But the problem of free-for-all judicial independence versus biblical judicial independence is worse than the typical judge catering to his favored political masters and rendering "judicial independence" opposite to its original meaning. Today's judicial independence is an out-of-control religious, philosophical, political, jurisprudential anarchy that, if continued, will result in the spiraling out of control of the American experiment in representative democracy. Why?
1. If every appointed or elected judge can interpret the law as he sees fit, then the law is as malleable as clay. Any objective can be reached, given enough time (as the secular evolutionists say of astrophysical, geological, and biological evolution), by the determined progressive jurists, so-called.
2. It means law is not law. And why should law be law? The secular evolutionists as to the source of the modern earth and its inhabitants would ask the same question: Why should law be law? On their terms, law is not law, just temporary policy until it evolves into whatever is needed/expedient/helpful at the time. In the biblical sense, law is, and it cannot change, just as the very God who gave it does not change. It may change in its application in a certain time, but the law, God's law, cannot change.
3. It means there can be no constitutions upon which republics can be built. If we do not submit to the existence of a law issued and irrevocable by God, then why would we submit to a document written over two hundred years ago by men long dead and unfamiliar with our present circumstances?
4. It means all judicial opinions are equal. The biblically-guided judge in rural Alabama is no better than the radical, atheist, evolutionary judge in Washington. All opinions are equal, and if one part of the country believes homosexual perversion is a valid basis for marriage or that cannibalism is a valid form of nutrition while another part believes the opposite, then so be it. We'll see which view evolves into the best for the rest of the country or not. Actually, the presumption would be against the biblical view because the bible is old. Old is bad; we evolve from the old to the improved, although, strangely, it seems that no one of the progressive camp considers that evolution can lead to extinction as well as improvement.
5. It means the liberal judge is a "true" judge. The classic definition of a legislator is a writer of law. The classic definition of a judge is a person who interprets the law in accord with its original meaning, not a re-writer of the law. Therefore, in the classic and the biblical view, the liberal, progressive judge is not a judge but a legislator, a violator of his oath as a judge, a perverter of the law. That person is not fit to be a judge at all. But in the modern, progressive view, where truth cannot exist as a fixed compass point and plumb line for law or governing, the judge who sticks with the original intent of a law is thwarting progress, is hopelessly wedded to an out-dated and perhaps deleterious interpretation of a law that we no longer need. The classic judge is holding back the movement of progress, is intellectually inferior because he refuses to use his imagination to come up with a modern view of the law that meets the modern need. Take marriage as an example. To the progressive, expanding marriage to include the homosexual is required by the modern need for such. For the judge who believes law, and therefore, the definition of marriage, is fixed, it's a twisting of the law.
6. It means permanent deadlock, at best. The progressives will always seek to put legislating perverters of the law into judgeships, while conservatives will always be horrified by the damage such judges will do to the law. The conservatives will always try to have originalist interpreters of what the law is, while progressives will consider such judges backward, stupid, stubborn hindrances to necessary progress in society. There can be no middle ground between the two views.
7. It means toleration of this stalemate will result in one of three endings: One, the victory of the progressives, resulting in the ever more rapid devolution of law into personal opinion, and ultimate chaos. Two, a permanent stalemate, as political opponents fight over who will be judges, and a resulting patchwork of fixed laws along with changing laws across the political and geographical landscape of the country. Either way, the society breaks down, more rapidly in the first scenario. Three, the disgust by the people in a legal system falling apart, meaning the people turn to some philosophical/political/judicial system that has enough will to enforce a consistent and more traditional view of law on the society. That means our present system is merely a transition period from one jurisprudential view - biblical - to another - what, we don't know yet. It could mean a transition period that results in the people demanding a return to biblical law, but in my opinion, we don't see that as probable yet.
Sunday, December 1, 2013
The Myth of Secular Judicial Independence
In principle, the concept of judicial independence is a Christian concept. Without a God to whom the judge is answerable and in whose place the judge rules, there is nothing to stop the judge from simply following the ruling elite's direction. You could argue that in a secular system popular election would provide the potential for some independence. However, notice how the ruling elite complains about all the "problems" surrounding popular election - the people are ignorant, campaign contributions corrupt the judges, it's "unseemly." These are the ostensible reasons for prohibiting the people from choosing their own judges, but the real reason is that the legal unions (bar associations) and the ruling judges and politicians have little or no control over who becomes a judge, and this they cannot tolerate.
The concept of judicial independence is critical to a biblical system. However, from what are the judges independent? Moses instructed: "And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it." Deuteronomy 1:16-7. The judges would have to be dependent upon God and His law, not independent, in order to properly judge. There's only one other alternative - dependence upon man. It might be the ruling elite, who can pay them with money or with advancement in the political system. Or it might be the judge himself. If the judge has no god to whom he's loyal, and the judge doesn't care about the ruling elite, by what standard does the judge issue rulings? What if the judge is loyal to another religion, another god? How can such a judge rule over a Christian people, who worship the Christian God?
You might argue that the judge should rule according to the law, no matter what the judge's personal beliefs, but this is a naive view. Interpretation is the constant focus of study in all law schools. Interpretation is the lever used by judges to change the law. A judge's personal beliefs, religious beliefs even, will inform them as to how to interpret laws.
In his 17th century magnum opus about the biblical concept of king and civil government and the people, Lex Rex, Samuel Rutherford wrote: “Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. xix. 6, “The king said to the judges, Take heed what ye do, כילא†לאדם†תשפטו†כי†ליחוה†, for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear of the Lord be upon you, take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.
“Hence I argue, 1. If the Holy Ghost, in this good king, forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumeth, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do. 2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect persons, nor take gifts; and you judge for me, the Supreme Judge, as my deputies. But the king saith, They judge not for man, but for the Lord. 3. If, by this, they were not God’s immediate vicars, but the vicars and deputies of the king, then, being mere servants, the king might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far as he is a servant and deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s. 4. The king cannot command any other to do that as king, for the doing whereof he hath no power from God himself; but the king hath no power from God to pronounce what sentence he pleaseth, because the judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. i. 17,) Moses appointed judges, but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (saith he) is the Lord’s, not mine. 5. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous judgment, but in so far as the king should approve it or disapprove it; . . . .”
Rutherford wrote to oppose the statist position of many that the judge is the mere arm of the king who appoints the judge. Such a position denies the judge's duty to fear God not man. Thereby, the judge acts independently of man and king, but not of God. Notice that many of the most vociferous advocates of judicial independence today are secular humanist lawyers, judges, and politicians. The politicians love it when a judge defies God and the people and rules in favor of some progressive cause. The people criticize the judge, and the politicians, pretending neutrality, call for the critics' heads for opposing "judicial independence." The judge's ruling may defy God's law, common sense, and be perfectly in line with the appointing public official's viewpoint of what the law should be, yet instead of calling it what it is - sycophancy by the judge toward the political masters appointed the judge - and they call it judicial independence. This is a perversion of the doctrine. In defying God's law and agreeing with the partisan political masters, the judge has advanced his political prospects with the system. He has acted loyally for his appointing masters and defied God and the people; thus in the name of judicial independence, the judge has denied judicial independence.
The concept of judicial independence is critical to a biblical system. However, from what are the judges independent? Moses instructed: "And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it." Deuteronomy 1:16-7. The judges would have to be dependent upon God and His law, not independent, in order to properly judge. There's only one other alternative - dependence upon man. It might be the ruling elite, who can pay them with money or with advancement in the political system. Or it might be the judge himself. If the judge has no god to whom he's loyal, and the judge doesn't care about the ruling elite, by what standard does the judge issue rulings? What if the judge is loyal to another religion, another god? How can such a judge rule over a Christian people, who worship the Christian God?
You might argue that the judge should rule according to the law, no matter what the judge's personal beliefs, but this is a naive view. Interpretation is the constant focus of study in all law schools. Interpretation is the lever used by judges to change the law. A judge's personal beliefs, religious beliefs even, will inform them as to how to interpret laws.
In his 17th century magnum opus about the biblical concept of king and civil government and the people, Lex Rex, Samuel Rutherford wrote: “Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. xix. 6, “The king said to the judges, Take heed what ye do, כילא†לאדם†תשפטו†כי†ליחוה†, for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear of the Lord be upon you, take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.
“Hence I argue, 1. If the Holy Ghost, in this good king, forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumeth, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do. 2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect persons, nor take gifts; and you judge for me, the Supreme Judge, as my deputies. But the king saith, They judge not for man, but for the Lord. 3. If, by this, they were not God’s immediate vicars, but the vicars and deputies of the king, then, being mere servants, the king might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far as he is a servant and deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s. 4. The king cannot command any other to do that as king, for the doing whereof he hath no power from God himself; but the king hath no power from God to pronounce what sentence he pleaseth, because the judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. i. 17,) Moses appointed judges, but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (saith he) is the Lord’s, not mine. 5. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous judgment, but in so far as the king should approve it or disapprove it; . . . .”
Rutherford wrote to oppose the statist position of many that the judge is the mere arm of the king who appoints the judge. Such a position denies the judge's duty to fear God not man. Thereby, the judge acts independently of man and king, but not of God. Notice that many of the most vociferous advocates of judicial independence today are secular humanist lawyers, judges, and politicians. The politicians love it when a judge defies God and the people and rules in favor of some progressive cause. The people criticize the judge, and the politicians, pretending neutrality, call for the critics' heads for opposing "judicial independence." The judge's ruling may defy God's law, common sense, and be perfectly in line with the appointing public official's viewpoint of what the law should be, yet instead of calling it what it is - sycophancy by the judge toward the political masters appointed the judge - and they call it judicial independence. This is a perversion of the doctrine. In defying God's law and agreeing with the partisan political masters, the judge has advanced his political prospects with the system. He has acted loyally for his appointing masters and defied God and the people; thus in the name of judicial independence, the judge has denied judicial independence.
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