other hand, any right reinforced by the Constitution is first and foremost morally justified before becoming a constitutional norm. Because no single law is capable of outlining the boundaries of morality, the law mostly says "what is not allowed" as opposed to "what is allowed."
I emphasize the purpose of the judge and the Constitution because any existing system constantly requires a "judge" who acts in the name of the law. There are many examples, but let us take the following given:
Was the court operating in the Soviet Union, which had the right to issue death penalty decisions, legal or illegal? The answer is unambiguous: it was legal.
Was a judge in Nazi Germany, who acted under the racial discrimination law and established racial differences, legal or illegal? The answer is unambiguous: they were legal.
The same can be said about South African judges during the apartheid era; their actions were legal;

Now I must return to the issue. Of course, there are many differences between forms of government (especially harsh forms of government) such as: autocracy, authoritarianism, despotism, fascism, plutocracy, dictatorship, etc. Democracy naturally differs from these, and for a democratic system, it is necessary to have at least four conditions:
Legitimacy of the government;
Limitation of government by law;
Separation of powers;
Legitimacy of the opposition.
If any of these are missing in a state, it is not a democracy but some other system, and it inherently clashes with the metaphysical essence of the Constitution: the moral order by which the state is governed. In some cases, there is a term "the dictate of law"—that is, the law dictates to us what is right and what is wrong. In principle, this is a constantly accompanying process in a "state governed by the rule of law"; however, the "dictate of law" mostly serves the power of the "executive branch" "in order to execute the law." It is also ironic that this law is passed by the legislative branch itself, which has merged with the executive branch because the line between the executive and legislative branches has been erased. Consequently, a situation exists where: it takes what it wants and subsequently forces you to execute what has not been agreed upon with you in accordance with democratic principles;

The Constitution of Georgia recognizes the concept of a state governed by the rule of law; specifically, Article 4.1 of the Constitution states that "Georgia is a state governed by the rule of law." A legal state can be interpreted from many angles, but mostly I adhere to the classical interpretation, particularly the Kantian one:
The first element is the freedom of the members of society;
According to the second element, free citizens must equally obey the law;
The third element is equality.
I prefer a more philosophical interpretation than pointing to the rule of law, etc. The rule of law in principle means a legal state, but there is one "but," which the Constitution of Georgia also recognizes. Namely, Article 4.2 regarding the legal state: "The State recognizes and protects universally recognized human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the State are bound by these rights and freedoms as directly acting law." It seems the Constitution is not saying anything new other than what we have heard at least a thousand times, but this article also has a continuation: "The Constitution does not deny other universally recognized human rights and freedoms that are not explicitly mentioned herein, but which inherently stem from the principles of the Constitution";

This provision is an extremely interesting and excellent instrument for the individual, because, on the one hand, the Constitution sets boundaries, but on the other hand, it immediately indicates that the enclosed space is not absolute; it can be more than it was today or will be tomorrow. On the one hand, the Constitution of Georgia does not establish a hierarchy of rights (e.g., which is more important: freedom of labor or freedom of entrepreneurship); on the other hand, it indicates that there are other rights that are not explicitly spelled out here but "inherently" stem from the Constitution. Back in his time, and probably best of all, Ilia Chavchavadze wrote in his essay ("Equality before the law is the cornerstone of the proper structure of society") that "there is not a single enlightened state in the world where equality of all before the law does not serve as the core idea, the source of all legislation, of all jurisprudence." That is, the purpose of the law, as well as its enforceability, if re-evaluated, must be "rational and logical," because if these two things do not accompany it, it inevitably becomes an instrument in the hands of the executive branch, no matter if "angels or the like" are in power;

Since there is no scale of constitutional values, in each individual case, the judge themselves determine to which value recognized by the Constitution preference should be given. That is why, whenever the issue arises that the state is moving from democracy in any other direction—be it dictatorship, authoritarianism, or autocracy—the greatest importance is attached to the judge by these very laws. Because any law, whether civil or criminal, states that "the judge acts in accordance with the Constitution of Georgia and this law." This is not a simple or insignificant provision; it is the judge's obligation, if they see that "their decision does not coincide with their inner conviction," to follow not the dictate of the law but the "constitutional legal order, i.e., metaphysical morality." I do not think a judge will have to make this choice daily, because then "there would be no need for the law. An even more illustrative example can be North Korea, where the country is governed by legality. That is: by a law passed by the legislative body, if a crime is committed, not only the accused but also their family members are tried. Consequently, legality can also exist during dictatorial or autocratic regimes. And moreover: any such form of government never states its true desires directly, and mostly pedals on "legality" rather than justice, because justice is such a universal principle that if it is chosen, in most cases, "legal illegality" is evident;

Legality is true legality only when the following is protected: equality before the law. Meaning, if I committed a crime, I must be treated exactly the same way as another person would be treated if they committed the same crime; but mitigation must only be in my favor. That is: my personal characteristics must be used for mitigation because, as the great Ilia would say: By nature, the law is an equal duty, an equal right for all, and when it treats one equally and another differently, then it is nothing but an advantage created by law for one over the other. "Legality does not mean justice, and conversely, justice does not always mean legality." And if it is up to the judge to decide what is legality and what is justice, and during a conflict between them when their decision can have an impact—moreover, a multi-year impact—on both the court and the entire country: what should they do? Because any decision they make will be legal, as they will be guided by the law, but will it be just, or will the people perceive their decision as just?!

A judge must not protect inhuman laws that contradict prevailing views on justice and morality (Giorgi Khubua, Interpretation Contra Legem, page 16). Now, what an inhuman law might be is a separate issue, but "in exceptional cases, the judge must act against the law and in favor of justice." I am absolutely certain of this, because this is precisely why the Constitution allows that "the law, by the application of which the judge creates justice," is based on the fact that "the Constitution does not deny other universally recognized human rights and freedoms that are not explicitly mentioned herein, but which inherently stem from the principles of the Constitution."

In most cases, when the discussion turns to whether it is a dictatorship or an autocracy, such countries are governed by "legality" and not by "justice." Because if legality were the main thing, the Constitution itself would not have to acknowledge that there exist other principles which the Constitution itself does not "yet" know. That is why we ask: does the regime in North Korea operate legally? The answer is positive. Did communist, fascist, or apartheid judges act illegally? Of course, the answer is negative, and legality, yes, was protected; but was justice protected? True, this principle of the Constitution is also interpreted as implying procedural or other rights, and that only the Constitutional Court has the right to expand these principles. However, just as the phrase "pursuit of happiness" in the US Constitution was interpreted differently at different times, this principle is the "justice" that balances the "dictate of law," and we must look for it exactly here. Because, borrowing from Cicero: "We are born for justice, and that right is based, not upon men's opinions, but upon Nature."

And yes, lawyers are characterized by a static condition—to circumscribe what exists with existing law, unlike other professions. I believe we are in greater need of "philosopher judges" who legally interpret the law created by law in the name of justice. And finally, I will use Ilia again: "If this equality, this public right were trampled unpunished, then no one would even be able to stick their foot out the door, because the small would be consumed by the big, and the big by an even bigger one";