Opinion Sur
Is the law useless? How is it generated? Who are the ones that determine it and have a bearing upon interpreting norms? Its critical contribution and limitations. The rule of law and the collective decision to submit to norms.The question in the title is relevant because we are living in a time characterized by two conflicting trends. On the one hand, there is an explosion of legal regulations due to the hypertrophied activity of regulatory authorities and, on the other one, there exists a growing mistrust among the subjects of those rules in relation to the institutions that those instruments create, and the chances that laws may modify reality, particularly in favor of the weakest sectors of society. Many times, the legal system is seen as the way rulers use to crystallize the social situation and prevent reforms from occurring.
José Hernández, in a poem considered a fundamental work in Argentine literature, masterly depicts that mistrust by saying, “The law is a spider’s web / That is how I see it from my ignorance / It should not be feared by the rich man / It should not be feared by the one who is in command / Because big bugs break out of it / And only the little ones get caught.” (The Return of Martín Fierro, 1879.)
We are not going to immerse in great subtleties; suffice it to say that for most people, the law may be identified as a normative system. It is the system that tells us what we must and must not do at the social sphere, with the peculiarity that, if we fail to obey it, we will incur pernicious consequences. This applies to the obligation to stop when the traffic light is red, to pay taxes, or to refrain from killing our congeners.
It is then worth wondering whether such set of rules is of any intrinsic usefulness beyond the regulations the system imposes (some believe, for instance, that paying taxes is objectionable, not to speak about the supporters of different forms of homicide).
In addition to the above-mentioned fundamental criticism, there are other frequently formulated objections. On the one hand, the law is said to be the business of lawyers, and those tricksters and opportunists are known to be always seeking to complicate things so that they are the only ones who end up winning. This leads to the configuration of an esoteric, elaborate language that is incomprehensible to the layman. We would be doing much better in a lawless society, as for just enforcing rules imposed by common sense it would not be necessary to develop bureaucratic apparatuses such as courts and all the other institutions that flourish around them.
Another frequent objection is that the law might have any content whatsoever, as shown by the fact that two judges may interpret a rule in totally different ways, something that lawyers actually do all the time, as in each lawsuit each party interprets norms in ways that are incompatible with the other one’s, and argue that each one is right. If the law is so imprecise, then it makes no sense to believe in laws, as they are manipulated to suit whoever is interpreting them. And this translates into the fact that the outcome of a lawsuit does not depend on who is right but on who has been able to hire the best lawyer, or on to what extent the public opinion or other interests may influence the judges’ decisions. On the other hand, lawyers are said to lack any moral justification, as they defend whoever pays them, regardless of whether their client is guilty or not.
Let us first address the secondary objections. As for the lack of simplicity of the law, the legal system is a complex articulation of different rules created by centuries-old institutions. In Roman law-inspired legal systems having legislation as their main source, a strong legal culture has evolved. It is true that the legalese sometimes incurs excesses, yet the same thing happens with any other discipline in the complex society we live in. Here we should make a distinction between the normative system and the comments or elucidations made about it, what is habitually called the legal science in Continental law countries. (There is a difference with “common law” countries, of Anglo-Saxon tradition, where the system is primarily based on court decisions).
Legal categorizations are normally the product of the work of jurists. However, nothing is abstruse in the science of law. The law is, to a large extent, a system governed by common sense as it reflects values and conceptions of society.
It is hard to conceive a lawless society. In any complex society, such as the contemporary ones, the use of force needs to be regulated. Private revenge, typical of primitive societies, is replaced with the regulation of the use of force, which is modernly left in the hands of the State. The State monopolizes the use of force, and the law regulates it.
The law, hence, contributes to social peace, as it regulates the use of force. In this respect, what matters is that it introduces a rational way of solving social conflicts. In the face of a possible way of settling social conflicts through violence, the law is, par excellence, the rational way of addressing them.
Yet, a normative system cannot be self-administered. Rules are general enunciations; for these to be applied to a concrete case, the decision to recognize the generically enunciated properties in one particular case is required. If the norm punishes the act of killing, what A did to B on a given date has to be identified as an act of that type. Easy as it may seem, when we consider the concepts involved, we come to realize that it is not. What does killing mean? One common definition would be “to take somebody’s life”. Then, when does someone lose his/her life? Suffice it to say that there is no consensus over this (it may be when there is no brain activity, when the heart ceases to pump blood for a given time, etc.) It is obvious that if A is accused of killing B, A will defend himself/herself by denying having done so, and saying that his/her conduct is not the one described in the norm.
As a result of all this, it is necessary to have someone who can authoritatively determine whether the norm is applicable to the individual case. An impartial third party, alien to the conflict –that is to say, a judge– is required.
Indeed, different judges may pass different rulings, as they may interpret the law differently. The law leaves a certain room for interpretation, a room that stems from the legislators’ impossibility to anticipate all cases and from linguistic imprecision, as well as from the often objectionable configuration of the system. This does not mean, however, that all legal solutions are uncertain. Discrepancies do not exist in all cases, only in the so-called “difficult cases”. Otherwise, rules would be totally useless as a behavior guide.
Divergences among jurists generate a regrettable secondary effect: anyone feels authorized to have a say in a legal case. We, legal practitioners, know that it is almost impossible to venture an opinion about a case without knowing its details. Yet, we are faced with armchair critics of all ilk, who preach in front of a microphone or camera that a court’s decision has been wrong, or applaud it, depending on political or circumstantial affinities.
Finally, lawyers are usually severely criticized for their behavior, overlooking the fact that they are assistants to the party, not judges. If attorneys act ethically, they will, in a lawsuit, highlight the points that may favor their client and minimize the negative ones. The task of administering justice is the responsibility of judges. Neither can the choice of their clients be criticized, excepting by saying that, as a professional, one would not defend certain cases. It is contradictory, however, to hold that in a legal system the presumption of innocence holds true, and, at the same time, deny someone the chance of having counsel. It is true that there are better and worse lawyers, and that individuals who have more economic power are likely to have a better defense; but inequalities are corrected with a good system of public defense and, primarily, with good judges, who will not overlook that detail.
Anyway, lawsuits have always been uncertain: an old inscription in Venetian dialect found in a building constructed in 1625 reads as follows, “Fabbisogno per intrapender lite/casa da banchier/ gamba da cervier/ pazienzia da romito/ aver razon/ saverla espor/ trovar chi líntenda/ e chi la voglia dar/ e debitor/ chi possa pagar”. Its English translation is, “To bring suit you need to have a banker’s cash, the legs of a deer, the patience of a hermit; you need to be right, be capable of stating your reason, find someone who can understand it and someone who is willing to accept it, and a solvent debtor”. Learned Hand, a US judge famous for his knowledge of law, said that suffering from a disease was preferable to facing a lawsuit.
Let us now go back to the initial objection. The law is in charge of establishing a country’s rules of the game, which stem from the prevailing social, political and economic system. In a democratic society, these rules are egalitarian and enforceable on all subjects without exception. There have been, and there are regimes where democracy is not in force, or is imperfectly in force. There, rules observance depends on who are actually in command, as they have the power to influence enforcement. The same point is made in the above mentioned Martín Fierro quote when stating that it is not the law what is objected to, but the way in which it is enforced.
In sum, the law possesses an important virtue: it prescribes in the form of rules what behaviors are expected from those to whom it is applied. In this sense, it establishes the more or less fair rules of the game that members of society should abide by. In this respect, the law is a major step forward in relation to autocratic decisions. Constitutions and courts of law set up limits, thus configuring the so-called “rule of law”, which reflects a collective decision to submit to the established regulations.
