Introduction
This article analyzes the idea of “law above the law”—the existence of universal standards of justice that transcend positive law. Even systems based on “pure procedure” harbor a hidden metaphysics and a theory of the good. John Warwick Montgomery posits that natural law is too general; therefore, a real fulcrum must provide a concrete axiological foundation. Understanding these mechanisms is crucial for the legitimacy of systems and the protection of the individual against the arbitrariness of power.
Law Above the Law: The Foundation of Legitimacy and the Limits of Injustice
The Radbruch Formula defines the limits of obedience: a flagrantly unjust statute is simply not law. Eminent thinkers have debated the moral foundation of legal norms. H.L.A. Hart secularized the sources of law, pointing to official conventions. Ronald Dworkin argued that law consists not only of rules but also of principles requiring interpretive integrity. Lon Fuller highlighted the internal morality of law, which protects human dignity.
Julius Stone’s realism serves as a safeguard against legal nihilism and technocratic emptiness. He perceives law as an instrument of social control embedded in cultural facts. Stone teaches that law must be measured by its real-world effects, rather than mere formal correctness, preventing the reduction of jurisprudence to pure mechanics.
The Craft of Evidence: From Ancient Documents to Greenleaf’s Tests
In the process of seeking the truth, the distinction between admissibility and probative value is essential. The ancient document rule allows for the automatic authentication of a source but does not determine its veracity. Montgomery searches history for functional equivalents of cross-examination, finding them in the proclamation of ideas “in the eye of the opposition,” though for a lawyer, procedural rigor remains irreplaceable.
The credibility of testimony is verified by Greenleaf’s five tests: integrity (lack of motive to lie), ability (perceptive capacity), the number and consistency of testimonies, conformity with experience, and coincidence with collateral circumstances. These tools, updated for the rigors of the digital age, protect us from confusing a convenient narrative with the best explanation of the facts.
Modern Challenges: Proportionality, Algorithms, and Global Axiology
The principle of proportionality currently functions as a secular “law above the law.” It requires that every state intervention pass the tests of suitability, necessity, and the balancing of public gain against the burden on the individual. In the era of information globalization, the integrity of the legal process is threatened by digital hearsay and a scale of data that is difficult to subject to classical verification.
A new threat is “spectral evidence” in the age of algorithms. Opaque AI systems making decisions about people are becoming a modern version of the “spectral testimony” from Salem. At the same time, concepts such as dharma (India) or ubuntu (Africa) demonstrate that the need for transcendence in law is universal and extends beyond the Western world.
Summary: Dignity as the Ultimate Safeguard
Law stripped of its roots in universal values becomes merely an empty form susceptible to instrumentalization. Human dignity constitutes the system's ultimate axiological safeguard, which no statute can override. Can we develop a common ethical language that allows us to meet the challenges of the future without abandoning cultural diversity? Without a “law above the law,” we are condemned to drift in a sea of relativism, where might becomes the only right.
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