Law is loosely defined as a corpus or system of rules enforced by diktat, to regulate behavior. It is generally assumed or held that societies governed by the rule of law are humane, law abiding one This might be true but the question is: is a society or polity governed merely by law a just or even a “good” society? Or, more bluntly, can sole reliance on the law lead to justice? I am neither a jurist nor a jurisprudent, but my answer would be a big NO. The reason(s) pertain to the very nature of law and man. First, if laws, for instance, are a construct devised by humans employing the faculty of reason, through deduction and induction, then all laws are fragile, because while human nature might be constant but human behavior is quirky. Law then cannot stand the test of time and space. Second, the very nature of man , defined by base instincts like greed, avarice, pride, ego , arrogance and so on defies the notion that law can check these and lead to a “good” and “ just” society.
Law then merely can act as a check on these base(r) instincts and impulses of mankind. Moreover, from a strict political philosophy perspective, sole focus on law can either place checks and curbs on human freedom. The implication here is that once law is deprived of the character of enforcement, a given society or polity can descend into a Hobbesian anarchy of war against all. Admittedly, this is a scenario and robust analyses are not built on “ifs” and “what’s”. Let me instead take recourse to a loose and rather vague empirical assessment.
Consider the example of the West and its societies( not a homogenous construct in any sense) which are held to be beacons of law and its rule thereof. Any contra assertion, from a generic perspective, would amount to a quibble. Constitutional guarantees and even their enforcement, to protect the rights of individuals are the sine qua non of the West. But, in practice, the rule of law there, does not amount to equal protection of rights and justice for all. The reasons are axiomatic and pertain to policy, the premises behind policy making , the uneven unequal economic opportunities, inequality of opportunity, differential and expensive access to justice and the monopolization of law by its practitioners , the lawyers.
Policy and policy making are both premised on the ground of a crude instrumental utilitarianism wherein the operating credo and assumption is “ maximum utility for most”. In the cracks of this utilitarianism, many slip through and fall victim to it. There are also trade offs involved in policy making: some gain, while some others lose. Where, the question is, those who lose go? The options available to the victims of policy making are legal remedies and redress. But, it is well nigh impossible, or difficult to fight and then win against the state? If there is a slight potential of winning, or seeking justice, the state has more resources and power to overwhelm an individual, or in the case of class action, individuals. Redress and remedy becomes even more difficult for those who are economically deprived or come from vulnerable segments of society. And, perhaps more importantly, access to justice is prohibitively expensive, monopolized as it is, by lawyers.
If all this holds then law and rule of law is , more or less, the recourse available to the privileged. This undercuts the notion of justice and goodness.
Moreover, a society cannot held to be a “good” society if only law precludes “criminal” or “unlawful” activity. (Both “criminal” and “unlawful” are terms and concepts which are not only loaded but at times constructs determined by men or women who are fallible beings). Merely relying on the law then amounts to flimsy edifice which cannot be the antidote to corruption, injustice and evil. If law and its rule is inadequate, what can lead to a “good” and “just” society”?
A higher and superior ethic and morality is the answer. Here human nature becomes operative again. The nature of mankind is dual: it is defined both by baser, evil instincts but also by nobler and good ones. The history of mankind perhaps, at the risk of being accused of reductionism, is the struggle between the good and bad(evil) aspects of human nature. In general, it might be operative conditions in a given society that , to an extent, determine whether “good” or “evil” reigns. It is then upon ameliorating conditions, economic, social, political and so on, that the foundational bedrock of justice and goodness can develop and fructify. This is not to say that all evil will be eliminated from society. Nay, there are some who are prone to evil and it is to them that the gravamen and thrust of law must be directed to. But, for a good and just society, it is the superior ethic and morality that is its sine qua non and not the law. Can this state of condition be arrived at? Perhaps is the answer but for this condition to be reified, mankind must realize its limits, weaknesses and in all humility turn to the Creator and accept the very fallibility and foibles of men and(or) women.
—The author can be reached at: firstname.lastname@example.org