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Mainstream, Vol XLVIII, No 14, March 27, 2010

Political Economy of Judicial Precedent—Delay and Unaccountability

Saturday 27 March 2010, by K G Somasekharan Nair

Law courts in Britain, their Jonathan Brother America and some Eastern countries, believing White is right, are being overwhelmed by the weight of pending cases and the people despair over the despicable delay in the administration of justice. In accordance with the increase in population, they enhanced the number of prodigal courts, but when the number of courts was increasing in arithmetical progression, the number of pending cases increased in geometric progression. Now Western judges are groping for out-of-court remedies like bargaining and conciliation, the traditional duty of clergies and rural grandsires. While constituting pacificatory bodies for that purpose, they are admitting that the dictatorial system commanded by them failed to properly provide justice to the taxpayers and are declaring ironically that the body of principles recognised by the state in the administration of justice cannot be enforced in due course. Instead of conducting a mathe-matically rational probing into the reasons for such crumbling, they are compelling the political executive to have a separate head of account in budget allocation for the extravagance of extra-judicial bodies. In this context, it would be interesting to analyse the historical reasons generated by productive forces that caused the delay in the disposal of cases legally and such analysis may reveal that delayed justice is an ultimate product of the judicial precedent adopted by those countries in judicial adminis-tration.

The spiritual source of judicial precedent that evolved in Britain was Themis, the goddess of law and justice, a social fantasy of bucolic Greece, ignorant to declare one minus one is equal to zero and oblivious of iron and steel. They believed, their kings, head shepherds, while deciding an issue, had been possessed by Themis and the delirious speeches of kings were divine judgments; to dispose of a similar case later, the earlier judgment made by Themis was adopted as the yardstick for justice without conducting a new incantation for Themis. It was done on the ground that Themis was the goddess of justice as well as law, and her judgments were law as well. The material development of judicial precedent in Britain, like any other social phenomenon in any other society, was the resultant of productive forces, wars, religious coercions, goads of tradition and such other lively forces which acted on the society from various directions from time to time.

Britain, the exilic island for criminals in the Roman Empire till its waning in the 4th century AD, deported criminals mingled with autochthons and primitive societies were formed. In the 5th century, various Germanic tribes, Angle of South Denmark, Saxon of the Shelswig-Holstein territory and Jute of Juteland colonised Britain and it was the declining period of the slave-owning mode of production in Europe. All tribes and societies in Britain fought for generations to establish monopoly on land and the inspirited feud enabled the victorious to feudalise land tracts sufficient for their needs. The internal management of every feudal society was done by the gangster, and the most mighty among them became the feudal lord, the less mighty became vassals and the least became serfs. Thus might is right, established by the uncivilised feudal societies of Britain, became the motto of capitalism and its final form, imperialism. Thus the Anglo-Saxon civilisation of Angle and Saxon tribes was boisterous of gladiatorial combats, gang murder, and amputation, for which each feudal lord had enough armed serfs under knights.

In the meantime, a mission headed by St. Andrew deputed by Bishop Gregory of Rome, roamed, preached, baptised and organised churches in the early 7th century Britain.
Churches became the biggest feudal lords with the highest income; in addition every family was bound to pay tithe, a compulsory levy to the church at the rate of one-tenth of the income, and that enriched churches immensely. They maintained the military to fortify the duchy and conduct inquisition, excommunication and heresy burning festivals. They sermonised to the working class under servile subjugation loquaciously that the privilege and power of the elite were the manifestations of divine decree, and any protest against that will be heresy, the gravest sin condemnable to hell. To establish this, they quoted the biblical authority in the First Epistle of Peter (2-18,19). This was the religious and psychological substratum of feudalism, that ‘opium’ identified by Karl Marx, and for the working class it was worst than the caste system in ancient non-feudal India.

In the feudal mode of production, both mundane and spiritual lords were holding a vast area of land with a large number of subjected population. Feudal lords were stocky kings, capable of conducting judicial management of the manor by themselves. They acted as supreme judges for criminal cases and civil disputes arising within the fief, and enforced the judgment using their own armed militia. Their judgment was not based on judicious findings derived from any codified law or procedure, for there was no such thing—every judicial decision was an uttering on the spur of a moment. Feudal lordship was hereditary, sometimes the son applied the logic in the father’s judgment to decide similar cases; in the case of spiritual lords, the successor used his predecessor’s decision as the guideline for adjudging similar cases, and the continuance of this process for generations gave birth to judicial precedent, the only law of feudal Britain.

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In the 11th century, England was invaded by a William, the military commander of Normandy in north-west France, and his colonisation is known as the Norman conquest; thereafter a nominal kingdom was formed, but the sovereignty of the king was limited by incursive feudalists, and churches were also contumacies. Being kings, as a status symbol, Normans wanted the king’s court, however easy; but the difficulty was the enforcement of the kingly commanded laws as they were unable to withstand feudal onslaughts, possible to arise on the issue. So they decided to work out an arithmetic sum of all feudal laws practised by various lords, amounting to the law of the land, but the disintegrable anarchy of feudal propensity made conflicts between those law units. To bridge over that strait, kings deputed travelling judges to discover existing laws in feudatories, get the discrepancies rectified and reconciled all. For that purpose judges visited all feudal courts, heard cases and syncretised everything they witnessed, and that compiled mass of law is called Common Law. It was also called judge-made law; here the word ‘Judge’ did not indicate those judges who compiled common law, they were only discovers of existing laws, but the word ‘Judge’ represented feudal lords acting as judges who made laws out of emptiness. Both common law and case law are judge-made laws, but the difference is that the judges who made common law were feudal lords, but those who made case law were capitalistic judges.

In 1214, King John levied a scutage for his military campaign; then the feudal lords, war- lords also, organised and turned against the king for civil war, a usual practice in feudal Europe. At last the cornered king, to avoid a literal surrender, entered into an agreement with those lords, that he should not tax without their consent thenceforth. This perpetual agreement, sanctified by Bishop Stephen Langton, is known as Magna Carta, the foundation of the unwritten British Constitution. That document is also called the Great Charter, which transmuted British sovereignty on a partnership firm of monarchy, hierocracy and aristocracy with the transigent king as the managing partner. The most misunderstood, misinterpreted words ‘Magna Carta’ restricted financial management of the government by terrestrial and spiritual lords and thereby that peerage could control the whole government business. The British king, the executive head of the country, became the feudalist-in-chief among equals; however they were fierce totalitarians over colonial nations. In obedience to the bondage of Magna Carta, King Henry in 1256 summoned up a council of feudalists of both sectors to discuss the financial crisis due to crop failure. In pursuance of that council, King Edward in 1295 conducted a ‘Parliamentum’, meant talking together, of the peers to discus the business of the realm and thus the parliament emerged in Britain. Subsequently, a list of demands prepared by the bigoted puritans and approved by King William of Orange in 1689, called the Bill of Rights, mono-polised the right of the Crown for the Protestants; however it accepted the freedom of speech for knights and property owners in parliament—in the House of Commons it was meant only for those then.

In the endless material changes betided in society, common law courts representing a comparatively ancient society, became unable to solve the ever-new problems arising regularly and the aggrieved parties approached the king for redress. He, in consultation with the Lord Chancellor, his conscience-keeper, issued writes and thus equity laws evolved as the disposition of the kingly disposals.

Time went ahead sowing new socio-legal problems, especially with the socialised poverty and total criminality created by Black Death in 1348, together with the concentration of trade and commerce. Common law and equity law courts failed to solve everything and the parliament, leading the country from feudal anarchy to centralised governance, undertook the authority to fill the gaps in existing laws. Lords in the parlia-mentary House had borne judicial authority and legislative capacity simultaneously like Themis. They were the Supreme Judges for their feudatory individually, and the Apex Court for the kingdom collectively on the one hand; on the other, they were individual law-makers for their feudatory and as a collectivised body they became the ultimate legislature of the country. Hence the laws made by the parliament were not conflicting with the feudal precedents, but acted as supplementary or gap-fillers for those needed in changing circumstances and thus judgments made by the House of Lords continued to be law in the parliamentary period too. In this context, parliamentary enactments assented by the king, the decision of the British Sovereign, has no individual entity, apart from feudal precedents because a substance used to fill a gap in an object cannot have any use without that object and parliamentary statutes are not law for Britons but only a source of law. Under these circumstances ’law’ defined by Austian as the ’Command of Sovereign’ had been modified by Salmond adding judicial precedent to it. Anyhow, it is reasonable to continue the authority of judicial precedent over statutory law, till both temporal lords and spiritual lords, the ambassoders of feudal darkness, and the king, the representative of Middle Age pettiness, are continuing to decide the parliamentary wisdom of undemocratic Britain.

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Another reactionary principle, independent judiciary, was also a contribution of feudal Britain, where lords were haughty to deliver any sort of judgment and mighty to enforce it within their territorial jurisdiction; kings were depending upon the lords for money-material-military, till they could plunder Sonar Bangla in 1757. It may be remembered, Queen Elizabeth, who propelled English Renaissance, was selling her private property and utilising the service of buccaneers like John Hawkins and Francis Drake for subsistence, and such Crown weavers could not have any control over feudal mammonists—money is might and might is right for the West. Feudal judges, pony kings were independent of the Crown in the administration of justice and they were capable of keeping their wealth out of reach of the state. Those countries like America transplanted the shadow judiciary of feudal Britain together with judicial precedent and independent judiciary, cherished up an undemocratic judiciary, like a thread-free kite. There, judges placed themselves above nations, theorised they are privileged Mammons to keep their pelf unrevealed before the society feeding them, like the British feudalists.

In the British system, lawyers are the most advantageous group of judicial precedent and the independent judiciary, who produce tome bundles in the court-hall to show the number of precedents to establish their case and the impugning lawyer pushes tome trolley to refute it. In prolonged arguments quoting conflicting laws on the same point, lawyers do not apply the logic of sorites and syllogism at least, but everything is a blaring of defiance and retortion; at last the confused Judge, usually less intelligent than the lawyers, tosses secretly to give justice. In the British system, there is no legal criterion for justice, it varied from judge in accordance with individual susceptibility; so justice got reversed and reversed on appeals, while people suffered and suffered everything. For establishing and reversing the justice, lawyers at various levels conduct exhaustive talkathon, they determine fees at the rate of load of books produced before the lords and the number hours spending for vociferant ding-dong. The pilgrimage of lawyers through controversial case laws afforesting in voluminous books and journals is time-consuming and delay-making. Moreover, regular creation of expensive courts in the same station on the misconcept that increase in number of courts would alleviate the number of pending cases, compelled same efficient lawyers to appear in many courts at the same time; such lawyers applied for adjournment without relinquishing their engagement, to maintain reliability and income, but such adjournments increased the number of pending cases in all courts. Now judges, salary lords, declare their bureaucratic judiciary is inefficient for the purpose for which it was constituted, and they are coercing wearier litigants to approach waged intercessors, more unaccountable than them, for out-of-court judicial settlement. America has travelled much distance in that direction and formulated a ’rent-a-judge’ scheme parallel to their ’rent-a-girl’ culture and finally it would be an additional judiciary creating another burden for taxpayers—a medicine more dangerous than the disease.

It may be realised, the malignant growth of pending cases and inevitable delay is the curse of only those countries that admitted the feudal precedent of Britain in their unaccountable judicial system. Disintegrated mode of manual production is the characteristic of feudalism. In the absence of written law, precedent was the rule for administration of disintegrated feudal holdings and the despotic judiciary executed by the will of a single individual. Under capitalism, an advanced form of economy, where the mode of production is centralised as well as mechanised, smaller states were integrated and centralised to bigger nations. Hence the separated administration and judiciary are governed by statutory laws enacted by people’s sovereignty. The present judicial chaos is an outcome of assaults being made by the feudal precedent on statutory laws, that is, attacks made by feudal might on people’s will.

As history cannot be retraced, judicial precedent, an approved source of law, may be eradicated, statutory laws may be recognised and enforced as the only and ultimate law of the land; and concurrently the judicial system may be adapted and made accountable to the reconstituted people’s machinery. Otherwise no panacea can cure the aggravating judicial maladies, although this may not be acceptable to the intellectual detenues of feudal Briticism.

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