JUSTICE - THE WALKERS AND THE WAYS
JUSTICE
THE WALKERS AND THE WAYS
I
To speak of Justice, I must to begin by knowing what Justice is.
Contrary to what may seem, in my opinion, it is difficult to find a definition that is easy or clear enough.
Justice is more for to accomplish than to define.
However, I must to search for some lines of orientation.
First of all, in the common language, even people who dedicate themselves to these issues, it is often some confusion in the words. This confusion is common in France and even in Portugal, she has appeared too much. I refer myself to a supposed appearance of that Justice and jurisdiction mean the same, which is not true, despite this confusion evidences the perception of the social importance of jurisdiction, thus identified with Justice. In fact, Justice is a value, and, jurisdiction is a Way, even if the privileged Way to Justice.
II
In my nostalgic times of young judicial magistrate, I asked myself what Justice was. Although I had no time to research and to define, as that empirically I always felt - more than that I thought - that I did a just act whenever I could decide, so far as possible peaceful, a dispute between citizens my fellow creatures. And today, after I have jubilated, because I refuse myself to stop working in Justice to witch I continue to belong, I found myself trying to define what Justice is.
Justice is almost a dream, is a value, an objective, the final cause of all who work in the associated life of the relation, in the most varied sectors. There is Justice or not, when a teacher approves or disapproves a student, always applying the same regulations. There is Justice or not, when a doctor tries to understand well, or not, a patient, even when prescribing appropriate drugs, etc. etc. there is Justice or not when a Judge decides convincingly or not a cause, even when applying pertinent norms.
Anyway, the common sense of the idea of Justice, for the effect that it matters here, refers to the differences of legal character.
I tend to think that to finish a process is not; yet, to do Justice, although it is a fundamental act for this purpose, namely in light of the principle of reasonable term . But the principle of reasonable term coexists with the one of procedural equity, and would be said, that one is inserted in these.
While it is true, in my view, that the equity of that these rules speak is a principle of procedural nature , it appeals to the equality of treatment, the correction, independence, impartiality, dedication of the Judge, to the right to the contradictory, etc., and all this means the accomplishment of a reasonableness that is not an end in itself, but a series of tending procedures to which the solution is correct.
Of Justice, innumerable concepts have been tried. For me, more, much more than a concept, I am concerned that he happens, that takes place before concrete people and concrete cases.
But, I have to find a motivator element and root material of value.
This element is the human Person.
"The Man is the measure of all the things," said Pythagoras. And I think that we can add anything. To have an act just, it is not of the abstract man that we should talk. The abstract man does not exist. It is an abstraction. It may serve to speak of Justice academically, as essence, as an idea. But where Justice is done, or not, is in the concrete cases, is before the real people of soul, flesh and blood made. Each man, each person is a unique being! Each person is an "individual humanity," as said the Mozambican Mia Couto, in the enrichment that he given to the Portuguese language . Each person deprived of Justice is the main Walker for whom the Ways of Justice must be done.
Therefore, it is in function of the human Person that the value Justice has meaning.
On the other hand, I have to understand that Law, Right Justice is different things. Very briefly, Law is the norm, the rule ("dura lex sed lex"). Right is a set of motivations of the duty to be, since the rule, to the ethical options, to the moral and religious values, to the culture in general, in short to the factors that lead me to consider right or wrong socially, rectum or non rectum and from there the "directum" Latin, whence came Direito, Droit, Derecho, Diritto, etc.; and Justice, the value for which to count, primarily, more the Right than the small
To shorten reasons, I will go to search, to the news and the olds times, ideas that I consider crucial.
Just to mention some perspectives, our King D. Dinis, with the sensitivity of the poet, already in full middle Ages (late thirteenth century / early fourteenth century) said that Justice "pacifies life" . Much later, in 1776, when drafting its Constitution, the North Americans distinguished "the pursuit of happiness" as an inalienable right, alongside of the rights to the life and the freedom.
Already in our time, Paul Ricoeur wrote that "the horizon of the act of judging is finally more than security, the social peace".
From here, I go for an attempt of idea of the value Justice:
- Justice is and exists
- in the accomplishment of peace of welfare or, at least, peace of mind
- through the recognition of what each person belongs
- rightfully
- according to the ethical perspective
- and the circumstances of the concrete case.
On this, that would take too much time and much space to particularize, I will only say the following.
The peace that I speak must be a peace felt as blessing. Can not be, nor it is, the alleged peace of the nihilistic cemeteries in the caustic Voltaire way or the alleged peace of the silence of the oppression. It's peace of the tranquility and well-being.
The "suum quique tribuere" of Aristotle appears here as a mean and not as an end.
The Right is the essence of the ponderation: rightfully.
But the determinative perspective has to be the ethics.
And the context is the concrete.
Two brief remarks about the ethics.
On one side, in the mid-twentieth century, a distinguished Professor at the University of Coimbra, L. Cabral de Moncada, wrote two volumes about Philosophy of Law and the State where, at certain point of the Volume 2. º (p. 293), wrote this:
"The right …must first become naturalized citizen of the Republic of Ethics, if you want to get that minimum of validity and effectiveness that it is necessary in order to fulfill socially its mission."
On other side, allow me to recall here that the strong theme of the most recent Congress of the Portuguese Judges consisted - honors to whom had the idea and put it into practice! - The Ethical Commitment of the Portuguese Judges (Principles for Quality and Responsibility). Of Ethics, much has been said. But the important thing to note here is that those who are the "Keepers of Promises," in the words of Antoine Garapon, had assumed, had claimed no rights or benefits or privileges, but rather the duty of behavior and ethical functioning.
This means that the Portuguese Judges have laid the foundations of that, in a short essay that I wrote at the time, I considered that could and should be the basis of a Charter of Fundamental Rights of the Portuguese Citizens face to the ways of Justice.
What finishes staying tacked means that the Ways of Justice, for to them be, they must lead to Justice they must to make viable Justice, as in Classic Antiquity were all paths lead to Rome.
III
Still about Justice, I must admit that, talking about something related to concrete human beings, I can only assume that the valuation contents change with the times and spaces.
If I must fight for what I believe, identically I cannot leave to recognize that nor all had thought or think like me. Or will come to think.
This means that, if the value, as a continent is universal and eternal, its content is neither eternal nor universal. As Alain Supiot said, "the conceptions of Justice change, evidently, from one era to another and from one country to another."
But I must look for to contribute to what I consider a permanent improvement.
From there the meaning of the affirmations of François Ost , whereby the challenge that now presents to the jurist consists to "break with the past, but relying on it at the same time", to "give a future to the future."
IV
Speaking of Justice, I cannot leave make a brief reference to its opposite, the injustice.
As well reflected A. P. Barbas Homem, speaking of injustice, I speak of "limits of Right"
Anyway, if I have, of the Right, an ethical conditioning, it is hardly conceivable Right excluding the idea of Justice.
But, with law, already antinomy can happen.
"I illustrate" the case with art. 203 of the Constitution of the Portuguese Republic (the Court is valid to say, the Judge is subject to law). Any law? Even if it leads to injustice?
We can not take the cloud for Juno. This problem is apparent, but nor therefore, can fail to be clarified.
It is connected with Art. 8, second paragraph, of the C. Civil: "The duty of obedience to the law can not be removed under the pretext of their content being unjust or immoral." Or, I would say, its result?
This is of such legal orders that a minimum of common sensitivity and juridical at once repudiates.
But how?
The solution is simple, and does not resist to a minimum of research.
The context of the article 8 of the Civil C. nothing has to see with a Civil C. but, yes, with a Statute of Judges.
Indeed, as early as 1977, through the Law No. 85/77 of 12/13, art. 3 of the Statute of Judicial Magistrates regulated the thematic of art. 8 º Civil C. and excluded that unacceptable No. 2. And this new approach was confirmed by the current Statute of Judicial Magistrates (Article 3 of Law No. 21/85, of 07/30).
Therefore, paragraph 2 of art. 8 º Civil C. is repealed.
This has to do with the notion of State of Right. It is unmistakable State of Right with State of Laws What it is necessary is, distinguishing the law from Right to distinguish State of Law (which are, by nature, all) from States of Rights which are the ones that are rooted not only in laws but, more, on ethical principles of Justice.
But if I can and I must base myself in an idea of ethics to transform the abstraction of the Right in the concrete that has to be the Justice, I can not confuse this orientation with arbitrariness. I can not, purely and simply, to say: no matter how hard the laws say it, for there I will not go because I dislike the solution. I have to find a support base that ensures security, insofar as the proper security is one of the factors of Justice, although not security by security that even can to impede Justice.
Therefore, if you have a "magna carta" of a Constitution that reflects and mold a State of Law, I find on her the principles that will be guiding me in the interpretation and enforcement of the law, manly of arts. 203 (respect for the law) and Article 204 (which is consistent with the Constitution) – although, in the extreme, I will be able to find any formal norm of the Constitution which does not is conform to constitutional principles.
In a brief specific reference to the current Constitution of the Portuguese Republic, is enough for me the arts. 1 (human dignity), 2 (State of Law), 16 (prevalence of fundamental rights in light of the Universal Declaration of Human Rights) etc... etc… etc… to reflect what I intend to say.
In conclusion: it is in the Constitution that I find the limits to the application of laws, it is noted that in the principles surplus than in the proper literal rules.
Besides, the proper art. 203º of the CRP is example of what I intent to say as long as we can see the scope of the norm beyond literalism. Is that there is not a "law". There is too much and each time more. Therefore the art. 203 of the C.R.P. does not report to each law. It reports to the Right.
V
It's time for a brief summary of what I mentioned to until here, by the way of Justice, Ways and Walkers.
Walkers are the Human being with hunger and thirst of Justice. It is for them that there are any Ways of Justice and it is about them that their attitudes should be taken.
Justice is the value which is the goal, the goal of any paths that Walkers have to follow when, of it, needs.
Right is, for me, the "means of transport" more suitable, when viewed, conditioned, ennobled by ethics.
The Workers' ways, are those who should help the Walkers, as the Ways, are those, who act in them, to serve the Walkers, are Judges, Prosecutors, Lawyers, Solicitors, Justice clerks, Mediators.
What is missing?
The Ways. So let's say, then, a word about Ways.
VI
The main Way for Justice is integrated by the jurisdiction, whose basic function is to say the Right.
Strictly speaking, the jurisdiction is, in turn, integrated for some jurisdictional orders, as clearly follows from the art. 209 et seq. of the CRP and, agrees with it or not, of the of the same Magna Carta art. 217 and, expressly, of the CPC art. 66.
Among the jurisdictional orders, the one that more says to the ordinary people and their disputes is the judicial one, laws of organization and functioning, the Law 3 / 99, of. 13/01 and Law 52 / 2008, of 28.08.
Surely, in Portugal, the jurisdiction is the main path for Justice.
But, before a world where the disrespect for Law and ethics has reached such serious proportions and diversifications and so diverse, badly of the States that did not understand that according to circumstances several Paths for Walkers are necessary.
It is in this perspective, that appears or reappears several paths called "extra-judicial" or, in another reading, "extra - jurisdictional."
Significantly – in other words, pointing to the harmonization and to a common goal, Justice - is the same article of the CRP, the actual 202, exactly the one that best reflects the constitutional reserve of jurisdiction recognized to the Courts, is valid to say to the. Judges, to decide disputes legally adjustable that, since the 1989 revision, I said, is the same article that, in its paragraph 4, prescribes that "the law will be able to institutionalize instruments and forms of composition non-jurisdictional of conflicts," in a clear assumption of auto composition of disputes .
However, while, in 1982, the Arbitration Courts had started to integrate the current constitutional list of Courts, in 1997 was the turn of this same list to start to refer to the Justices of the Peace (now art. 209). Ones and others have specificities that distinguish them from the judicial court as, even more, of other Courts.
It follows from this that, being Courts, the Arbitration Courts and the Justices of the Peace are not, cannot be, non-jurisdictional Paths.
In Portugal, the same must be said of the conciliation that is, in this root, an act typically of the Judges. In fact, in my view, the conciliation is a so noble act of the Judge, as the judgment. May it be so, always, assumed as such.
Not speaking about acts without great autonomic sense for what, here and now, is more relevant, as the negotiation or the transaction, which stays as significant Path non-jurisdictional?
The mediation.
VII
Mediation consists very generically of the intervention of a third (Judge is also a third but the mediator does not decide and is oblivious, too, the decision maker), that is, someone who stands, not necessarily in the middle, but next to the interested parties and search that, beyond of saying what they want about the dispute (which is the immediate problem), they talk, unload the soul of what is underlying - conflict - (the old image of the iceberg) and find there a range of understanding that is not limited to earns of cause. This, that is right it has plenty of psychoanalytic and, contrary to what I have read, I do not believe that it is moved away from a well done conciliation and made in the light of what in the seemed transaction (which, respecting to a jurisdictional causes) integrates an idea of our law (article 1248 of the Civil C.):
1 - Transaction is a contract whereby the parties to prevent or end a dispute through reciprocal concessions.
2 - The concessions may involve the constitution, modification, or extinction of rights diverse of the controverted right.
This type of Way of Justice (and not merely technique of agreements) that, mainly in a large extent of the twentieth century was far away from the common situations, already in force in Portugal face to a remarkable Regiment of 1519, signed by King Manuel I, where was not used the word mediation, but it was prescribed in a tasty Portuguese of those times, said, "Ordination and Regiment of the Arbitrators of demands " – by the way Regiment of the Judges of the Peace
King says that it seeks that "our subjects live in peace and quiet and to avoid claims and disputes as much they can be and when will have them that they do not last long time for many and great inconveniences that if of them they follow."
He makes appeals that they have Justice, "for concert of good and virtuous men."
This Regiment already prescribed fundamental elements of the mediation, conjugated with Judges of Peace, namely, it would not be made by who, eventually, make the respective judgment and it would be safeguarded by the principle of confidentiality, prescribing penalties, which could go to exile, if this was not respected.
In our time, the ideas of mediation are to have great implementation of the two sides of the Atlantic, albeit with nuances, as an important contribution to Justice, linking himself to the jurisdiction, as is desirable basic objective.
If we want to think a little about on the already too much spoken, and unresolved crisis of jurisdictions - although of the to much that, on them worked - we must recognize that, in addition to other factors (such as procedural laws, particularly civil law, devoid of true rupture! ), there are general reasons of a social character.
The ancient defenses of the jurisdictions, such as religions, schools, families, friendships, they were doing? What they still do in some cases?
Mediation. Pacification. Conciliation: to put right, rectum, as it must be.
With the crisis of those institutions and the unprepared ness of the jurisdictions, mainly procedural – and, certainly, other reasons – the endemic “crisis of Justice” as, indeed, accentuated.
There are harmonics Paths to reinvent. In this sense are the guidelines of the Council of Europe and the European Union.
Mediation suffers, in Portugal, with scarce divulgation and controversial presentation. Namely, it is not, nor can it be alleged competitor of the jurisdictions. Should be harmonized, and not to make possible disconnected oppositions.
Mediation makes all the sense, as in France, in the generality of the Courts, at least since of 1995 legislation, can be performed in any judicial Courts of a lower court and the 2nd instance (see the book of Béatrice Brenneur, Justice et Médiation, then Judge of the Labour Cour d'Appel de Grenoble), as in criminal matters, but always with the possibility of normal intervention of the. They are the Judges who must hold the last word about the mediated agreements, and the sector of the inalienable rights, more than normal, it is indispensable. And, with this, the mediated save time and peace. And save time the Judges to engage in more complex causes. And the mediators earn objectives.
This colloquy is another great opportunity. We are in a stage where the victory of harmonization is possible in the interests of people who look for Justice. All without prejudice of the role of each one. I have no doubt in assuming that the function more difficult and more demanding is, in a country like Portugal that, constitutionally, and well, privileges the principle of the separation of powers, I said, is the Judge to whom the Constitution assigns the role of decider of legal disputes, with constitutional assumption of the call reserve of jurisdiction. But this does not prevent, nor remove any importance to the mediators that can and should be the companions of the Way (compagnons de route) of the people who look for Justice, listening to them, approaching them and trying to bring them peace.
It is in this spirit that we seek to retake at dawn of the XXI century. Not a new paradigm of Justice, but rather renewed paradigms of Paths of Justice.
Goes in this direction the Decision (2001/220/JHA) of the European Union (of the Council) of 15.03.2001, about criminal mediation, which does not exclude them from any stage of the process or the action of the Judge, which makes devoid of review (long before being made ...) the Law 2 / 2007 of 12.06.
Also goes in this direction the Directive 2008/52/EC of 21.03.2008, of the European Union about civil and familiar mediation, whose motives are much more important and general of that its reduced norms, and that they led to the transposition into Portuguese internal law, through Law 29/2009, of 29.06, with the addition of articles 249-A, 249-, 249 - and 279-C of the CPC.
Naturally, when talking of mediation, it should be taken into account the idiosyncrasies of the People and the national legal context.
On the one hand, we are a People who can recognize deficiencies of the jurisdiction but in general, want a Judge to be given the final word in their legal issues . The Judge is the real "keeper of promises," as called Antoine Garapon, already mentioned.
But mediation is perfectly reconcilable with the jurisdiction and both only have to gain in favor of the Walker, which for years I never get tired of repeating.
Mediation is usually presented as an emanation of the private autonomy. And it is.
However, we must all be aware, in this regard, in the Portuguese legal system, especially, of two aspects.
On the one hand, we must distinguish, as I mentioned, situations of rights available and, however, unavailable.
In that field, the interested ones can take to be enforceable executive titles in the extent of art. 46 paragraph 1 d) of the CPC.
But almost all are unavailable rights, particularly in Family Law and to a large extend of the Labor Law. And so, in this context, the intervention of the Judge is, legally, indispensable. But, curiously, these two fields are those in which, in my view, mediation may be more useful. Problem? Extremely simple solution: "marry" the court's intervention and of the mediation, as, indeed, was done in the field of family law.
On the other hand, free and informed formation of self-will is a principle of public interest and private autonomy. Or, in another aspect, it must be noted in the words of Carlos Mota Pinto : "this autonomy, this power of self determination in relationships with the others, necessarily assumes the equality or parity of the legal status of subjects."
But none of this precludes the mediation.
What does all this – one more time I emphasize it - is to advise, "impose" the harmonization between jurisdiction and mediation. One and another only win with this harmonization and, more important, wins the citizen Walker.
Something that goes beyond mediation, reducer in its scope, devoid of revision, either in connection with the proper intervention of the Judge, either of the dimension of the process.
VIII
Finally, a few words concerning of the transposition of EU Directive (mediation) 2008/52/EC, for the Portuguese national law.
The transposition of that Directive, not being exemplary, is a good basis of work for effective harmonization between jurisdiction and mediation.
That implementation was subject of the Law 29/2009, of 29.06 and, in the part that matters for this purpose - with additions of the arts. 249 – A, 249 – B, 249 - C and 279 – to the CPC - entered into force in 30.06.2009 (Article 87 paragraph 2 of that law).
In this ambit, the Law 29/2009, regardless of any other objectives , had the scope to transpose into national law, rather than the rules, the principles of the Directive of 2008, particularly with respect:
a)to the pre-jurisdictional mediation;
b) to the suspension of limitation and prescription terms if there is prior use of mediation systems provided by order in council of the Government;
c) to the express the possibility of the parties – it is valid to say, any of the parties - requires the homologation of the mediated agreement by the Judge, in any Court having jurisdiction in due to the matter, which is of urgent character, it should be noted that, in the case of inalienable rights, must be understood that the legal relevance in the agreement requires, necessarily, of jurisdictional homologation;
d) to the confidentiality of mediation sessions - except as to the terms of the agreement - and save in exceptional circumstances, namely when the physical or psychic integrity of someone is in cause;
e) to the mediation that Mrs. Professor Doctor Paula Costa e Silva calls "intra procedural" in the course of any process by initiative of the Judge and not presuppose the express opposition of some of the parties, in my view necessarily prior to the start of the mediation acts;
f) to the possibility of the parties opt for mediation, even in the course of legal proceedings, with the suspension of instance and subsequent submission to the homologation in accordance with the transactional regimen.
Formal problem that can result from the context of the referred norms is the provision of an order in council under paragraph 2 of art. 249-A and by the paragraph 2 of art. No. 249 - B of the CPC, which not yet exists, despite that normativity is in force since 30 of June of 2009 (Article 87 paragraphs 2 of Law 29/2009).
Nevertheless it must insist on the formal publication of such ordinance - note that the Law 29/2009 has been amended two times, but not about the normative at issue (Law 1 / 2010 of 15.01 and Law 44/2010, of 3.09) - must be held two procedural realities:
a) Since soon, such ordinance is not conditioning of the general applicability of the referred norms. When it is the case, the legislator must say it as, for example, made exactly to the purpose of the successional normativity concerning to the same law, paragraph 1 of art. 87, as amended by Law 44/2010 , given that, to the rules in question, does not relate to in paragraph 1 but, yes, paragraph 2 of art. 87.
The subject matter of order in council only respects, as to the said law:
- In the case of "pre-judicial" mediation, the suspension of the terms of caducity and prescription, without prior presentation of jurisdictional petition, if used system provided (it is valid to say, recognized) in such ordinance: cf. paragraphs 2 and 5 of art. 249-A of the CPC and report DL N. 295/2009, of 13.10, which brought the art. 249-A/249-B/249-C and 279-A for the CPC to the CPT (Article 27 - A of the CPT);
- If the case of request of jurisdictional homologation of prior agreement, the foreseen ordinance would only is important for the electronic submission: paragraph 2 of cited art. 249 - B.
The lack of the referred ordinance is important and must be resolved because, despite of predictions of Family Law and Guardianship, of Labor Law, of the Justices of the Peace, the organizational rules of mediation arise today, in Family Law, of a Dispatch and, in Labour Law, a simple protocol.
Distinguishing "intent of the legislator" of "legislative intent," we thought considering the lack of that ordinance supplied, at least in part, by Order in Council 237/2010, of 29.04, face to art. 2 of the regulation who approved the norms about mediation courses. But, rethink the subject, it would be an interpretation too forced. We hope and wish that, when this text is published, the missing ordinance already exists and it is in force.
One last word concerning the transposition of the Directive, in what respects to the Justices of the Peace.
On the one hand, I'm sure that the regimen of civil procedure referred, as it now is, has nothing to see with mediation and subsequent agreements reached intra procedimental in the Justices of the Peace This thematic is one of the specificities of the jurisdiction of the peace, ruled by special legislation, with the characteristics, causes, regimen and own consequences and without omissions that, eventually lacked of regulation and should not be regulated as such special legislation - which, of course, prefer to the general - currently the Law 78/2001, of 13.07, now under review but without nothing that contradicts this view, indeed, the regimen of the Law 78/2001 is not opposed to the essence of the Directive of 2008.
Another thing, is what concerns to the pre-jurisdictional mediation; here, yes, we must admit the applicability of the general regimen of the possibility of intervention by the Judge of the Peace for being required the homologation, in the extent of its substantive jurisdiction, as follows from n. 2 of art. 249 - B of the CPC, for force of Article 63 of the Law 78/2001 . what I add here - because I can not confuse the interpretation and application of laws with simple reading – making compatible the CPC with the Law 78/2001, is that "the unity of the legal system" (command of paragraph 1 of art. 9 to the Civil C) makes me think that, with respect to the Justices of the Peace, the competence due to the value - Art. 8 of Law 78/2001 – until the value of the judicial competence of the 1st instance - has, in the Justices of the Peace, one importance of similar meaning to the substantive jurisdiction, hence the fact that the Judge of the Peace can not intervene on the mediation that exceed, in terms of value, its competence. It is the meaning of the Law N. 78/2001, art. 16.
Already the territorial incompetence, apart from purely formal and circumstantial, is deflected by the logic of paragraph 2 of art. 249-B of the CPC
IX
Concluding:
If the Berlin Wall fell, we must avoid and eliminate the "low wall" that, sometimes, arises between you and they prevent the right options.
That we all must to worry, namely Judges and mediators, each one in its function, exclusively with the Walker of the Paths of Justice, the citizen in need of peace of well-being.
Harmonization is easy and normativity is open in the right direction, though lacking in additions and improvements, like everything that is human.
If we all join hands in favor of the Walker, surely he will say, in the good Portuguese way:
“Bem hajam”!
And everyone will be in good peace.
Lisbon, 23 of September of 2010
Jaime Octávio Cardona Ferreira
