Columnists

Law isn’t the solution to all problems

law

Accepting to do the right thing irrespective of whether that is compelled by some legal rule or by some government force is what makes a society democratic. PHOTO | SHUTTERSTOCK

collinsodote_img

Summary

  • It is not the existence of sound rules and institutions that leads to social change. Rather it is the context in which those rules are implemented and how the institutions are staffed and operate. Unless we do so we will continue enacting new laws and policies, creating many institutions, and changing our Constitution yet still feel dissatisfied with the quality of our governance.

As a younger man, I was fascinated with the law and its potential. This partly explains my choice of career. I say partly because my father always wanted me to be a medical doctor. When some people confuse me for someone who treats patients, they may never know how close they are to what my late father always desired for his son. Sadly, for him I chose a career in law.

However, from my early days I always held the position that law is not a neutral tool. It can either facilitate change and progress or hinder it. I was reminded about this reality last week at a meeting on advocacy.

Once I had finished making my presentation on advocacy strategy, a colleague whom I have known for several years quipped that the trouble with lawyers is their belief that all changes must be pursued through legal means. In his view advocacy must include recognition of the need to pursue illegal routes to achieving the desired results.

His sentiments led to a deep debate between the two of us on the place of law in society. We both agreed that law is an important tool in the governance process. It ensures orderly conduct of affairs by regulating the relationship amongst citizens and between citizens and their leaders.

However, law can also be a tool for oppression, a fact that was historically associated with Marxism. My friend held the view that such law must be disobeyed for being illegal.

My challenge to him was whether law that is out of tune with the context and interests of society is still law. The import of the above discussion is way too often we rush to the law for solutions to all problems that we face. Our arsenal of options ranges from legislating, litigating and reform solutions that revolve around the use of legal rules. Rarely do we stop to ask ourselves whether the problem is one which requires the use of law to solve. If you have less money to buy food, for example, your first option may not be to develop a law on funding but to see where you can get money.

Diagnosing the problem correctly is at the root of designing effective solutions. As a country we should recognise the limits of the law.

Lawyers occupy a lot of space in the governance process. Many laws designed in the recent past have a requirement for a lawyer as a qualification to be nominated and serve in such positions. This is recognition of the importance of law and legal inputs into those processes. However, when problems arise, lawyers too must bear the brunt of the blame. The friend who spoke to me on advocacy underscored this point.

The ongoing American transition has unmasked the limits of the law in ordering society. In this instance despite the existence of clear processes for transition, for three weeks the incumbent has refused to concede defeat and ensure that the orderly transition that is the hallmark of American democracy kicks in.

Across the globe, there was huge consternation watching the events play out. Many wondered how a model democracy or one that has held itself out as much could be faced with embarrassing problems such as this. It, however, showed that democratic development is predicated on common sense and good manners amongst the citizenry.

The entire debate about software issues requires human beings to agree to operate according to certain minimum standards. Accepting to do the right thing irrespective of whether that is compelled by some legal rule or by some government force is what makes a society democratic.

Accepting this fact would make the over-obsession with laws and legislating for every problem reduce. In its place we would explore other solutions to the myriad problems that afflict our nations. Some of those require medical solutions, others require religion and so on and so forth.

It is not the existence of sound rules and institutions that leads to social change. Rather it is the context in which those rules are implemented and how the institutions are staffed and operate.

Unless we do so we will continue enacting new laws and policies, creating many institutions, and changing our Constitution yet still feel dissatisfied with the quality of our governance.