The Third Branch
Guest column: The difference between law and justice
Judge Gary E. Sherman
By Judge Gary E. Sherman, Wisconsin Court of Appeals, District IV
There is a difference between law and justice. I think about this a lot and, as a judge, it bothers me a lot. We are in the business of law, but that does not mean that we are in the business of ensuring justice. Law does not necessarily lead to justice, but the one thing that keeps me from becoming totally discouraged is an abiding faith that without law, justice is very, very unlikely, if not impossible.
Law, meaning courts, did not end slavery, nor stop the genocide of the native peoples of this continent, nor prevent the internment of the Japanese-Americans during World War II, nor prevent boatloads of Jews from being sent back to certain death in Europe. Someday, actions that are taken today, like the incarceration of an unprecedented percentage of young black males under the law, may well be recognized as the same kind of injustice as the others named in this paragraph. No matter how nefarious a government action, if it maintains the forms and procedures of law, courts are powerless to prevent, and often act to facilitate, injustice.
The usurpation of power by the Nazis in Germany is a clear case in point. Earlier this year, I was fortunate to attend a program put on by the United States Holocaust Memorial Museum through our judicial education program. That program showed how the courts in Weimar, Germany had the opportunity to stop the usurpation of power by the Nazis, but failed to seize it.
People seem to have the misconception that Hitler was elected to power in Germany. I don't know where they get such nonsense. Hitler ran against Paul Von Hindenberg (a World War I hero) in 1931 and lost very badly.
Germany was a mess. The country was falling into general street violence, mostly between the Nazi SA and the Communists. The country seemed to be on the verge of civil war. The Great Depression and the Treaty of Versailles left the economy in ruins. So, in the election following the presidential election that Hitler lost in 1931, the Nazi party gained a lot of seats in parliament (Reichstag), becoming the largest party, though still a small minority in the Reichstag. So, Von Hindenberg and his close advisors decided that appointing Hitler as Chancellor (Prime Minister) might cause him to moderate and reduce the level of violence that the Nazis were causing. Boy, were they wrong.
Almost immediately, the Nazis in the Reichstag began to get laws passed that were serious usurpations of power and counter to the Weimar constitution. At this point, the Nazis were still weak. The invasion of Poland in 1939, which began World War II, was still six years in the future. The Wannsee Conference of 1942, which planned the Holocaust, was three years beyond that. A strong stand by the courts at this early point could have ended the whole affair. Instead, the courts backed down. Here is where the difference between law and justice comes in.
The various laws and decrees that converted the Weimar Republic into the absolute dictatorship of Nazi Germany all had the appearance of law and seemed to conform to the forms and procedures of legality. The courts didn't know what to do about it. And the rest, as they say, was history.
Any judge who can think about this and not feel a chill run down the back of his or her neck is hardly worthy of the robe.
Every judge I know strives every day to uphold the law. By and large, we succeed. When I review appeals, I am generally amazed at the high quality of the work that circuit judges do. In the crucible that is a modern circuit court, our judges overwhelmingly make the right decision under the law and, in addition, make a record for review that clearly and intelligently explains their reasoning. And our appellate courts adhere to the law like duct tape, most of the time.
Yet massive injustice persists.
I don't pretend to know the answer to this paradox, but I do know that I am troubled by it every day.