Justice and legality ought to be identical and simultaneous, but it’s not always like that. Victims want justice independently of strict compliance with the law, while the accused rely on the letter of the law to avoid arbitrariness. The tension between these two fundamental principles of social coexistence is healthy, but not always easy to conciliate. The case of Frenchwoman Florence Cassez, accused of abduction (and the cause of a major, ongoing, political squabble between the French and the Mexican government), clearly falls through the cracks that this tension produces in its wake. Over and above the specific case, the important question for us as citizens is what type of society do we wish to construct: one that adheres to the rules and obliges everyone to comply with them, or one in which justice is capricious and media-oriented, that is, arbitrary.
According to an old axiom derived from the Roman era and attributed to Julius Caesar’s father-in-law, one must “let justice be done, though the heavens fall.” The principle is logical and powerful: when an injustice, a crime, or an offence is committed, the victim is fully within their rights to claim that the person at fault pay the price of their act in the corresponding manner: reimburse the cost; pay a fine, or serve a sentence. There is nothing more important for a society than that criminals face up to the law and that justice be done.
The problem, as we Mexicans know so well, is that the reality is not always so clear-cut. For example, it is not obvious that justice is being done when a community acts on its own in the form of a lynching. It is easy to understand that a population beset by grief due to the enormous wave of crime from which it suffers, clamors for justice and tends to accept any means of justice to avenge the crime. Within a context in which there have been thirty thousand deaths in recent years and tens of thousands of abductions and many more robberies than that, the fact that at least some criminals end up in jail would appear to be a reasonable form of justice. But, at what price?
Some years ago, there was an illustrative case in Spain. Narco traffickers received drugs on the high seas, and they unloaded them onto speedboats to ferry them to land for their distribution on the drug market. The drugs flowed without greater ado until the police developed the capacity to intercept these boats. In one specific instance that became paradigmatic, the police were able to detain one such craft. However, when officials boarded the boat, the drugs had disappeared into the sea. Although there were photographs of the cargo being loaded onboard, the drug was no longer to be found on it. The prosecutor presented his arguments before the judge, but the lack of proof was convincing: in this decision, the judge affirmed that he had no doubt about the contents of the boat’s cargo, but from the perspective of the law, the lack of evidence was weightier. The drug lords were set free, not because they were innocent, but because the judge put the rule of law first. Along the same lines, many Mexican criminals in the United States have set free or their sentences lowered not because they were innocent, but because the public prosecutors had failed to comply with due process rules, mostly technicalities such as not calling the Mexican consulate as a foreigner has a right to.
The Rule of law is the principle that governmental authority is legitimately exercised only in accordance with laws that are written, publicly disclosed laws that are adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. This is the principle that judges, such as the previously mentioned one in Spain, affirm and with which they exact compliance. These are not mere technicalities; they are the essence of principle of legality, of the rule of law. Poor governmental conduct pays a very high price in the form of judicial failure.
The Cassez case is complicated for these reasons. I have no idea concerning the guilt of the woman. What is clear to me is that there was a multiplicity of violations in the procedures. The victims of the abductions attributed to Cassez evidently, and rightly, cry out for justice. The question is whether any price for that justice is justifiable.
Asserting the rule of the law implies a commitment with a distinct social, political, and legal order. In principle, it entails a disposition to accept the law as the norm and mechanism of interaction among persons and between the latter and the government, whatsoever the matter shall be. It implies that the government (including the police and district attorneys) is required to be scrupulous in its acts. If one contemplates all of the themes in which the society interacts with the government (such as taxes, regulations, murders, robberies, permits, demonstrations), imposing the rule of the law would imply a radical change in our social and political reality. The number of instances in which we the population or the authorities violate the law is amazing.
Certain much-bandied-about cases of crimes (such as abductions or murders) tend to generate an extraordinarily charged environment. The media adopt extreme positions and attempt to lynch the parties presumed to be guilty without there having been a trial. District attorneys incite the mob and fan the flames. Many of these end up with scorched fingers because they were unable to prove their case or because impudence in the procedures defeated them in the end (as in the case of the little girl found dead in her bed a few months ago in the State of Mexico). Our way is that of the crime pages, which is contrary to the essence of the rule of the law, whose main principle is that everyone is innocent until proven guilty. The great question is, then, what kind of society do we want to construct: one that achieves revenge at every corner (and regardless of cost), or one buttressed to the main principle of respect for people’s rights, whether victims or the guilty.
Instead of reinforcing legality, and with it, advancing the cause of justice, we have converted all the themes relative to criminality into a media circus. The authorities create montages as proof of their arguments (as if these were uncontestable evidence), reporters have become prosecutors and judges, and the police and district attorneys are consecrated as the least professional and competent professions of the country. Observing figures –criminals- such as “The Barbie” and the “JJ” become popular heroes should cause revulsion in us because there is nothing more contrary to justice. And, nonetheless, this is the form in which justice and the law, the two central tenements of a democratic society, have advanced in the country.
What type of society, and what type of democracy, do we want?