Thursday, 9 February 2012

The law’s great mysteries

Law Library DVDs

Reflecting on the law By SHAD SALEEM FARUQI

A breathtaking variety of approaches to the law light up the legal firmament in so many spectacular ways that one cannot fail but be impressed.

EVERY judge, lawyer and law teacher has to grapple with some central and eternal riddles that surround the law. The most basic, unanswerable (and embarrassing) question is “what is ‘law’?” Is there some universal concept of law or are there many varied conceptions?

In its simplest form, law could be defined as rules of conduct or norms or standards of behaviour. However, the rich reality is that rules exist in many forms and originate from many sources. Many tributaries contribute to the legal main.

> At the dawn of human history, rules of conduct existed primarily by way of custom and traditions of the tribe or community.

> As formal religions took hold, legal norms began to be prescribed by religion, ethics and morality.
> With the rise of the political state, law came to be attributed to the commands of the state or the political sovereign.

> In modern society, the legislative mono­poly of the state is complemented by innumerable civil society groups and other centres of authority like business and professional guilds. Their precepts and practices constitute an important alternative source of informal legal practice.

> A large part of social, professional and economic life is governed by the private law of contract, the law of the association and the contractual rules at the workplace which are predominantly dictated by non-state actors.

> In an increasingly globalised world, the dictates of international organisations and the treaties and agreements between multi-national parties regulate much of our beha­viour. The sovereign state is in decline and more and more international laws are lapping at our shores.

> When disputes arise, we go to courts, tribunals or mediatory or conciliatory bodies. Their decisions are generally holistic and are based on a multiplicity of competing sources. Rarely does a judge decide on the basis of a lone rule. He reads a statutory provision in the context of provisions from other statutes and he supplements formal rules with informal standards that enrich our life and legal system. Like a painter, he enriches the legal canvas with religious, moral, social, economic and historical colours. Law becomes what he, the interpreter, declares it to be and not what the legislator actually prescribed.
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Clearly, there is a multiplicity of competing sources in the majestic network of the law. Which source is legally acceptable and which not? Which rules qualify as law and how do we distinguish legal rules from other types of rules? Within the multiplicity of sources, is there a clear hierarchy of superior and inferior norms?

There are many other eternal questions that surround the law.

What is the basic or essential foundation on which law rests? Is it reason or revelation, coercion or consent, morality or utility, history or psychology?

What is the relationship between law and morality and law and justice? Are flagrantly immoral and unjust laws legally valid? In the definition of law, is moral content relevant? Can a horrendously unjust legal order like the Nazi system satisfy the nomenclature of legality? Is morality a criterion of validity or a factor contributing to compliance and continuity?

Must law be defined by reference to who makes the law, i.e. by the law’s source, or by reference to how it was made, i.e. by reference to procedures accepted in a society?

Must law be defined by reference to its functions in society so that any rule that performs regulatory and normative functions qualifies to be called law?

Why is law obeyed? Is it because we have been psychologically conditioned to believe that we have a duty to obey the law? Or do we obey the law because of the fear of sanction?

If fear is the sole motivation behind obedience, then how is the law of the state distinguishable from the law of the evil gunman? If there is a moral or utilitarian duty to obey the commands of the state, is this duty absolute or conditional to the state’s performance of its social contract?

What are the aims and functions of law in society? Is law about order or about freedom? Is it about stability or about change? Is it a heathen word for power or is its job to balance the might of the state with the rights of the citizens?

Does law mould society or does society mould the law?

What is the role of the judiciary in the legal system? Are judges law finders or law makers? If judges contribute building blocks to the law, is such law-making undemocratic and undesirable?

To none of the above issues are there any simple, single answers. Much depends on the philosophical approach one adopts. There is a breathtaking variety of such approaches and they light up the legal firmament in ways so spectacular that no one can fail to be impressed.

Among the prominent approaches are naturalism, legal positivism, historicism, realism, Marxism, post-modernism, feminism and the perspectives of anthropology, critical legal studies and sociology.

Naturalism stands for idealism in the law. It links law with substantive and procedural justice. It supports inalienable rights.

Positivism focuses on law’s link with the state. It rejects higher sources.

Historicism and anthropology de-emphasise formal sources. They see law as an evolutionary product of custom and the spirit of the people.

Realism defines law by reference to judicial decisions. It sees judges as the central agent of law’s interpretation and evolution.

Marxism, feminism, critical legal studies view law as class ideology and as the preserver of the unjust status quo. They seek reform and change.

At this moment in Malaysian history when transformation is being sought through the law, one must be hopeful, yet cautious.

Laws are as good as the people who administer them. Justice is not in legislation but in administration.
> Shad Faruqi is emeritus professor at UiTM and visiting professor at USM.

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