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WHEN a judicial ruling is issued in the spirit of the law, and not just by dry text, then it becomes an added value and an advantage for the rest of the judges in a manner that establishes justice.
When the ruler is aware of the conditions of the people, he works as per what the reality requires, and not based on the confusions of some advisors.
The occasion for this introduction is an incident that happened years ago in one of the American counties.
An old man was brought before a judge on charges of stealing a loaf of bread. He confessed in court to what he had done, but he justified it by saying, “I was starving, and I almost died.”
The judge replied, “You know that you are a thief, and I will sentence you to pay a fine of ten dollars. I know that you do not have it because you stole a loaf of bread, so I will pay it for you.”
The entire court room went silent as those witnessing the court’s session saw the judge taking out ten dollars from his pocket and ordering it to be deposited in the state treasury to cover the fine of the old man.
The judge then stood up and ordered everyone in the room to pay ten dollars, accusing them of being in a town where a poor person has to steal a loaf of bread to sustain his hunger. The room contributed a total of 480 dollars which the judge awarded to the old man.
In history, there have been a significant number of cases that were handled by the judges in this manner.
For instance, the American judge Frank Caprio is known for seeking to apply the law in a humane manner, and avoiding as much as possible to impose fines and issue rulings that can cause suffering to the convicts.
He once said, if he suspected the presence of compelling circumstances in the accused or that his life was threatened, he accepts the validity of his interpretation because it cannot represent the rule of law, and judge a person for what he does not deserve.
Prior to the organization of the judiciary in the days of Harun Al-Rashid (the fifth caliph of the Abbasid Dynasty), the sheikh of the tribe was in charge of the judiciary among the Arabs. He replied on the custom and traditions prevailing among the tribes that did not know legislative authority, and on the meeting of the Arab tribes under the banner of Islam.
The Quran made the Messenger, Mohammad (PBUH) the first judge in Islam, and then authorized some of the Companions to judge, and deputized some of them in the country, but without naming them as judges.
At that time, the circumstances of the people and the country were taken into account. With the modern state and the enactment of legislation, the text became the standard of the behavior of the judiciary. Because the judge rules according to the law before him, some unfairness was found in the rulings in various Arab provinces because the judge is restricted by the text.
There are many civil cases related to the debtors who resorted to borrowing only because they fell into the clutches of need either for the medical treatment of his wife or children, or for completing the education of their children or for building a house.
Given that the law is rigid and does not think about the spirit of humanity, this is why the judiciary found some solutions through practice, including refraining from pronouncing the sentence and using the judge’s spirit of law; but in most cases, it is governed by the text.
Hence, mitigating reasons were found, but they were not enough, as it leads to an increase in the suffering of the debtors because physical coercion such as seizure and habeas corpus, travel ban, and referral to prison pushes the convict to violate the law, and thus increases his suffering in search for work in order to pay what he owes and to continue living.
In this matter, it becomes the duty of the ruler, in his capacity as the custodian of society who looks after the affairs of the state and monitors the implementation of laws through those whom he appointed to perform this duty, to work on urging legislators to develop laws in accordance with the living conditions in the country. Hence, in many cases when the judge who finds himself before a dilemma, he has the text of the law and can take into consideration the humanitarian situation.
For example, years ago, physical coercion against debtors was something that some could benefit from, by implementing “seizure and habeas corpus” against the debtor at the end of the week and bringing them to court on the first working day. The judge found it difficult to reconcile the humanitarian condition with the law, and so he resorted to discretion.
However, when the law is clear, as it is in force in various countries of the world, that civil cases do not restrict a person’s freedom, then everyone can fulfill what they owe through diligence and work.
From here begins the task of the ruler to impose his will on everyone, especially those who are interested in enacting legislation based on a humanitarian basis, like the way it happened in the story of the judge and the thief of the loaf of bread.
By Ahmed Al-Jarallah
Editor-in-Chief, the Arab Times