home | history | science | funny | thouhts

November 16th, 2010 by Lushfun

Judges and the Swiss

One of the main reasons for the Swiss Confederacy forming was the enforcement of self-judging. Let me elaborate the original three cantons wanted to have judges that they elect from the community instead of the ones provided by their overlord, ergo Rudolf King of the Germans at that time I think. Their argument was that since they are free and the judges are not, therefore they are being judged by someone beneath them in rank which should not occur, Rudolf agreed and allowed them to choose the judges from among their ranks instead.*[p251-253]

Now notice, they are not independent, all they did was assert some sovereignty over how justice is carried out upon them. If we look at it from today’s perspective we find it hard to relate, but if we think about it makes sense. Judges from the community will be hard-pressed to harm it IF said community is united behind what they deem lawful enforcement. Notice it is not what the state or the sovereign deems lawful by edict that is carried out in this community perhaps a great distance away through these justices but what the community does since they are united by an oath to do so. So if the sovereign all of a sudden declares that all their lands are his and dispossesses them, the judge will not have the backing of the community to enforce it and being part of it would not be allowed to do so. Law here is not based on interpretation or what someone writes that they vote upon some place far away but what the community will bear upon itself.

Today we have mandatory sentencing which takes away the right of the Judge to administer Justice for which he becomes elected but said community, ergo the law from far away supercedes the elected will of the people on the local level. Perhaps it will change in the future but until the people realize that forcing their will has to go from local level upwards instead of national elections which for the most part are meaningless since your vote is diluted by time, distances, and prorate among the others whom voted. Your power from affecting one official who deals with you directly with vast authority[judging] to many officials who deal with you indirectly[legislating] with marginal authority is considerably ratcheted downwards.

People ignore the Judges they vote for today and the tenures are far too long with a decade being very uncommon. You shouldn’t need a J.D. to be a judge, especially an elected one, but most are pedigreed and so intertwined with the bureaucracy they serve instead of the people that elect them. It seems inconsequential and ignored on the ballot but the power of electing someone local and whom you know, a person who ignores the myriad of written regulation and defends the populous against the tyranny of the bureaucracy at large. For now we still have double jeopardy on our side and a judge that sets one free cannot have his verdict overturned, at least for the present.

*Oliver J. Thatcher, A Source Book for Mediaeval
History. Selected Documents Illustrating the History of
Europe in the Middle Age [1905]

Historical/News/Opinion Links

Historiography

Archive