Justice does not judge only the past. Sometimes it is obliged to judge the future.

The classic image of justice is simple: a judge establishes what happened.

They analyse evidence, hear witnesses, interpret the law and determine the legal consequences of facts that have already occurred. The entire process appears to be built around the past.

Yet this image captures only part of reality.

There are situations in which the judge is not asked to establish what was, but to decide on the basis of what might happen.

The institution of conditional release illustrates this reality perfectly.

At first glance, the analysis seems technical. The fraction of the sentence served is checked, conduct in prison, disciplinary sanctions, rewards, participation in educational activities and the other conditions prescribed by law. All of these can be documented and verified. They are objective facts, belonging to the past, and allow for rigorous legal analysis.

The difficulty begins at the point when all these checks have been completed.

The law requires the court to determine whether the convicted person has reformed and whether they can be reintegrated into society. From that moment, the analysis no longer concerns the past alone. It shifts to a fact that does not yet exist: the future conduct of the person before the court.

Here, the law encounters its natural limits.

How can the change in a person be assessed?

How can genuine remorse be distinguished from behaviour adopted to secure a benefit?

How can a person’s capacity to comply with the law in a free society be judged on the basis of conduct displayed in an environment where every aspect of life is controlled?

Neither the law nor psychology provides definitive answers.

A judge cannot administer proof of the future.

They can only evaluate indicators.

This reality explains why the legislature has not turned conditional release into an automatic mechanism. Satisfaction of the legal conditions does not, in itself, lead to the application being granted. The court must form its own conviction as to the realistic prospects of social reintegration.

The same logic is found in other legal institutions.

In the case of pre-trial detention, the court analyses the risk of witness tampering, of absconding or of the commission of further offences.

In matters concerning protection orders, the court assesses the likelihood of further acts of violence.

In cases involving minors, the judge must identify the solution that serves the child’s best interests over the long term.

In all these situations, the decision does not concern the past alone. It seeks to answer a question about the future.

From this arises a permanent tension in the act of justice.

Society demands predictable decisions. Similar cases should be resolved in similar ways. Equality before the law imposes this requirement.

At the same time, each person has their own history, their own vulnerabilities and their own path. A justice system that was entirely standardised would treat different people as if they were identical.

That is why the law uses expressions such as “the court considers”, “there is a belief that” or “may be reintegrated into society”. These formulae do not express a lack of precision on the part of the legislature. They acknowledge the existence of situations in which a decision cannot be reduced to the mechanical application of a legal algorithm.

Of course, this freedom of assessment is not without risk.

It can lead to inconsistent practice.

It can generate differing perceptions of similar situations.

It can fuel the criticism that the outcome depends more on the judge than on the law.

These concerns are legitimate and explain why the duty to give reasons for decisions occupies such an important place in the architecture of a fair trial. The wider the scope for assessment, the more rigorous the reasoning must be. Only thus does the freedom of assessment remain compatible with the requirements of the rule of law.

There is, however, a conclusion that goes beyond the institution of conditional release.

The judge is not merely the person who reconstructs the past.

In certain cases, the law requires them to make a responsible judgement about a future that cannot be proven by evidence but can only be anticipated through analysis of human behaviour.

Few responsibilities are comparable to this one.

At the moment when the law asks the magistrate to decide on a future that cannot be proven, judicial independence ceases to be an abstract constitutional principle.

It becomes a professional obligation of exceptional complexity.

And at that moment, more clearly than anywhere else, the difference is seen between the mere application of the law and the administration of justice.