Judgments of love in criminal justice

Farhad Malekian Judgments of Love in Criminal Justice Judgments of Love in Criminal Justice Farhad Malekian Judgments of Love in Criminal Justice Farhad Malekian Institute of International Criminal Law Uppsala, Sweden ISBN 978-3-319-46899-0 ISBN 978-3-319-46900-3 DOI 10.1007/978-3-319-46900-3 (eBook) Library of Congress Control Number: 2016958570 © Springer International Publishing AG 2017 This work is subject to copyright All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland To my mother the blind Lady Justice To my father the Gavel of Justice And my tribute to the dearly beloved perpetual bouquet 0214 and our buds 0912, 0623, 0604, 0308 Kapca Preface I initiate and end almost all of my lectures and examination questions with the phrase “with love and respect” This phrase brings all students close together and encapsulates the raison d’eˆtre that the lectures highlighted a tangible award for the understanding of law I most often received a standing ovation from the students as I stood in front of them with the globe of love While teaching law courses to inmates incarcerated in one of the notorious Swedish prisons, the Anstalten Kumla, I decided on one occasion to deliver a lecture face-to-face One of the head guards drove me to the prison and asked me if he could give me some information about my students and the crimes for which they had been convicted ‘No thanks’, I replied He repeated his question again My answer was the same He ultimately decided to tell me, even though I did not have any curiosity to know I succeeded in not hearing his words with a variety of tricks While driving me back in the evening, the guard wished to confess about our meeting in the morning: “if you would really like to know my heart’s feelings, I would like to open all those gates, take down the whole of the barbed wire, and free all those poor boys What we are doing against them all is much more unrealistic than what they did against us The period in the prison will not serve to teach them love, but hate.” My late father was and is my true academic campus It was he who irrevocably tutored me not to lose “self-restraint.” My ethical philosophy in a nutshell is that the spirit of the law has to be good; the metaphysical elements of justice have to be rational; the basis of morality has to be to serve without expectations of gain; faith in humanity has to rise from the chambers of a compassionate heart; and the purity of loving brotherhood/sisterhood/family unity is under no circumstances for sale Using any form of power for personal advantage not only falls short of the spirit of the rule of law but humiliates the integrity of the dead and the victims Regrettably, a number of lawyers in the field are not only millionaires, but even multimillionaires—the innocent victims and ‘human rights law’ itself have become the cargo of vii viii Preface incomes Nietzsche correctly says, “Of all that is written, I love only what a person has written with his own blood.” I have suffered far too much and far too long for the voice of justice and love in one of the most well-known democratic countries in the world My irrevocable decision is that justice is not for sale Nelson Mandela, a lawyer by profession, aptly asserts, “The greatest glory in living lies not in never falling, but in rising every time we fall.” The American lawyer, Martin Luther King, the composer of songs of spiritual love and the originator of I have a dream reflects that “life’s most persisting and urgent question is: What are you doing for others?” Similarly, the Indian lawyer, Mahatma Gandhi, correctly puts “you must not lose faith in humanity Humanity is like an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty.” And, ultimately, Professor Mohammed Mossadegh, a Persian father of democracy and human rights, a friend of my own father, thoughtfully demanded of himself, “If I sit silently, I have sinned.” Those who love justice with truth have to suffer There cannot be words adequate enough to communicate my heartfelt appreciation to my four sisters who have devoted all their love in order that I survive after a sequence of undeserved tragedies in my life I am deeply thankful to Professor Albin Eser, the former head of the Max Planck Institute of Foreign and International Criminal law (MPI) and a former judge at the ICTY, for his comments and his valuable time It is important for me to state here that he is not only an established positivist but also, having substantive knowledge of naturalism and righteousness in his writings, a wholly trustworthy person I would also like to extend my sincerest personal thanks and admiration to the brilliant philosophical knowledge of Professor David A.J Richards from the Faculty of Law, University of New York Richards is the pioneer of a faculty of love against injustice However, responsibilities for errors remain mine alone I also wish to extend face-to-face my sincere thanks to Dr Johanna Rinceanu, who I may call ‘the MPI angel’—a woman of great intellectual substance, integrity of knowledge in criminal law, as well as being at once gentle like soft water and vivacious like a waterfall Her Italian husband must be proud to have her at the centre of their family unit For the friendly discussions of law, I thank the professors of criminal law in the Departament de Dret Penal, Facultate de Dret Universitat de Valencia They are Professors Emiliano Borja Jime´nez, Asuncio´n Cola´s Ture´gano, Dra Elena Go´rriz Royo, Ricardo Juan Sanchez, Juan Carlos Carbonell Mateu, and Alberto Alonso Many other professors of criminal law and researchers all over the world have encouraged me that writing this book constitutes a duty for the treatment of the ill body of our criminal justice They have my full thanks I am also deeply thankful to Anke Seyfried, the law editor at Springer, for her efforts and cooperation in the publication of this volume Thanks also to the very positive cooperation of the librarians at the MPI, particularly Mrs Elisabeth Martin Preface ix The Islamic political philosopher and jurist Al-Farabi, who is known in the West as Alpharabius (872–951), concludes that “a just city should favour justice and the just, hate tyranny and injustice, and give them both their just deserts.” Alexander Pope, the English poet (1688–1744), expresses the same sentiment in his proclamation, “curse on all laws but those which love has made.” Farhad Malekian Accomplished in the Institute of International Criminal Law, Uppsala, Sweden Departament de Dret Penal, Facultate de Dret Universitat de Valencia, Spain Max Planck Institute of Foreign and International Criminal law, Fribourg, Germany February 14 and July 23, 2017 Introduction Most national, regional, or international conflicts, in which millions of people in the world lose their lives, are the result of the misapprehension and misinterpretation of the law and the absence in the rule of law of love for human beings, for justice, and for real democracy.1 This is the truth: justice and love What separates us from the strength that allows us to love humanity, and instead leads to the enforcement of the system of international criminal law, is the ideological use of force, which saps the power of love and trust between groups, nations, and states and leads to everincreasing conflict between nations.2 This means we ignore the moral obligations, whether integrated into our culture or natural law, which we ought to perform.3 It is at such moments that we have to teach law with love in order that the future generation of lawyers and judges will realise that peace with justice can never be achieved as long as the concept of law is not performed and interpreted with love They have to promulgate these principles to convince the population of the world that alienable rights, law, and love are an integral part of one another, and the science of law is incapable of adequately describing any of them in the absence of the others Although we understand that love is not equivalent to law, it has a particular sense within the human mind that orients the role of objective justice towards achieving the protection of our essential humanity That is why the appropriate Islamic law says, ‘if they kill, this does not require that you kill The spiritual gratification, which exists in forgiveness, does not exist in revenge.’ One may compare the institution of forgiveness in the relevant law with the institution of non-trial justice, truth and reconciliation commissions, amnesty, and restorative justice “Humanity is not saved by ideological manifestos, but by the ‘acts/of kindness and of love.’”4 Mohammad Taghi Malekian, The Voice of Zanjan (the Newspaper published by my father in Persian language – the chief editor, 1952–1953) Ibid Ibid Ward (2001), p 941 at 946 (citing Wordsworth 1977) Cf Ruiz (1999) Consult also Lessa and Payne (2012) xi xii Introduction The United Nations’ educational system therefore has a leadership responsibility for teaching law with an attitude of love in all angles of its remit The objective is to make the people of the world conscious of the horrendous consequences of violations, aggressions, or resorting to the use of force against them As Bertrand Russell aptly puts it, “The good life is one inspired by love and guided by knowledge.” Here Russell means surely, inter alia, that even if we have the freedom of expression to hate one another, it is our duty, in the first instance, to obtain knowledge Although Shakespeare did not study law, his discussions of the law show a profound knowledge of legal terminology and a sympathy with the universal principles underlying the rule of law, whether in Europe, the United States, or in the Islamic world “The first thing we do, let’s kill all the lawyers,” that is, if they not express love for the pure philosophy of reasonable justice “When law can no right, let it be lawful that law bar no wrong: Law cannot give my child his kingdom here, for he that holds his kingdom holds the law.” This passage highlights two significant questions for our discussion: what are the reasons behind the use of force by administrators of public international law? In addition, why is the system of law concerning the identification of the use of force monopolised by the legal provisions of the United Nations and the ICC? The answer to both questions may simply be that what is really missing in the process of justice is love of law for the sake of human dignity and the truth In addition, the new generation of lawyers ought to be educated to realise that the canon of real love for humanity in the world does not come from International Human Rights Law, the International Humanitarian Law covering armed conflicts, genocide, torture, and apartheid or discrimination treaties Neither does it arise from the regulations within the Statutes of the International Criminal Courts or tribunals, or the provisions of other criminal laws but by the prevention of violations from the very infancy of their existence with the strength of love of justice for one another Therefore, this work introduces the norm of love as the most significant norm of law, criminal law, and criminal justice Following this approach, we will advance towards real justice, develop our knowledge, and secure the future generations of humankind from the consequences of criminal activities Personal interests have to be accounted for nil if justice with love is going to survive for all of us References Lessa, F., & Payne, L A (2012) Amnesty in the age of human rights accountability: Comparative and international perspectives Cambridge: Cambridge University Press Ruiz, D M (1999) The mastery of love Ward, I (2001) Universal jurisprudence and the case for legal humanism Alberta Law Review, 38, 941 Wordsworth, W (1977) Lines composed a few miles above Tintern Abbey In J O Hayden (Ed.), POEMS .. .Judgments of Love in Criminal Justice Farhad Malekian Judgments of Love in Criminal Justice Farhad Malekian Institute of International Criminal Law Uppsala, Sweden ISBN... of the Norm of Love in Criminal Justice 4.1 Rule of Love on Criminal Justice 4.2 Criminal Dimensions of Love 4.3 The Monopolization of the Rule of. .. concepts of criminal law and the anatomy of the significant positive influence of love in the system of criminal law It provides the first primary definition of the concept of the norm of love in the