One of the most common arguments for enforcing laws is that they’re needed. This begs the question “Why?”, but apart from “consistency” and “stability”, no real answer has come out. The law is there to be obeyed, some say, never mind who institutes them or checks whether they’re being obeyed in the first place. Not that there’s anything wrong with this, but whether we need laws or why we need to obey them hasn’t really been resolved. For now.
If justice privileges process, and if the judicial process privileges itself, we have a right to ask why. We need to know how that process is enacted, who enacts it, and whether there’s any justification for it outside the consistency-stability argument. At a time when everything seems to have gone haywire and we’re groping in the dark, however, we’re yet to come up with an answer.
Take the death penalty. There’s a school of thought that demands that it should be instituted. The argument for this is that it prevents and protects. In other words, it prevents criminal and protects victim. This of course sums up the entirety of criminal law, but it begs another question: why do we kill to prevent killing?
This is just one problem, though. Laws are designed by someone. It’s not about ethics, morality, natural justice only, hence. It’s about public policy. About ensuring that everyone is equal before process, that not even those who has a say in implementing it is above it. At least in theory.
But what do we see in reality? Something totally different. Nothing in this world is perfect, after all. Laws are not perfect. They have their detractors. Their critics. Advocates of stricter mechanisms (like capital punishment) would advocate eye for eye. Ideally, however, no legal system wants that. And yet, that’s what happens. For real. Now.
Let’s look at it in another way. There’s no such thing as equality. The law clearly does not aim at it, because inasmuch as it ensures fair play, justice does not duplicate equality. There is no “preferential treatment” for the disadvantaged. Lady Justice is blindfolded, true, but this doesn’t mean that she is lenient towards those hard done by her system. She presides over a court that is not really attached to the world outside. Questions of fair play, inequality, and racism don’t (always) come into play. Why?
The answer is simple: process is privileged. And when you privilege something, naturally enough, outside-factors don’t factor in.
Those who advocate the death penalty, for instance, are at a loss when asked “Why?” Laws resist reductionism, because the moment it presents itself as “necessary”, we ask (and no one answers) why. Same thing with the penalty. The prevent-and-protect argument fails here, and not least because we’ve branded the death penalty as “legal murder”. Yes, legal murder. Strange. Since when was murder “legal”?
Oh yes. I forgot. Process.
This makes me revisit something Albert Camus wrote. Camus wasn’t a lawyer. He wasn’t a jurist. But he was a writer. A philosopher. In his essay “Reflections on the Guillotine”, he dissects the arguments in favour of the death penalty. He makes the case against it in a way I can’t contend with. And through it, he maintains one indisputable truth: those who frame laws aren’t necessarily (more) perfect than those they condemn. True enough.
How can we apply this to everything else, though? Camus gives us an answer. A brilliant one. He writes, “Every criminal acquits himself before he is judged.” Why? Because he considers himself excused by the one thing that the law, in its rush for stability (over everything else), almost always disregards: circumstance. The criminal is the exception precisely because he is excused by the context in which he is placed. That’s extrapolating a little too much I agree. But think again.
Legal mechanisms exclude no one. They make no exception. Everyone’s equal, in theory at least. But there’s a problem here. Laws don’t fall from the sky. They have to be made. Someone ensures they’re obeyed. That somebody needs jurisdiction. Leeway. This in turn presupposes division between those who make laws and those who implement them, because absence of division would mean “conflict of interest”.
If legal systems aren’t perfect, then what makes them necessary? If they appear insensitive to the outside world, if they don’t factor in circumstance when cases are heard (and decided), what makes them so special? Fairness? Justice? Certainly not. Justice, after all, mustn’t only be done, but must also be seen to be done. How? By excluding circumstance. By privileging process. By ensuring that emotion and outside-circumstance do not weigh in the juror’s mind. It’s that simple, actually.
I have written about the death penalty. Take another context: defamation. Take the McLibel case. It took eight years for the Courts to decide on fairness there. Eight years for its defendants (Steel and Morris) to come up with enough evidence for the fact that they had been deprived of legal aid. That’s long, and not just in cost-terms. We’re talking about eight years spent in determining a moot point: that the right to criticise is sacred.
Steel and Morris had exercised that right. They had criticised McDonald’s. They had pointed out fact and rumour. Now facts can be proved. Rumours can’t. MacDonald’s brought a libel case against the two for this. We’re talking about a company that earns more than 30 billion dollars a year, that has branched out to practically every corner of the world. We’re also talking about two defendants who were denied legal aid, who could barely afford a first-year law student to help their case at the Court of Appeal. The stakes were high. It was a foregone conclusion. The defendants lost. Badly.
Laws change. For the better. Which is why, nearly a decade later, both defendants went to Strasbourg. Why the UK government had to pay Steel and Morris 57,000 pounds. Why both defendants won. And why the European Court of Human Rights acknowledged how David-and-Goliath-like the case between two activists and a multibillion company had been. Yes, it took a decade for the original case to be determined, plus another seven years for it to go to Strasbourg. But in the end, Steel and Morris won.
There’s a lesson here. Legal processes are man-made. They are hence subject to the caveat that they can be frail. They are. Once in a while, however, and with time, they change. They reflect circumstances and ground realities. They manage to take in prima facie, in-your-face evidence and ensure that just as laws aren’t concerned with social parity or fair play, they must take them into account to decide on process (and not outcome).
Does this mean that laws aren’t imperfect? Not necessarily. They are framed by people. Doesn’t mean they keep everyone happy. Or everyone in check. They subject some and absolve others. Miscarriages aren’t rare and sometimes are the norm. Spelt out in black-and-white, the law tries to equate everything with principle. Doesn’t work. Not all the time.
But they are needed. Why? Two reasons.
First, the utilitarian principle. The greatest happiness for the greatest number. Stands to reason. If anything is true in this world, it’s this: no one can be kept content, not for long. This applies to the law too. It doesn’t favour everyone, not even the victim.
But if laws can’t satisfy everyone, it means that what counts is aggregate (or the sum total). In other words, justice isn’t measured by one single case. It’s measured by an aggregate, by putting together different outcomes and judging whether or not fairness has factored in. If it hasn’t, there’s need for reform. And the law, let’s not forget, can reform.
Second, the Hobbesian principle. Man is a beast. He has passions. He cries, laughs, is prone to anger and shame, and takes revenge. He needs control. He needs to be controlled. That’s when authority comes in. When nations constituted on laws are formed. When liberty and authority are balanced. While no legal system has achieved this balance, hence, we need laws not because they’re perfect, but because no real alternative has sprung up to reach this balance.
People talk about justice. About how laws disregard justice. How they should be done away with. That’s anarchy. That’s licence to do anything and everything we please. Even murder. Without sanction. But while those who advocate anarchy are equipped to withstand the pressures that come with it, it’s hard to advocate a system that will allow everyone to do everything. That’s worse. In the absence of anything better, therefore, we have to put up. With the law. And bend down too. Before it.