The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview
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D. Political Judges

1. Soldiers of the Law

The notion that a judge is "a soldier of the law" appears when there is a criminal conspiracy that not only threatens to disobey particular laws but also threatens judges themselves as its targets. Judges in Italy found themselves in this position when the Red Brigade, a terrorist organization, was active in the 1960s; and they found themselves in this position in Mafia-dominated Sicily in the 1970s. Similarly, the judges in Colombia were directly in the line of fire when the Colombian government attempted to put down the great illegal drug rings of the 1980s.

Otto Kirchheimer, a German political scientist, has commented on the metaphor of soldiers in Political Justice ( 1961):

But despite this unavoidable ambiguity of his position as bonded defender of existing institutions and the guarantor of their fairness, there is not much merit in the often-heard epithet, "soldier of the law." Those who invoke it most consistently never doubt that it refers to the judge's duty to underpin with his authority the action of the existing power holders. But even if maintenance of the public order forms part of his function, his services would become meaningless if he were to act as a soldier. While both the soldier and the judge owe loyalty, the different objects of their loyalty--the hierarchical command and the mandate of the law--condition differential loyalty structures. In the hierarchical chain of command a soldier obeys orders which he may reject only in extreme and manifest situations of illegality, and then only at his own risk and peril. The law is not a chain of command and knows no soldier to execute its orders. Being a directive toward reasoned investigation, interpretation, and consequent findings, it requires something other than the devotion of an activist. The latter creates a new reality; the judge, acting in most cases on a situation created by others, grants or withholds legitimacy.


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