The nature of judiciary, of judicial systems, corresponds with the nature of human judgement, associated with the striving for justice; a balance of what is right to be enacted within society, as far as contractual perspectives on individual conduct, compared to when through these deeds, these contracts are violated. When assessing the background development of judicial systems however, the focus of what is inherently right, on a moral level, is only a very small part of the process in enacting judgement, in the pursuit of so-called justice.
Throughout Europe, early Roman Law established a significant basis of judicial systems which existed under its empire, infused in many cases with local tribal customs over the centuries, whilst in England common law was established in the medieval period, until further codes were introduced within the late part of the early modern era. If we were simply to associate judicial systems with the classical notion of democracy however, or any construct of democracy in its broader form, one could say that the Viking Icelandic Althing parliament meetings in the early Middle Ages constituted to many a ‘democracy’ of sorts could be referenced, with the extremely barbaric use of retribution based violence existent in the societies judicial systems generally, demonstrating that judicial systems and human rights, are not just dependant upon the most basic premise or propagated idea of democracy, but they reflect a higher level of civilisation if enacted properly altogether.
The rule of law, Habeas Corpus, innocent until proven guilty and a fair trial are merely bedrocks for civilised judgement and not the basis of what constitutes any enlightened system. Judicial systems therefore, require if enlightened, to not just be focused on the idea of breaking a social contract, with the aim of punishing an individual for doing so, and enacting retribution, but almost the opposite should really happen in adherence to the rights of man beyond social contracts. Retribution as a psychopathic like construct of justifying egotistical aggrandisement through eradicating ones suffering by enjoying the suffering of the individual who caused it, has no place as an organised element of any civilised society. Whilst this may be universally understood on a professional, ethical level, for scholars, by devout religious followers or religious institutions, and those concerned with justice, theoretically, on a subliminal level, particularly within our psyches, this is something which still exists in society, even at an institutional level.
Whilst justice may seek for righteousness to be exercised through acknowledging misdeeds being committed, and the condemnation of such deeds through deprivation of liberty for a period by those who committed them, there should also be the focus on rehabilitation, and the idea that a person should not ever be universally condemned, even for the worst of crimes. Such individuals should also not be given benefits without earning them as part of psychological treatment, with any benefits only being made available to criminals who demonstrate genuine change, and empathy regarding their actions, often through the use of psychotherapy.
The most advanced judicial systems in usage today utilise the notion of threat to society through psychological testing to determine whether a person in prison has been rehabilitated, in the context of constant methods in psychotherapy, deprivation of recreational outlets where no rehabilitation is occurring, and certainly prevention of any convicted person enacting any further crimes, assaults, or guards participating in any corruption in this regard, to ensure that development, and rehabilitation occurs, as opposed to merely punishment, in which when or if the person is released, they do not recommit a crime. In the case of individuals who show psychopathic traits and who justify violence they enacted, and have no interest in therapy, in many was akin to many who would support retribution-based violence for breaking codes in society, other factors should be considered, such as confinement until the person no longer has such psychopathic traits and no longer poses any threat to society.
Upon the basis of psychological testing by experts and such expert standards infused at policy level as is seen in many advanced countries, and not by reactive punitive responses at policy level, more effective processes can be enacted. It is not only a practical and pragmatic incentive for such systems to be adopted universally as they are in Scandinavia and Germany, and to a smaller extent in Britain, but there is additionally, perhaps more pertinently on a universal level a moral one to be considered by society at large more broadly. Not morally as regards the concept of a social contract, of culturally constructed morality as disassociated from real society from a clinical outlook, but sociologically, upon the premise of the foundations of civilisation, within the modern world which was so strongly infused with Christian principles, mirroring and concurrent with principles of other great religions, in a non-fundamentalist context.
The creation of Christianity saw with it as espoused by Christ, without any interpretation from dogmatic reduction, a focus upon compassion, of forgiveness and the possibility of transcendence of one’s sins. The central focuses of Christianity, beyond the limiting of these scriptures as tied into the early Roman Church and subsequent Medieval period, and as retained by some fundamentalists, were concerned with not judging, but forgiving, as Christ said people ‘’do not know what they do’’.
If one was to extrapolate this further, one might ascertain that in the context of most criminal acts as perceivable by any report in any society, the driving factors behind breaking civil codes for many are mere desperation, and often infused with circumstances whereby the individuals mental state was not necessarily stable. The worst of the worst of criminals are those who enjoy enacting violence, whether it be through perverse pleasure of another’s suffering or through cold hearted operating within the parameters of blanket judgement of right and wrong as seen in many underworld criminal codes, falling out of which or breaking such codes can warrant extreme punishment, sometimes extreme violence.
This nature of retribution, black and white codes and enjoyment of violence is essentially what has been the history of human civilisation, or periods which weren’t that civilised rather. More pronounced during periods of dark ages, or where civil codes, religious protection and human rights were lacking. This today is a criminal trait associated only with criminal underworld culture, or those too perversely confused to differentiate themselves from this, and not a part of normal society in the west. This in itself surely represents the importance of the universal adopting of more advanced judicial systems to reflect popular culture of the progressive mainstream west, in line with countries which have the highest human rights and democracy indexes.