Jens Bjørneboe, “Har Juristene Sjel?” (1966) Norge, mitt Norge, 1968. Samlede Essays: Kultur I, 73-78. ©1968, 1976 by Pax Forlag A/S. English translation ©1998 by Esther Greenleaf Mürer
Daumier has occupied himself with the conscious life which presumably stirs within the servants of justice; his production teems with judges, prosecutors and defenders. Next to the Actor, the Jurist was his favorite prey; he drew them from the front, from the back, in profile and from below, in tears and in wrath, in defeat and in triumph. The stage and the courtroom are two sides of the same thing: it is The Great World Theater which is played out in both places, and Daumier always sees the performers with equal clarity: It is the false pathos, the phony compassion, the simulated justice which he captures and displays. He sees in the courtroom an exhibition of hired defenders, paid prosecutors, and bought judges.
Bought and paid judges in an everlasting farce.
Let us stop here for a moment. Law and justice are not objective, universally valid concepts, but are on the contrary are sorely changeable and relative things. The judge is bought and paid by the society which employs him: if he is paid by Franco's state, then it is Franco's laws he judges by, if he was bought by Mussolini's state, then he judged by Mussolini's laws, if he's a judge in Russia, he judges by communist laws, if he was a judge in Hitler's Germany, he judged by Nazi laws, if he gets his salary in California, he pronounces the death sentence with good conscience according to California's laws, and if he is a hireling of an ordinary middle-class society, then he judges as the decent man he is, according to the middle-class society's laws. No matter where he judges, and by what laws he judges, he is a respected, decent man, an indispensable pillar of society, a splendid citizen.
Nothing is so misleading as the expression “impartial judge.”
An impartial judge, that is one who judged objectively, and didn't obey the masters he happened to serve, would immediately be removed from any bench. Ach, what is true in Berlin and Jena is only a bad joke in Heidelberg!
Let us say that a judge were to go and become so Christian that in his handling of cases he began to practice the view “let him who is without sin cast the first stone!” Not least the theological faculty would demand that he be put in a nerve clinic; for whoever meant that anyone should go taking their Christianity with such irresponsible seriousness?! Legal concepts revolve not around the law, not around The Eternal Law—but around the laws which were made by a random assembly of our grandfathers and fathers, by the society which has paid the judge to judge the way the arbitrary laws tell him to. Actually it's always the society which is the injured party in the case, the person who happens to have been robbed is only a provisional victim; it is the society which must be conserved—and the judge is in reality the representative for the case's injured party, for the threatened society, for all who haven't yet been robbed, but who might be the next time around.
This farce of hired defender, of paid prosecutor and bought judge is what Daumier sees into; and he finds in the whole circus only one who is acting genuinely and honestly, only one real human being: the accused. The whole legal world of paper and outmoded laws, of abstract chess games, is for this one participant a true and dangerous reality, life and existence. Every paragraph of the law is a predator against him. The other side of Daumier's mockery of the jurist is Daumier's sympathy for the person who has called down this flock of wolves upon himself. All that is outmoded and inhumane and unjust in the laws, he alone shall pay for with his flesh and blood.
His chief enemy is not the prosecutor; his worst opponent is the “impartial” judge, who is paid precisely to be a party in the case, to be wholly and absolutely partisan in favor of the time-and-place-bound justice which may have been violated by the accused.
In earlier times the laws were sacred, because they were handed down through the priests, who in turn had received them personally from the gods. They were sacred and not to be tampered with by humans. Today it is somewhat different. Very few jurists would disagree if one were to maintain that, let us say: It is not Jupiter who has instituted the vagrancy law. They would declare themselves in agreement with the claim, but they will continue to apply the vagrancy law as if it were instituted by Jupiter, just the same! The vagrancy law is a randomly chosen example of an inhumane and outmoded law. There are many others. But it is precisely in the jurists' attitude to disgraceful laws that you meet the qualities which can reveal the spiritual life of jurists as a mystery.
Under the headline “Five kroner and half a bottle of export,” Dagbladet called attention awhile ago—as a lead story—to a 64-year-old man who was sentenced to two years in prison for having stolen half a bottle of export beer, along with 5. kroner [less than a dollar] in cash. If one doesn't feel such a case as an absurd injustice, as a purely surrealistic sentence, one must either be a dimwit or ... gosh, I almost said: or a jurist! The juridical reaction will normally be something like this: Well, the man had of course been convicted so and so many times before for crimes against property, and besides it was technically a burglary he had committed, and so the sentence is in line with usual practice. Hallelujah! And who can do anything about usual practice?
Unfortunately this sentence most certainly corresponds both to law and to practice. A systematic investigation of sentences in recent years would surely bring even more unbecoming situations to light. And what is the background for this? To punish a petty theft with up to several years imprisonment must be a legacy from the Middle Ages, since it has nothing to do with modern ideas of justice. How does the victim, the robbed person, feel when he hears that the man who drank half a bottle of his export beer has been sentenced to two years in prison? How does the judge feel?
One image in particular comes to me when I think of Daumier's depictions of life in the courts: The man who stands accused of stealing a loaf of bread. He is skinny and ragged and unkempt and wild, and two strapping young constables are holding him fast in front of the well-fed judge in the case. The judge leans back in his chair and regards him sadly, as he says:
“But how could you think of doing such a thing? It would never occur to me to steal a loaf of bread!”
It doesn't make the story obsolete to say that social conditions have improved since Daumier's time; people no longer need to steal bread! So if a person in the kingdom of Norway today steals half a bottle of export, he does it out of viciousness and malice, and he jolly well deserves what he gets! Daumier's little drama has a perfect relevance on the spiritual plane, and especially there. The main point is: “It would never occur to me!”
No, it doesn't occur to Judge Hansen. And it doesn't occur to me. Not to steal a loaf of bread. Hardly even to steal half a bottle of beer. In any case we're not about to steal an overcoat. However, that did occur to one of my acquaintances. And it will probably cost him several years. The story, in brief, is this:
He had been released on parole, shortly after having a serious nervous breakdown in prison which led to his being transferred to the prison hospital. When he got out, he hadn't yet managed to keep a regular job, his family lost patience with him, and he was soon on the skids. Well, so he stole an overcoat, and must now serve the rest of his generously allotted sentence plus a new one. You can orient yourself a little just by looking at the economic side of the case: He is a strong and able-bodied young man, and if at liberty in a sound and healthy condition would at least earn his 10,000 a year. After doing four years he has already paid 40,000 kroner for the coat. On top of that comes all the irreparable damage to his character and his ability to work which is the inevitable result of such long incarceration.
But how could he think of doing something so dumb as stealing a coat?
No one knew better than he did what it would lead to. He was quite clear about that, and he did it anyway! Both Judge Hansen and I can say in chorus: It would never occur to us!
And the man who reported the theft of the coat, did he know what he was doing? Probably not. The one who missed his bottle of beer, did he know what he was doing when he reported the loss? Probably not. But they will know it the next time they miss something, and then let us hope that as responsible human beings they won't report it to the police, because they no longer have confidence that the person arrested will receive humane treatment. That means that, if they are any kind of decent folk, they can no longer count on any protection against theft, because they won't be able to take it on their conscience to hand over a possible sinner to such a barbaric punishment. In other words: Law and justice no longer correspond. That is a situation which has arisen earlier, and it is the introductory phase to all reforms of criminal law. It is characteristic that it arises in layfolk long before it is felt by professional jurists or people who are tied to the court- and prison system.
The man who knew how catastrophic the results would be for himself, and who nonetheless stole a coat—and this other man who had been convicted four times before, and therefore knew what another conviction of a crime against property would lead to, because he was surely aware that the sentence increases for every repeated offense—what actually going on in their minds at the moment they let everything go, and just took another man's property for the sake of gain? They knew about it. Yes, at some place or other inside their heads they knew what they were doing, but this consciousness was at the same time distant and weak, muffled by a state of spiritual debilitation and as a result of that possibly also by alcohol or drugs. In the abstract they knew about it—but only with a little part of themselves. It isn't possible to see it otherwise: A man who bets a couple years in prison against a fiver and half a bottle of beer, and a man who bets four years' imprisonment against a coat, must have lacked full consciousness at the moment of action. Otherwise they must have been insane, and don't belong under the criminal law at all, but under psychiatry. They didn't know what they were doing.
And those who reported the cases to the police? Both the reporters and the reported come under the category: “Lord, forgive them, for they know not what they do!”
That leaves only the judges, the learned representatives of justice: Did they know what they were doing, when they followed the law and sentenced them to these punishments?
The most aware is also the most guilty!
Myself, I would be inclined to say: No, they didn't know it either. Lack of imagination, mistaken concept of duty, narrow-mindedness and deficient capacity for empathy, the daily rut and routine, in short: Apathy and habit have made the judges, too, innocent and irresponsible in the moment of action.
And with that we are actually back to our point of departure, the title of this article: Do jurists have souls?
I think it must be answered with: Yes, they have souls, but it is different than with other people, in that the jurists' concept of right is not, as in ordinary folk, bound up with a moral complex (“Right-and-Justice”), but with wholly subordinate, technical questions of detail. The need for certain reforms in the criminal law is a matter of concern the whole country—with the sole exception of one population group: namely, the jurists!
And still one cannot shake off the feeling that those very servants of justice bear a greater responsibility on this point than we layfolk do. They just don't see it that way themselves.