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jueves, octubre 22, 2020

How Can a Jurist Maintain Dignity in the Pandemic?

by Julio Antonio Fernández Estrada

Jurists have a bad reputation. A good part of that notoriety comes from the constant and decades-long promotion by TV series and movies of a carnivore and ruthless version of the work carried out by those in the legal profession, especially lawyers.

To make things worse, the legal life we mostly see in Cuba is that of the United States, which creates in the Cuban population an image of jurists with attitudes that are sometimes alien to our legal system, not because we’re fairer, but because we’re different.

Law is a science, but it’s also a political and technical practice, which seems to be only about the moment when oral trials are staged, but which encompasses a lot more than that. It gathers more than two thousand years of learning, of text output about its institutions, of professional work by its specialists, of accumulation of experiences in forums and courts, which means that it also amasses a large history of justice and its opposite.

The image of jurists deciding over the lives of people in cold negotiations, brought to us above all by TV shows, where important lawyers from private American firms win cases and millions of dollars along with them, creates in the public the perception that jurists are bandits or vultures, though it’s a reality that there might be cheating, mischievous and immoral jurists anywhere, same as it happens with doctors, political leaders, sportspeople, artists or scientists.

The profession of those of us who study Law doesn’t make us more honest, or more just, or more fraudulent, or more heartless. It just so happens that in the world of Law it is legal, legitimate and necessary that killers be defended, that those caught red-handed have an impartial trial, that self-confessed offenders may be absolved, and that apparently won cases be lost on a procedural technicality.

The very existence of Law does not guarantee the presence of justice. Roman jurists in imperial times used to say that Law was the art of what’s good and fair, that Law should attempt to make men good, and not only by means of sanctions, but also by means of rewards, that justice was the constant will to give to each what is due them, that jurists should be treated as priests, and that the Law brought to the extreme of literal interpretation can sometimes be unjust.

For those reasons, those very jurists created equity, the justice of the specific case, that which in the hands of those who may interpret each case can help the least adequate law yield required and healing justice.

The very Roman magistrates who had jurisdictional authority, at the time in which judges were private citizens and not legal professionals, gradually established the practice of defending the weakest, of the presumption of good faith in cases of patrimonial nature, of benefits for debtors who already bear the burden of an obligation to comply. Therefore, Law was born at the base of our judicial system, to defend the needy and not to enrich those who already own all the wealth.

In Cuba the Law is written down, we do not accept custom as a source of law nor we allow judges to create legal precedent in the act of judging, so it is fundamental for judges to be independent, and for the prosecutors and magistrates tasked with interpreting the norms which only the people can legalize to exercise wisdom, sound judgment and ethics.

There’s no private practice of the legal profession here either, so the lawyers who must represent private individuals in litigations or other kinds of processes, must be hired by Collective Practices which work within the technical framework of the Ministry of Justice and are a non-governmental organization, and in which specialists in civil, penal, labor, administrative and family matters earn salaries thousands of times lower than those of their private firm counterparts almost everywhere.

The popular wisdom in Cuba is sometimes not that wise, like when it believes and repeats that every law has a loophole, or when it despairs faced with the horrible truth that everything here is forbidden, or when it believes that Cuban notaries line their pockets and are a band of thieves worse than those in One Thousand and One Nights, when in reality the Law in Cuba is written by the legislators in the National Assembly, and they have no way to cheat. Some things are just forbidden because of our self-censorship, and notaries are public officials with government-assigned salaries and significant possibilities of going to jail for the slightest mistake.

Cuban jurists, men and women of the Law, are as necessary in the Republic as equality, dignity, democracy and lemonade, all of these indispensable in my opinion.

In times of pandemic, contrary to what many believe and repeat –that what’s important isn’t norms or legality or the measures taken by the government–, Law is an urgent necessity to preserve the decency of society, tolerance, respect for our fellow people, solidarity –even if imposed–, peace, harmony, safety and the justice that appeases the demons stirred up by isolation.

Jurists know about legal norms, but they must be helped by the justice of the social system in behaving as agents of truth and equality, because otherwise they’d become gendarmes of corruption and arbitrariness.

Today I want to pay homage to my father, who taught me both the virtues and defects of Law. He used to say that one can spend life in ill health, fighting an ailment or a condition over a lifetime, but one cannot endure existence without justice.

For justice, the sun of our moral universe and the crystalline lake where we quench our civic thirst, we must sacrifice our peace and awaken the jurist within us all.