Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. –Judge Learned Hand
If we were to ask ourselves what the Constitution represents to us as citizens of a constitutional monarchy, we would likely respond that it stands as the symbol, par excellence, of our rights and responsibilities as citizens. The Constitution forms a compact between the monarch and his people wherein the citizens of Westarctica, in exchange for recognizing and respecting the lawful constructs and prerogatives of the crown and of the state, are granted certain rights and freedoms to pursue a meaningful citizenship experience. In short, the Constitution symbolizes our liberty.
The laws of a nation and its constitution, when properly and liberally conceived, are proposed and enacted for the purpose of ensuring for the citizen, individually, and for the people, corporately, the greatest possible degree of freedom to live meaningful lives and to pursue every legitimate opportunity to be happy in the living of their lives.
Limits to the freedoms and liberties of the citizen and of the people may be and must be drawn from time to time, however, and are, therefore, drawn by government through law whenever those freedoms and liberties happen to clash with the public need to preserve the integrity of the fabric of civilization, broadly and globally, and the stability of the civil order more locally. Liberty, after all, does not mean limitless personal freedom characterized by rights without responsibilities; that is the definition of adolescent immaturity, not of liberty.
Liberty is not license, nor is it mere libertarian autonomy. It is much more than that. It is much loftier than that. It is much more complex than that. Liberty, in the context of the Western liberal order, is, at heart, the freedom of the people to create for themselves a good, even a great society in which to dwell together in peace, harmony, and prosperity. And I would, here, stress the word “together”, for no man is an island unto himself. The notions of “liberty” and “society”, therefore, are not separate but, rather, they go hand-in-hand.
Arbitrary power is most easily established on the ruins of liberty abused to licentiousness.
Any society erected properly under the auspices of Western liberal civilization will purpose to be a fundamentally just, fair, and generous society which favors communal prosperity, and will be one, furthermore, in which the humanities are not merely permitted to flourish but in which their flowering is, in fact, prioritized. What kind of a life is a life without culture, after all?
The ability to enjoy a good, happy, and culturally rich life--what the Italians so rightly and so charmingly call “la dolce vita”—depends entirely upon the kind of civil society we erect for ourselves as a people. Our freedom to be ourselves, individually, within and as a part of such a goodly society is largely what we mean when we talk about “liberty”.
The role of the law and the constitution is to establish both the foundations and the framework for the building of the civilized order which bestows upon the citizen the freedoms and opportunities he or she requires to be happy and fulfilled within it while at the same time lending integrity and durability to the order itself. A civilized order, after all, is centered not upon individuals but upon a community composed of numerous individuals, each of whom has a different set of personal priorities. Where an individual’s personal priorities intersect with the contrary priorities of another individual, there is the law. Likewise and moreover, where an individual’s personal priorities intersect with the contrary priorities of the community as a whole, there is the law.
The role of the law in the civilized liberal order of society is to inform the citizen that he is both free and valid while at the same time reminding him that his neighbor is also free and valid and that, together, they enjoy and are responsible for the success of a common enterprise. That enterprise is nothing less than the building and curation of a just, peaceable, and meaningful community to be enjoyed by all involved and by posterity to follow. The citizens of that community will have together agreed upon a compact, implicit in which is the idea of individual self-sacrifice for the good of the social order.
In the context of such a compact, the intelligent and evolved citizen knows and understands that it is incumbent upon him to make certain adjustments to his personal priorities, from time to time, in order to accommodate those of his neighbor, and, moreover, those of the community as a whole. He knows and understands that similar adjustments have been made by others to accommodate his own personal priorities. The individual citizen, therefore, willingly and cooperatively yields to decisions made by the community together in legislative congress--decisions which govern the restrictions of individual priorities in favor of the more paramount priorities of the whole community.
To illustrate this, we might look to the idea of freedom of expression. While individuals must be free to express themselves through speech and other means, limits to individual freedoms necessarily arise when the greater good of the community demands as much. The law, for example, in a just and liberal society, will permit one artist to express himself through pen and ink as he draws and publishes a satirical cartoon lampooning the hypocrisy he observes in the very government which creates and enforces that society’s laws. The law will not, however, permit another artist to express his enthusiastic endorsement of the policies of the government by means of graffiti sprayed onto a public building or monument.
The basic distinctions between those two avenues of personal expression are obvious and the immediate reasons why laws permit one but not the other need hardly be explained. Perhaps less instantly obvious, however, is the truth that one of those forms of expression, whether consciously or unconsciously, buttresses civilization, in a general sense, whereas the other, whether consciously or unconsciously, undermines it. And in this we can see that instinct and the imperative to preserve, protect, and fortify the fabric of human civilization far outweighs in importance the freedom of the individual to express himself as he sees fit.
Consenting to the notion of responsible and ordered self-expression which requires a modicum of self-restraint for the greater good of the community is a form of sacrifice. Sacrifice, it might well be said, is the water of liberty’s seed and it is absolutely crucial to the building and maintenance of the society of a free people. Freedom, which has by peoples throughout human history only ever been gained by sacrifice, is likewise only preserved and nurtured through sacrifice.
This sacrificial ingredient which is wholly necessary to authentic liberty is scarcely to be found in the egocentric construct of strict personal autonomy which, through aped and redefined terminology, masquerades as liberty but which is in actuality little more than an immature selfishness upon which no durable society worth participating in may be realistically based.
Liberty is not the avoidance of our civic responsibilities or of our responsibilities as brothers and sisters to one another as members of the human race. Liberty is not merely fending for oneself and leaving it up to other individuals to do likewise, according to their abilities. Liberty is not merely leaving one’s neighbor alone in the hopes of being likewise left alone to do as one pleases at any given moment. What a hellishly brutal, severe, and deformed society must flow from the notion of the absolute autonomy of the individual.
Liberty, instead, is our very freedom to form, together, the best society we have it within ourselves to become and to fully participate in it. If the law provides the necessary framework in which to accomplish that objective, then the courts, as agencies of the law, stand as the indispensable venues of arbitration for the ministrations of justice within that framework.
The need for courts and judges may seem a puzzle on the surface. If, after all, we have laws which inform us of the limits of our freedoms, of what need have we of judges and courts to verbalize to us what is clearly written in the law? The answer, naturally, lies in our very humanity. Sentient human beings are not robots programmed to confine their actions to written programs. Violations of the law occur, on the one hand. On the other hand, the very meanings of our written laws may be disputed.
It is the role of the court—of the judge—to listen to conflicting accounts of behaviors vis-à-vis the law when it is alleged that behaviors have violated the laws of the land or the rights of persons. That much is obvious. It is also the role of the courts, however, to interpret our laws when the meanings of the texts are disputed by two parties. And, as we know, it is the role of the highest court to decide whether or not our laws conform to the Constitution.
In order for judges to properly adjudicate cases or rule on questions, however, it is necessary that judges be allowed to be as fully human as any other citizen. Just as private citizens are not robots who follow programs, neither are judges, nor should they be expected to be. A judge will hardly judge anything well and properly by narrowly restricting his jurisprudence to the literal meanings of written texts frozen in time. Anybody can do that.
A judge, however, endowed with a public trust, is expected to be more than a kind of legal algorithm. A judge has been seated at his bench with a mandate to employ not only his reading glasses, but his learning, his intellect, his wisdom, his character, his compassion, his empathy, his knowledge of the law, his understanding of the needs and expectations of the community, his grasp of the multiple facets of the situation in hand, and, indeed, his very humanity in the service of justice.
A judge must see and understand the broader context of the law in the light of the present day and of the expectations of the present moment, rejecting the temptation to view the law as a one-dimensional historical curiosity written down in ages past, but treating it, instead, as a multi-dimensional living thing to be viewed from a variety of angles through multiple prisms, the understanding of which will necessarily evolve, develop, and transform through the years along with the very community of people for which it was written.
One may be forgiven, I think, for detecting something hypocritical among those who typically rail against what they like to call “judicial activism”. The hypocrisy of which I speak lies, of course, in the satisfaction such persons exhibit when judges happen to be “active” in their favor, or conversely in the rage they exhibit when judges decline to be “active” in favor of a cause which they embrace.
Opponents of “judicial activism” and advocates of “originalism” or “strict constructionism” will argue that judges who deliberate outside of a strictly literal paradigm are guilty of “legislating from the bench”, a singularly puddingheaded phrase which implies that deploying a global perspective in the craft of interpreting the law Is tantamount to usurping the prerogatives of the legislative branch of government.
Is a judge to be faulted for reading and interpreting the laws and the constitution of his community with eyes trained to absorb context broadly rather than parochially and narrowly? Does a judge “legislate” when his jurisprudence admits of a broad and comprehensive understanding, not only of the written word of the law in the context of the times in which it was written, but also of the past priorities of his community juxtaposed against the community’s present day priorities, with an eye toward how his decisions or rulings may impact his community, not only today, but in the future?
The charge of “judicial activism” levied against a nation’s judiciary tends to amount to little more than a reaction against judges who have the audacity to think, and at the core of that, of course, is a more fundamental reaction against a society’s natural tendency to evolve.
As some would have it, it is the role of the judiciary to serve as little more than a pair of brakes applied to a community’s progress. But is it really the role of the courts to dictate the pace of progress? What sort of tyranny from the bench does that notion propose? What if it is the role of the judiciary, instead, to cooperate with the legislature and the executive in deftly steering the community and keeping it stable at whatever velocity the people might, in their wisdom and energy, decide to travel forward?
The purpose of a nation’s constitution is hardly to shackle the future to the expectations of the past. What nonsense to suppose that a nation’s founding fathers should have wished to dictate for all time the pace of the nation’s progress, growth, and development? What foolishness to suppose, furthermore, that they would have had in mind a nation loath to evolve? How preposterous to imagine that the authors of a constitutional document would not want posterity to shred it to bits if keeping it intact meant that the nation, itself, would stagnate and that its growth would be stunted? Does a constitution, after all, exist for the sake of a people or does a people exist for the sake of a constitution?
And do we expect, therefore, that judges should somehow not possess the same intelligence and common sense as the people they serve? Should they not also see and understand the need for a community to adapt to changing times and changing circumstances? If we do expect that, we are effectively telling one of our three branches of government that it ought to walk lamely and blindly behind the other two branches, failing our society and hampering its growth at every turn. I’m not sure that arrangement quite works to civilization’s advantage.
At the end of the day and in the last analysis, the law is about people, and the courts serve their communities best when they keep people in mind, prioritizing the greater good of the people over the strict letter of the law. Is that to say that laws and words mean nothing? Of course not. Liberty, itself, has for a guarantor the rule of law and the rule of law must be both cherished and safeguarded...but sensibly, intelligently, realistically, and flexibly. To be implacably rigid in the interpretation of the law is to ensure that the law, itself, becomes a hindrance rather than a help.
Liberty means responsibility. That is why most men dread it.
-George Bernard Shaw
The first decades of the 21st century have witnessed and continue to witness an erosion of the liberal international order established after the Second World War, and what is eroding that order is none other than an alarming resurrection of the very ideas and philosophies espoused by the nations of the Axis which were defeated in that conflict by the allied democracies in their righteous might through much blood, sweat, sacrifice, and tears.
The rise of the kind of governing philosophy which has no use whatsoever for the integrity of the law or of the rule of law (or even truth, itself) is a growing threat to the vitality and hegemony of the liberal order of free peoples. The order of liberty is threatened not only by its traditional antagonists but in these days by nations which had been understood to be the very authors and sworn champions of that order. For heaven’s sake; who, a decade ago, could ever have imagined such a vexing development? And yet here we find ourselves.
To see and to comprehend what is going on within human civilization and to understand how much is at stake if we fail to preserve the democratic order is very much the responsibility of the judiciaries of the nations and communities which constitute that order. In these days, it is absolutely necessary that judges and courts take into consideration the fate of democracy, of liberty, and even of civilization, itself, when engaging in the mechanisms of their high calling.
Judges, particularly appellate court and constitutional court judges, must, when ruling, bear in mind how each decision, each judgment, will impact the stability and vitality, not only of their own nations governed by the rule of law, but indeed of the global order of liberty. Too many have sacrificed too much over too many decades in furtherance of the cherished principles of that order to allow it to fail or falter, and so much concerning the success of that order depends upon the decisions made by our courts and our judges.
As His Royal Highness’ most recent appointee to the bench of the Grand Ducal Court of Westarctica, I am the least qualified, the least astute, and the least worthy member of this distinguished body to don the honorable silks of the judiciary. What I lack in experience and degrees and in time spent here, however, I intend to make up for with an unshakeable commitment to the defense of the rule of law in the service of the people of Westarctica, always with their freedoms in mind, and always in the broader context of the defense and preservation of liberty, itself.
I would adopt as my personal judicial motto the very title of this piece, “Justice in the Service of Liberty”. That is precisely how I conceive of the task which it will henceforth be my honor to carry out.
ASSOCIATE JUSTICE SIR JAMES R. MURPHY, KtS
The author of this blog was appointed to the bench of the Grand Ducal Court of Westarctica by HRH The Grand Duke on November 29, 2020.
To learn more about Westarctica, visit https://www.westarctica.info/