Lottery election between history and objections

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Pixabay (Paulo Diniz Diniz)

A popular initiative attracting a lot of people proposes to appoint federal judges. This is not a new idea for elections. Already in 400 BC it was used by drawing lots for designations on administrative and government positions in Athens. This system was used as alternative procedures for the appointment of a doge in the Republic of Venice, as well as in many Italian cities during the Renaissance.

The method is still in force in some countries for the selection of popular jurors. The idea has come back into vogue in recent years with streams of thought that have criticized democracy, particularly the weaknesses and loss of authority of political parties, highlighting the ignorance and incompetence of voters and the phenomenon of absenteeism. Underlining.

With “Against Elections – The Case for Democracy” published in 2016, Belgian intellectual David van Reebrueck advocated a solution to the draw as an alternative to the popular vote, arguing that over 3,000 years of history, democracies have been forced to hold elections. Haven’t had to resort to. by the vote of citizens. We come to the resolution on which we will vote on 28 November, which criticizes the current system of election of judges by Parliament because in its current forms it prevents the appointment of candidates without party membership. At the same time, he argues that the draw would guarantee greater independence on the part of elected officials.

Federal judges elected by lot?

They are certainly flaws, but there are much more serious shortcomings in the resolution of the draw, and the negatives are not fully exposed in the situation and proposals for rejection drawn up by the Federal Council. In my opinion, there are two major obstacles which the initiative has been unable to overcome. The first is qualification. A degree in law is certainly not enough to aspire to the position of a federal judge. But not even a lawyer’s license. As with all professions and professions, categories have valid and less valid exponents.

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But not only that, excellent lawyers are also not necessarily good judges, the characteristics of the latter being the balance, the ability to be equal, to allow themselves to be influenced as much as possible by their feelings. If we refer this assessment to a democratic platform representing the various forces of the country and let the parties prepare candidates despite all possible loopholes, we can expect that the decision on candidature takes these aspects into account. Is. Political leaders may not pay attention to all this, but the dice of the toss is even less. The second objection is even more conclusive. It cannot be denied that in the field of judiciary also there are different streams of thought and philosophical orientations, even opposing ones. The notion and conception of their own mission is contrasted among magistrates, who believe that their role is to properly enforce the law and who aspire to have greater power and sometimes replace the legislator with laws with their own jurisprudence. update or renew. There are also different concepts of subordination or otherwise to international courts. Conflicts between the constitutional courts of individual EU countries (including influential ones such as Germany) and the European Court of Justice are occasional. Concept, defense, boundaries of sovereignty come into play.

Adopting or not adopting foreign jurisprudence can be a way of doing politics in the country. But there is much more: jurists at the level of the High Courts contribute to the spread of convictions in favor of different streams of thought and in the formation of public opinion with their dutiful participation in the nation’s cultural debates. The various philosophical orientations at the core of the concept of the act of law must not be forgotten. Those who follow the teachings of Hans Kelsen (1881–1973), who see the origin of law in the state as simplified, will allow the public interest to prevail over the interests of the private sector. The “natural law” attitude which is based on the belief that rights are natural and must prevail over law that descends from man, is quite different. There are differing tendencies within this ideology, including those of the Scottish publisher John Locke, later shared by Kant, on the basis of liberal thought. These divergent concepts, these multiple sensibility, are the richness of democracy, with a balance of dignity and judgment of debate. But he does not know how to take into account the draw, which can result in a serious imbalance. Yes, to state once again, it is not that parties and politics excel every time in the sense of responsibility and seriousness of the proposals, but in spite of their imperfections they represent various necessary and useful sensibilities, sensibilities of the country Those who do we cannot ask for the draw dice.

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Published on CDT and reproduced with the consent of the author and the newspaper

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