Governments and legislators should understand that they must ensure that judges become true scientists and that courts cease to be bureaucratic offices with an outdated courtroom.
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The judge is a human being. That being said, can we have confidence in the correctness of their decisions? The question is powerful, since its answer depends on the maintenance of one of the three pillars of our democratic system. However, this answer is not obvious.
We cannot either assert with superb blindness that yes, as certain judges claim in particular, nor answer forcefully no, as anyone who loses a trial usually says, when he loses it, of course. The only correct answer is that it depends, and there are good reasons for that.
Judges generally have to perform two tasks: to discover the reality of the facts and to carry out a correct interpretation and application of the laws, ensuring that in carrying out this work, fundamental rights are not violated. And one of those that must be particularly preserved is the right to an independent and impartial judge. They violate it every time their emotions, whether they have an emotional or ideological origin – ideology is basically another form of affection – influence them when it comes to judging.
One might think that the use of these emotions is a key human factor in being able to speak of “justice”, but the exact opposite is happening. Emotions modify the rationality of judgments and, in this way, although citizens who share these emotions will consider these sentences correct, in reality they are completely false.
This happens quite frequently, especially when an affair is publicized, but not only that. Furthermore, one of the main obstacles to judicial work lies in proof, both in its practice and in its evaluation. To discover reality, procedural laws have not designed over the centuries a laboratory-like scenario in which the judge, as a scientist, could investigate the facts. On the contrary, following an alarming evolution of ancient traditions, the laws are based on the principle that the memory of witnesses is – or can be – photographic, when in reality it has very poor performance, as is more than scientifically proven. .
Moreover, these same laws have assumed for millennia that judges have the supernatural power to know who is lying in these colorful pseudo-scientific farces called interrogations, which would be entertaining if they did not cause anxiety among many of those questioned and n They were ultimately not, a miserable waste of time.
But of course, even though people misremember and judges can’t tell who is lying, many think – wrongly – that how are we going to end the primary means of proof that has existed historically for millennia, even if it only serves to discover reality, but for lawyers to try to create, with their questions, an image of a witness or litigant that inspires the judge’s empathy towards the positions of this lawyer.
Faced with the deep insecurities offered by this horrible prospect, judges generally take refuge in expert testimony and especially in documents. The former have the problem that judges lack the technical knowledge to know whether an expert – doctor, biologist, engineer, etc. – has done a good job in their opinion, which too often leaves them blind. On the other hand, documents have the advantage of being able to at least provide a sentence on which to base the sentence, even if that sentence may be false, or may not make the slightest sense when looking at all the data from the case – the so-called indications – and which are generally left aside due to the complexity of their evaluation. With all this, obviously, it is difficult for the evidentiary conclusions of the judges to be correct, except in exceptional cases where they carry out the work of a true scientist, carefully examining these indications.
I insist, this sometimes happens, but this serious investigative work costs an enormous effort that we generally do not have the time to carry out, given that the courts are collapsed as they are. To fill all these gaps, judges frequently resort to rhetoric, just like lawyers and jurists in general. Faced with the lack of data to reconstruct reality – or the lack of patience or time to collect them – instead of sincerely declaring that these facts do not exist because they cannot be proven – this is what would be done any scientist –, too many judges, To simplify – excessively – the resolution of the case, they allow themselves to be carried away by a rapid prejudice about what really happened, a prejudice inspired by generally sociological circumstances .
This prejudice gives them a quickly formulated, but intuitive, idea of how events must have happened. And with this rushed and prejudiced story, they finally use their emotions to motivate the sentence in accordance with this prejudice, taking into consideration only certain data that results from the test selectively, in order to establish their initial idea, leaving aside everything which does not. serve to support this conclusion formulated at the beginning of the process, with rare data.
And all this to the great despair of many lawyers, who note that the judgment, in reality, does not take into consideration, even minimally, all their arguments. This doesn’t always happen, but unfortunately it happens too often. And the same thing sometimes happens with the work of interpreting laws. Instead of doing a scientific exercise that researches the different meanings of a norm that the legislator has thought of, with deputies and senators of Parliament visualizing the facts to which the future norm would apply, judges and lawyers turn their backs to this will of the legislator uses rhetoric, appealing above all, once again, to emotions, to make the law say, not what the legislator wanted to say, but what the judges or lawyers want at that moment -there.
It’s a trap we fall into too often. On the contrary, as we suggested previously, emotions are only an atavistic biological survival mechanism, but one which has a social relevance extraordinarily exaggerated by the literature especially, but not only. Either way, the problem is that emotions often lead to bad decisions, which is not surprising. An evolving mechanism that only serves to quickly detect imminent dangers cannot be used to make decisions that require slow thinking, such as a legal decision.
However, it is much more comfortable and simpler – and even more popular – to get carried away with them, avoiding this careful thought. And for that reason, all of this rhetoric in the writings of lawyers and judges, all of this verbiage in essence, is based on these emotions that are desperately appealed to. And that’s a shame, because a good judge is infinitely grateful when lawyers give him objective information, and good lawyers like to prepare cases by proposing them, without passion. Discourses based on rhetoric obviously do not constitute this type of information, even if judges sometimes also use the same method, notably in controversial decisions which only seek to distort the reality of the facts or what the laws say. All of this happened, fortunately not frequently. But it happens. Sometimes this hides a lack of diligence, notably in processes in which the judicial analysis has been superficial due to the accumulation of files.
Perhaps one day, governments and legislators will realize all of the above, and will finally understand that they must ensure that judges become true scientists, ensuring that courts cease to be bureaucratic offices with an outdated courtroom, which is already of little or no use. use, despite its popularity. Artificial intelligence will contribute – the day a government seriously decides and knows how – to drastically reduce outstanding problems. Perhaps then it will be the moment when the training of judges – today very defective – and the mechanics of the processes – which is medieval – will finally be reviewed, in order to guarantee that these trials become spaces of authentic science in this area. reality is verified and the mandates of the legislator, which are the mandates of citizens in a democracy, are correctly applied.
In the meantime, we will continue to wait pretending that everything is working correctly, while we all know deep down that justice, and partly law in general, works with its back turned to scientific developments in other areas of knowledge, which, he thought coldly, was dramatic.
It is our own lives that are involved in legal processes.
* Jordi Nieva is the author of, among other books, “The origin of justice” (Tirant Lo Blanc publishing house)
