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The Judicial System & Liberty

What does the judicial system have to do with liberty? Much in every way. A judicial system is a microcosm of the society. In the courtroom, parties are at odds, and a judge determines how to resolve the dispute. The judge does more than that. The judge determines punishment, exercising the power of the sword to take property, liberty, and even life from another human being. Therefore, the court can oppress the life of an individual human being, even if the society seeks freedom for its citizens. And how can a society be free if the governmental authorities seek to use the judicial system for its own purposes, to advance its power, to take authority from the individual or groups in society?

But how do you keep it within bounds? How do you keep it from overflowing the restrictions of what is judicial and flowing into other areas, where the power of the sword doesn’t belong? What if two people appear in court, at odds with each other, fighting over money that one claims the other owes? What if one is a poor employee and the other is a rich employer? What if the judge determines that it’s wrong to be rich, to own more than another? What if the rich man has done no wrong to the other, except that he has more money? What if the judge transfers money from the rich employer to the poor employee on no other basis than the fact that the judge believes no one should be richer than another? What if he then determined that should apply to all of society? You know that’s wrong, but can you explain why?

In other words, how do you know the appropriate bounds for the judiciary? What is a judge’s responsibility? How do you preserve both the punishing/restitution/justice power of the judiciary within a society based on liberty?

If we know the function of the judiciary, then we can learn something about its limits. Also, the law that governs the society and the judiciary will tell us its limits. In the American system, the court is limited to addressing the issues/disputes of the parties before it. But what if a party sues the government itself? What are the limits then?

In the American system of justice, you can sue the civil government, and a certain type of constitutional claim has developed over time. Procedural due process has always been considered a part of a person’s right to a fair trial, meaning, for example, that the process of trying a person for a crime should be fair and not surprise the person with changes or tricks. A judge or legislature that changes the process in midstream and forbids a party from examining witnesses to prepare for their case might be an example of a denial of procedural due process. A person denied due process can appeal on that basis to have the process applied to his case corrected or even overturned.

However, the other form of due process that has developed is something called substantive due process, in which the person challenges the very law upon which they have been prosecuted. For example, the person tried for sodomy might attack the law as unconstitutional because they claim their sexual lifestyle is just as valid as anyone else’s. That attack on the law against sodomy would be an example of substantive due process, not procedural due process. The party proposing that the law is unconstitutional would be considered by his supporters as a champion of individual liberty against government oppression. Whereas those who support the law would consider the challenge an attack on the traditional law and morality that protects the family and a godly society which God blesses, thereby undermining the liberty of those seeking to live in a decent society, free from the proliferation of profligate or immoral sexual practices.

Is a successful challenge to the law an example of liberty won through the courts? Or is it an example of the courts trampling upon the right of the legislature to pass laws? Is it the application of the constitution of liberty applied to unshackle the oppressed? Or is it a means for the immoral, the evil, the lawless to oppress those who stand for godly morality? Is the law a boot placed upon the citizenry’s neck by a tyrannical, overreaching civil government? Or is it the rational response of society to certain behaviors that threaten its founding principles? Is it the key to a prosperous and free society? Or is it the key to inviting the judgment of God upon the society? Is the judge liberating the unjustly downtrodden? Or is the judge oppressing the rest of us with his amoral view of the world? There really is no middle ground between the two world-views.

Which advocate of liberty is correct?