Laws – what are they?
The existence of laws is fundamental to a society governed by the rule of law. However, the creation and enforcement of laws does not, of itself, constitute or enable a society to be governed by the rule of law.
The important distinction must be drawn between a society governed by laws and a society governed by the rule of law. A society governed by laws, without consideration and embrace of the rule of law as a guiding and underlying principle, has the potential to be a tyrannical or “Police” state.
There are a myriad of definitions of “law” and it is, perhaps, instructive to consider a number of those definitions and statements made regarding them before turning to consider how laws might be (or have been) used to achieve justice or oppression and thus why the “rule of law” is fundamentally important in achieving the former rather than latter outcome.
The Organisation of American States1 provides this useful definition:
The law is a set of rules for society, designed to protect basic rights and freedoms, and to treat everyone fairly
The Legal Services Commission of South Australia provides the following useful and interesting discussion (rather than definition) of laws2:
a law is the product of the social conditions at the time it is made. The law is not static. Just as relationships between people or between people and the Government are not fixed permanently, so the law changes by responding to the current social and political values of the dominant culture. As societies become more complex so too does the law. It governs our private relationships through contract, tort, property, succession, trust and family law as well as our public relationships with the State through criminal, constitutional and administrative law
The Canadian Department of Justice provides the following insight3:
Rules made by government are called “laws4.” Laws are meant to control or change our behaviour and, unlike rules of morality, they are enforced by the courts… Ever since people began to live together in society laws have been necessary to hold that society together… Even in a well-ordered society, people have disagreements, and conflicts arise; the law provides a way to resolve disputes peacefully… Laws help to ensure a safe and peaceful society in which people’s rights are respected
Whilst the above examples are illustrative they make clear that laws are generally accepted as addressing fundamental purposes including:
- Changeability and responsiveness
- Protective of individual and collective rights
If one were to turn to utilitarian jurisprudential philosophers5 such as Bentham, Milne and Paine it might be opined that a “good” law:
- Protects individual freedom;
- Ensures collective security (including through the individual’s responsibility to not infringe that security through the prudent exercise of his/her freedom by reference to the freedom of others); and,
- Acknowledges and protects fundamental rights.
Yet clearly there are examples where laws have not met these purposes and yet have been laws enacted by elected governments. Readily recognised examples might include:
- “Jim Crow” segregation laws in various of the United States of America (whereby segregation was legally imposed or protected by “separate but equal” laws) and enduring until the 1960’s6
- Similar Australian laws establishing the various officers of the Protector of Aborigines7
- Apartheid and Pass laws in pre 1994 South Africa8
- Russia and Zimbabwe’s recent anti gay laws
- The suggested “Illegality” of recent Crimean succession motions.
The importance of laws being uniform in their application is generally accepted as fundamental to their doing justice. However, there are clear and obvious examples when this has not been so even when suggested to be so or where on the laws’ face it has appeared to be so. On such example is the 1776 American Declaration of Independence which contains the prosaic opening passage:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness
Whilst few would cavil with these words it must be remembered that at the time such “freedom” was declared as universal that:
- Women were not legally recognised as equal nor permitted to vote (a circumstance I have listed first amongst many injustices arising from the Declaration as I prepare this speech on International Women’s Day);
- The First Nations Peoples of the then United States were not treated with such unanimity of equality9;
- Slavery flourished10 (and including a number of the drafters and signatories of the Declaration owning slaves).
The injustice of such anomalies (indeed hypocrisies) has been the subject of substantial and significant comment by judicial officers and political and Civil Rights leaders including:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens….The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved
– Justice Harlan11
Freedom and justice cannot be parceled out in pieces to suit political convenience. I don’t believe you can stand for freedom for one group of people and deny it to others.
– Coretta Scott King
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
– Martin Luther King Jnr
Laws are the means by which political will is given expression. Thus if the political will is not just then nor will be the expression of that will. In this sense the absence of justice constitutes injustice and injustice oppresses. Similarly, a law passed for an unjust purpose will oppress.
Martin Luther King Jnr had sagely opined that:
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress
Sadly time does not permit any detailed discussion of what might be meant by “justice”.
Read more here from Judge Joe Harman
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