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law

jurist

How Can a Jurist Maintain Dignity in the Pandemic?

por Consejo Editorial 13 junio 2020
escrito por Consejo Editorial

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.

Translated from the original

13 junio 2020 0 comentario 495 vistas
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relativity

Our theory of relativity

por Alina Bárbara López Hernández 14 diciembre 2019
escrito por Alina Bárbara López Hernández

The United Nations was founded in 1945 as part of the system of organizations and treaties that emerged after the Second World War. In that same year, and spanning part of the next, the trials of Nazi war criminals were held in the German city of Nuremberg.

Although the crimes against the Jewish population were known, their magnitude could only be demonstrated after the war. The material evidence obtained at the terrible extermination camps, in addition to the testimonies of survivors, allowed the world to describe those events then and forever as a holocaust.

In the statements by the accused and their attorneys at the international court which carried out the proceedings, the argument was presented once and again —in an attempt to justify what happened— that they acted in strict compliance of German Law.

Indeed, between 1933 and 1939, Adolf Hitler’s government had passed extensive anti-Hebrew legislation made up by more than 400 government decrees and regulations that wove a discriminatory network from the municipal to the national level.

No aberrant decision was made without its corresponding legal protection. Separate zones of residence, the obligation to identify themselves with the Star of David, the confiscation of property, the prohibition of marrying non-Hebrews, the removals from the faculties of universities and schools, the exclusion from the civil service at all levels, the mandatory sterilization, the transfer to concentration camps…

The argument of having obeyed the Law as a justification for the crimes was not accepted by the international court at Nuremberg. It contended that no particular legislation could infringe on the inherent human rights of people, which were considered to be universal.

As a result of these debates, on December 10, 1948, exactly 71 years ago, at the third UN General Assembly, the Universal Declaration of Human Rights (UDHR) was approved.

Cuba was a founding member of the UN Human Rights Commission and a signatory state of the UDHR. The negotiations corresponded to the administration of Ramón Grau, who subscribed the document.

The UDHR is a historical landmark. It was written by representatives of all regions of the world, with diverse legal and cultural backgrounds. The text is inspired by the 1789 Declaration of the Rights of Man and of the Citizen. It is proclaimed as a common, universal ideal, for which all peoples and nations should strive, so that both individuals and institutions may promote it by means of teaching, education and respect. They are fundamental rights, with such a universal nature that they must be protected worldwide.

It was approved with no votes against at the UN General Assembly. Only eight countries abstained: South Africa, which by then was beginning to apply the segregationist policy of apartheid; Saudi Arabia, where slavery was legal; and the countries that were starting to form the socialist bloc: Belarus, Poland, Czechoslovakia, Ukraine, the Soviet Union and Yugoslavia.[1]

This being a widely known historical event, it was decidedly poorly explained on a recent special program in Cuban television. It was broadcast last November 7, on the occasion of the voting on the Resolution against the US blockade of Cuba, and presenter Humberto López, who, incidentally, graduated from Law school, stated that ‘human rights are a cultural construction’. The communicator argued that they don’t mean the same in China or other countries, as they do in Cuba.

This profoundly relativistic attitude has deep roots in anthropological science, specifically in the points of view of the American school of historical ethnology, or historical particularism, whose leading figure was Franz Boas (1858-1942).

This also happened in other sciences, like Philosophy, Sociology and History, for example. After the crumbling of real socialism, that perspective was reinforced as part of the postmodern wave. It would transmit to science an agnostic attitude and would deny traditional sources.

For Social Anthropology, however, historical particularism was positive. Boas, rejecting the ethnocentricity of previous anthropological schools of thought, denied the existence of world levels in cultural development. He believed that, in order to reconstruct the history of humanity, one had to begin by separately studying the history of each people. In his opinion, each culture was the unique result of a set of factors and exclusive conditions which could only be understood on the basis of their own rules.

These theses equally promoted a trend that took the fundamental propositions of particularism to their extreme. This was called Cultural Relativism. The two statements at its core are: ‘All cultural systems are inherently equal in value’ and ‘any cultural model is inherently as deserving of respect as the others’.

The advocates of the relativistic trend state that all criteria for the evaluation of a culture are relative, since they originate in the members of other cultures. There are no values or customs which are bad or good, better or worse, inferior or superior, only different. Such a stance, though it rejects ethnocentricity and cultural imperialism, has caused damage in the assessment of topics related to the universal rights of human beings.

If one assumes a relativistic stance, it would be impossible to criticize cultural practices such as female genital mutilation, which causes thousands of deaths and health complications every year; or selective infanticide, among other cultural traditions which infringe human rights, such as the right to life, reproductive freedom, etc.

When applied to political practice, this perspective would justify decisions that breach rights, such as the one restricting freedom of movement, just to mention a controversial example in Cuba-US relations. The North would not be able to criticize Cuba for preventing selected individuals from travelling abroad, while the island would be unable to complain that the US government forbids its citizens from freely travelling there as tourists.

If we continue down this path, we would prove that the debate between the universal character of human rights and the relativistic stance does not resist serious analysis, although we must equally stress that no nation can invoke the UDHR to intervene in another’s affairs using their non-observance of it as a pretext. However, international bodies have the function of accompanying and insisting on the observance of these principles, in any culture and in any system.

[1] Ukraine and Belarus had seats at the UN at the time as a result of initial negotiations, even though they were part of the USSR.

(Translated from the original)

14 diciembre 2019 1 comentario 676 vistas
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passiveness

Passiveness and silence

por Giordan Rodríguez Milanés 30 noviembre 2019
escrito por Giordan Rodríguez Milanés

On the evening of Saturday, November 24, at the ‘Céspedes’ Square in Manzanillo, there was a celebration of the 87th anniversary of the first radio broadcast in this city with a –so-called– ‘political-cultural’ gala. In a context marked by food stalls, music and activities for children, about fifty radio producers, journalists, writers and musicians were at the square, along with the First Secretary of the Communist Party, the President of the local government, the representatives of the ICRT (the Cuban Institute of Radio and Television) in the municipality and the province, and several other officials. In front of all, there was the Flag of the Lone Star; a large National Flag hanging horizontally from a balcony, with the red triangle on the wrong side –that is, to the right of the observer–, in clear violation of the National Symbols Law passed less than a year ago.

Apparently, nobody paid attention to the blunder. Nobody, except for a couple of writers from another city who were rushing to get to an activity of the AHS (a Cuban young artists association). They asked who had displayed the flag like that, but the workers at the food stalls who sold snacks and drinks right under it didn’t know. The writers weren’t aware either that the main people responsible for the observation and enforcement of the law in Manzanillo were only a few yards away. They probably didn’t even know them.  The writers took a photo, sent it to me, and yours truly published it with a note in my Facebook wall and in the group AMIGOS DE CUBADEBATE.

I will not proceed to questioning how so many people who are supposedly committed to respecting national symbols could overlook such a gaffe. Even if I wanted, I wouldn’t be able to write another Blindness –I am not Saramago. I will, however, try to analyze the logic of those who, in the Facebook group AMIGOS DE CUBADEBATE, showed themselves more indignant about the publication of the fact than about the fact itself. Replies such as: ‘Instead of taking the photo, they should have approached one of the officials and said something’; ‘It’s very easy to just criticize’; ‘Hopefully whoever took the photo was well-meaning’; ‘I think it shouldn’t have been published, it shouldn’t have become a controversy’.

Blaming Hermes of the seriousness of the message he carries, or of not delivering that message to ‘the right person’ is not a new trend in a sector of Cuban society. Such a logic of social self-denial has sustained excessive secrecy; the principle that ‘dirty laundry is washed at home’; that ‘the people’ –in abstract– are to be blamed for lack of discipline, and not those who organize certain actions; or that criticism or complaints in communication platforms solve nothing, and are only helpful to enemies.

What’s relatively new is the possibility of analytically observing the dynamics of a group in the social networks, and of seeing how a sector reacts to a reality that’s different from the model we set for ourselves. The first noticeable thing is that, in a group precisely named AMIGOS DE CUBADEBATE, with over 5,000 members, less than 50 people interacted with the post. There’s at least four possible readings: most of them don’t really care that the National Symbols Law was violated; they have concerns about the law being violated, but they believe this shouldn’t be made public and that there’s no need to have a debate; they believe that denouncing the violation of a law is worse than the violation itself; or they assume whoever denounces it is playing along with the enemy and, therefore, attention should not be paid to them.

Of those who did interact, only 8% argued in one or more comments against the fact itself and in favor of its publication. 16% –twice as many– were more concerned about the publication than about the actual incident. A check of the profiles of those in the latter group indicates that 100% of those who defended the idea of not publishing are or were public officials or leaders.

I understand that the sample is small even to attempt to establish exploratory conclusions. What’s in the mind of the thousands who preferred passiveness and silence is shrouded in mystery. That’s what’s really worrying.

It’s really not necessary to point out that local media made absolutely no reference to the flag being incorrectly displayed, even though nearly every journalist in town was at the Manzanillo square. Nevertheless, beautiful pictures of our flag have started to pop up in some of their profiles. There one can see it hoisted in the wind, with a deep blue sky in the background, proud and unashamed. Of course, I’ve given a “Love” reaction to all those pictures, though I understand that they in no way solve the problem of a blindness it seems Saramago himself would fail to comprehend.

(Translated from the original)

30 noviembre 2019 2 comentarios 415 vistas
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