[Viewpoint] On the conscience of justice

The conscience that lies at the heart of religious and secular morality is inherent to all humans, touching on individual as well as common moral obligations and religious obedience. The philosophical perspective varies depending on the conscience’s conformity to individuality, social ethics and divinity, but no individual conscience is completely free from society and its members.

The word is a compound of latin “con” (with) and “scientia” (knowledge). In other words, the conscience is a form of ethics exercised in a community. The conscience therefore falls in the realm of the law. The Constitution protects the freedom of conscience (Article 19) and requires the judges to make independent decisions according to the law and society’s conscience (Article 103).

The faculty of conscience is different in the two articles. The former refers to a fundamental individual right, and therefore is subjective and personal. The latter is a moral principle all justices must follow, and therefore is objective and regulatory.

Several not-guilty verdicts in ideologically-sensitive cases by young criminal justices have raised hackles in our largely conservative society. Judicial rulings in a democratic society can come under fire. But criticism must be restrained to some extent. The recent cascade of condemnation and populist outcries have been excessive to the point of jeopardizing the sovereignty of the judicial branch. Constructive criticism is criticism accompanied with a degree of moderation.

But younger peers in the court should pay heed to public concern. Their constitutional liberty is bestowed to benefit the public good, not an individual’s. A court is not a place to exercise individual will and belief. A court justice sometimes must put aside his or her convictions to comply with modest expectations of ordinary people. American courts have adopted the jury system in order to fulfill such needs. Humility is a virtue necessary for court justices.

Modesty can supplement for a lack of experience and expertise in the court. A “young conscience” may be less spoiled, but at the same time less substantial. A “mature conscience” bears the weight and depth carried by life experience. I still shiver at some of the judgments I made as a young judge presiding on the bench alone.

The fact-finding process in litigation is called a hearing. A judge is required to “listen” before deciding to preside over a case and speak his or her mind. Shutting off ears to voices contradictory to his or her moral yardstick is arrogance that is uncalled for in the courts of conscience. An arrogant conscience is equivalent to conscienceless. A conscience that neglects objectivity and common sense can breed self-importance and spur hostility instead of harmony in society.

The judges that handed down the contentious rulings probably had weighed what’s right and wrong beforehand. But the realm of justice is not infinite. It exists within the boundary of common reason. Roman senator Cicero declared: “Extreme justice is extreme injustice.”

A justice is not elected by the people and escapes judgment himself. He therefore must take pains to display self-control in the court. Just because he sits on the bench, he is not licensed to scorn a defendant much senior in age. He himself is a display of immaturity.

A justice does not gain a conscience from books. It must come from within the individual. A bar exam cannot screen the character of an aspiring judge. The justice training institute should pay more attention to nurturing the minds and character of the future justices, but few have time for such inner reflection.

There is no set conclusion for rulings. It can be supported by all kinds of legal interpretations and precedents. Facts and evidence can be molded to feed the justice’s intuition. In legal positivism, any ruling is possible. German law professor Gustav Radbruch, critical of positive law that disregards common sense, said the practice is tantamount to the euthanasia of legal philosophy. French theologian Blaise Pascal also mocked the human susceptibility to conclude justice is what’s right or wrong based on what they like. This often makes something “true on this side of the Pyrenees and false on the other,” as Pascal wrote.

The judicial system should use the latest round of controversy for self-reflection, or otherwise it could have to yield to outside pressure. I have a strong belief in our justices. I hope my trust won’t fail me. At the same time, I would like to appeal for criticism based on reason and moderation from the media and politicians.

*The writer is former head of the Seoul Central District Court.
Translation by the JoongAng Daily staff.

by Lee Woo-geun