Key Note Address at the Justice Charles Gonthier Memorial Conference organized by the Centre for International Sustainable Development Law, International Development Law Organization and the Mac Gill University Montreal, Canada.
18th -20th May 2011
It is indeed a great pleasure and privilege to be able to participate in these sessions which seek to commemorate, analyze and carry forward the work of one of the great judges of our time.
Listening to all the tributes paid to Justice Gonthier, my mind went back to what I had read about a famous event in legal history round about 1906 I think, when Roscoe Pound, the great American jurist, who was then a young law professor, was asked to address the American Bar Association. The American Bar Association had a great opinion of itself as being a promoter of law and justice and so forth, and Roscoe Pound was asked to give the after dinner address and these very prosperous American lawyers lit their cigars and took their glasses of wine and sat down to listen to Roscoe Pound who started telling them all the errors, and gave a litany of errors of the American legal system. The legal system had become narrow, had lost its perspectives, the law in the field was absolutely different to the law in the books, the lawyers were people who did not understand the greater social setting, they had lost the international perspective and that sort, and the meeting ended in confusion. That meeting and that talk made the American Bar Association rethink its basic assumptions.
Now, Justice Gonthier is a person who is cast in the same mould as Roscoe Pound. He is one of those personalities that arise once in a while to stir legal systems out of their narrowness of vision and their complacency and give them the broader perspectives. And when we realize today how narrow legal systems have got, how far they are distanced from the problems of the people, the enormous gap between the law in the books and the law in the field, the total lack of a universal perspective, the way in which law entrenches privilege and helps the rich. All these are circumstances which are present in the law but lawyers and judges are not really alive to them and they continue to become a means for entrenching these practices.
Justice Gonthier is one of the figures in Canadian legal history and also, I would say, in world legal history because he has drawn attention at the judicial level to the various weaknesses of legal systems and the various ways in which their narrowness needs to be corrected. Now if you think of the various aspects that he emphasized, one was this idea of brotherhood or fraternity of people. Another was the idea of sustainable development, another was the universalism of legal concepts. All of these are aspects that most lawyers and most judges have tended to forget, but he powerfully drew attention to them and in doing so opened the eyes of many jurists around the world to the wisdom that there is in so many different cultures across the world which narrow national legal systems tend to miss. So, there is a lot of work here to be done in furthering the ideas and the ideals of Justice Gonthier.
I am sometimes reminded of the story of three masons at work, building a wall of a church. There were three masons and a visitor came and asked the first mason what he was doing. He said, ‘Can’t you see? I’m laying bricks, that’s my dream. I’m laying one brick upon another, that’s what I’m doing, that’s what I’m paid for’. He asked the second mason, he said, ‘I’m helping to build a wall for a church that’s being constructed’. Then he asked the third mason what he was doing. He said, ‘I’m assisting in building a cathedral for the glorification of God’. Now I think lawyers can be divided into three categories. Those who are the narrow brick layers, they only work on one case at a time, that is all they see, that is the limit of their vision. They do not take in the broader perspectives. The second group realize that what they are doing is something which is a part of a greater legal system which gives stability to the country and that is the limit of their vision. There is a third category, and this is extremely rare, of people who see or have a vision of law in all its glory, the law is a most wonderful discipline and can work wonders for humanity.
Unfortunately, the way it has been administered and practised, it has totally failed in that responsibility and the Gonthiers who come up from time to time in legal history rouse the world from their slumber and awaken lawyers to their responsibility. So that is the man whose work we are celebrating today and it is our business to carry it forward and how do we carry it forward? We have got to think of how that glorious cathedral of justice which he was a participant in building and fashioning, how that can be built. So there are various institutions he has left behind, and various thoughts and ideas he has left to the legal profession. CISEL is one of those institutions which is hard at work trying to give form to the wonderful ideas of Justice Gonthier and one of these is the idea of fraternity.
Now let us look at this in a universalistic way. Now there is this ancient Indian wisdom which tells us that humanity is not like so many hundred or million grains of sand. Grains of sand are there but they are separate and distinct entities but human society is not like that, it is not an organization of separate individuals but an organism, it is something which is integrally connected. All the component elements, that is, all the members of the human family are integrally connected with each other. What each one does has an impact on everyone else because we are all members of one living organism, human society, and that is what we have to further and we lose sight of that if we think of ourselves as separate grains of sand. Now Rama-Krishna and other Indian philosophers have expanded on this and shown us human society in its totality as a living organism and not as a series of distinct individuals that are separated from each other like grains of sand.
Then we have the law in the books and the discrepancy between the law in the books and the law in the field. The law just concentrates on the letter of the law. Lawyers make that mistake to a very great extent and the perspective of how the law fits into the needs of society is lost sight of. Society is developing. All sorts of disciplines like the sciences are growing and changing the background completely, the background against which human beings live and laws were fashioned for a society where all these factors did not exist. We have got to have a vibrant law, we have got to have a set of judges with vision who can develop the law to meet the needs of a new society. This is something that again we have got to think about.
Then we have to think about the universalism of the law. We are one human family, all linked together. There is a piece of wisdom from ancient Buddhism which I should tell you about. The Buddha said that every living species on the planet has got so many sub species within it. You take an earthworm or a butterfly or a lizard or a fish or a bird, whatever form of life you take, it has so many subspecies, but the human race is one. He said that 2500 years ago and that is something from which the law can benefit a great deal and although there was that wisdom 2500 years ago what does the human race do? With no divisions made by nature, there are divisions of race and caste and creed and nations and so on and ultimately the result is a total mess. Law and order break down completely and the law which should have been an instrument of preventing this has been entirely silent. On the contrary it has even provoked some of these divisions and has remained silent. When slavery was rampant, what did the lawyers do? They endorsed it. When imperialism was ravaging the countries, ravaging the possessions of other people, and appropriating them, what did the lawyers do? They endorsed it. When apartheid was there in South Africa, what did the lawyers do? They supported it. So all this results from a lack of vision on the part of lawyers which people like the judge whose work we are celebrating today can move us out from, can move us out of this rut into which the law has fallen into and give us the benefit of a wider perspectives that he was able to see because of his universalistic vision. Here again I must draw attention to the fact that law has become an isolated discipline. It has closed within itself the wisdom of philosophy, sociology, religion, morality, all those are not taken into account by the lawyers and those who fashion the law.
Consequently we are in a state where there is an enormous pool of wisdom from which we can enrich ourselves, the law just shuts its eyes to that and goes along its own course guided only by the letter of the law and here again one remembers in Christianity a very strong condemnation that Christ himself had of lawyers that they became too legalistic. Now how do we stir the law out of this narrow vision? We have got to think in terms of one human family occupying one planetary home and governed by one universal law. Now there are philosophers like Aristotle and Dante who worked out a philosophy of all humans living under one sovereign and one law and this one sovereign because there would be nothing more he could require would administer that law impartially and that was the basis on which a world state of one human family could be administered.
Indian philosophy, three thousand years had gone a step further. It had said that the ultimate sovereign of the world will not be a Chakravarthy, a Chakravarthy is a universal ruler or physical sovereign, but the kingless authority of the law. Now isn’t that a beautiful statement. The ultimate sovereign of the world will be the kingless authority of the law. And what is that but international law, and that is why I, as one who has worked in the field of international law feel so delighted to glean wisdom of that sort into modern international law which modern international law has completely excluded and build it up into a discipline, build it up into a set of rules and enshrinement of values which will be applicable to the whole world. And here again we have to remember the sources of international law. Article 38 of the statute of the International Court says that apart from treaties there are two very important sources. One is customary international law, the other is general principles of law recognized by civilized nations. Now all this wealth of knowledge, this wealth of human experience gathered through tens of thousands of years of cohabiting with the environment is lost to the human race and wherever you look at the Native Americans for example, they have the wisdom that nothing of importance concerning their tribe should be decided without thinking in terms of seven generations to come.
Look at African tribal wisdom. As Bishop Tutu often reminds us, any decision you take should consider the threefold face of humanity. Humanity consists of those not merely those of us who are alive here and now but those who went before us and those who are yet to come and if we take a decision without considering all those three aspects it is a lopsided decision.
Australian Aboriginal wisdom goes back to mother Earth. We are each one of us connected to mother earth by an umbilical cord and if she prospers we prosper. If mother earth withers away we wither away and if mother earth perishes, we perish with her. So there is that intimate link between us and nature, between us and the universe, which is of course the basic sub stratum of the rights of future generations.
Now our legal systems are so narrow that future generations have no voice in a court of law. In a court of law there is a great multinational company that will be urging its point of view, and maybe the people of some underprivileged community who are being affected by it, but future generations are not represented. Who cares for them? The law is absolutely impervious to their needs. So that is something very defective with our modern legal system. There has got to be some concern for the generations yet to come and Gonthier was one of the foremost exponents of that and the World Future Council today in Hamburg in Germany. Marie Clair and I are associated with it. It is based on this basic principle that in today’s world decisions are taken on by people in political position and people in economic position, they are the people who dominate our lives, on the basis of what is going to happen in three or four years, but the distant perspective of future generations is completely lost and our legal system keeps silent about future generations, so we go on exploiting the rights of future generations and committing what is criminal.
It is an absolutely criminal act against future generations what we are doing without our legal system taking account of the rights of future generations. The world future council says that in former times there was the village headman or wise man of the tribe who would be consulted, he did not have to depend on votes, he did not have to depend on economic power, he was there for his wisdom, and for his experience and knowledge of the customs and experience of the tribe. So that is the wisdom that we lack today and our legal systems do not reflect it, our lawyers do not reflect it and our judges do not reflect it.
So I have been very privileged to be associated with Justice Gonthier in several of his ventures, one of which was to work out a handbook for the judges of the world in relation to environmental law for that is something that most judges do not know, especially international environmental law. Then also, his work on sustainable development where I was one of the speakers associated with it at the opening of CISDL so many years ago. So I have had the opportunity of interacting with him and noting a great concern he had for all these values on which in the last analysis the future of humanity depends. The future of humanity depends on these values, law and legal systems, lawyers and judges have neglected them thus far. We have to awaken them to their responsibilities in this regard.
Long years ago I wrote a book called ‘Slumbering Sentinels’ which was published by Penguin, and the Penguin artist drew a judge fast asleep on the front cover. The idea was that various forces were racing ahead which were undermining our rights and liberties but the legal system and the judiciary were fast asleep. So we want more Gonthiers and we want more action to carry his vision forward, and what is that action? We have got to spread a knowledge of basic human rights and so forth, spread a knowledge that international law is not a secret discipline which the general public cannot understand, children in schools can understand it, and we have to take to the schools the basic principles of international law. I have done that myself in Australia, America, England and so on, and addressed children of twelve and thirteen years on the basic principles of international law and you should see how their eyes light up when they know that this external world which they believe is a cynical world, a world concerned only with immediate profit, that these principles have been accepted by the external world. And if we do that and spread a knowledge of international law, it will have a momentum born of the wide acceptance and respect it commands.
There are quite a few cases which I handled in the International Court where I saw that although we did not have one soldier at our disposal to enforce our order the countries who came before the court obeyed our order and even withdrew their armies from the debated territories because of our order. How did that happen? Not because we had an army to oppose the army that was in occupation of that bit of land but because of the respect that international law commanded. So we have to foster respect among the members of the world community for international law, respect born of the fact that it is a common system of values embodying the basic values which all civilizations accept. Now those are various ways in which we can carry forward the work of Justice Gonthier. We have to develop the concept of sustainable development. I am glad to see it is being developed on various fronts now. The commercial world has taken it up, the United Nations has taken it up in its global compact where it requires commercial organizations to think in terms of sustainability. We have got to also see that there is a sufficient knowledge of these principles on the part of the general public of the countries so that the rulers of those countries will not be able to get away with a total violation of international law in some directions. They are able to do that today because international law is not known. If we spread a knowledge of international law they will not be able to do that.
So we also have to look upon the human family as one group occupying a common planetary home and I am reminded in this regard of what they say about astronauts, when they go out on a flight from earth. The first day after they leave earth they point out their countries to their colleagues. The second day because they cannot see their countries they point to their continent, and the third day they have to point to their planet, our planet Earth.
We are now all custodians of our planet earth. We are custodians of it, we hold it on the principle of trusteeship, we have to preserve it through the principle of sustainable development, we have to further the idea of the fraternity of all people and in this way entrench, pursue and spread the ideas for which Justice Gonthier stood and for which he made such a name for himself as well as for the Canadian legal system.
Thank you
