Weaponizing the law

"What is the distinction between what is legal, ethical, and just?"

 

With this column, I begin a series on the concept of lawfare, the proposition that law is being weaponized for political purposes—in a good way as when we used law in fighting a military and economic giant, but also unfortunately in an evil way when it is used to violate human rights and suppress our freedoms of expression, press, and dissent.

Like religion, morality, and social conventions, law is a normative social practice which purports to guide human behavior and direct human actions and his social, political or economic relations towards a common goal. Apropos is the Latin legal maxim “Lex est sanctio sancta jubens honesta et prohibens contraria” which says that a law is a sacred sanction, commanding what is right and prohibiting the contrary.

Along with other social conventions, law is a norm that melds societies together. Without law, there can only be chaos and anarchy. This is why no modern society can possibly function effectively, if not exist, without some form of rule that brings or imposes order on how people should behave in dealing with others. Law is the reason why hitherto small communities are able to transform themselves into great empires. The Roman empire, which originated from an unknown tribe in Latium, was forged not only by military might but by the legal system, to be known as ius gentium or jus gentium (Latin for "law of nations") which created cohesiveness among the different tribes they conquered. The Roman legal system survived the collapse of the Roman empire and was handed down to and inherited by the great Christian empires of Europe, although the traditional ius gentium of the Roman system was now interspersed with canon or ecclesiastical law.

When every person in a collectivity operates under the principle of “to each his own,” it will result in the breakdown of order and civility, man being impelled only into action in accordance with his primal instinct of self-preservation. Somalia, Afghanistan, Yemen and a few other countries have been declared failed states due to loss of control or legitimacy and inability to perform the functions of a state. Factors that drive states into the abyss of lawlessness and anarchy include escalation of communal conflict like in Somalia, Yugoslavia and Yemen, to name a few; collapse of democratic infrastructure such as Nigeria or Madagascar; or crisis in succession like Iran under the Shah or Iraq after the fall of Saddam Hussein.

The quest for peace, security and prosperity is a fundamental necessity that drives humans into setting up some form of rules or laws that will create social cohesion and direct the community into achieving a common good. But to attain this, there is a person, group or collectivity of individuals vested with authority to orchestrate the communal effort, make and enforce rules in accordance with the mandate of the sovereign.

Since time immemorial, legal theorists have elucidated on the questions: What is law? What is its purpose? What is the distinction between what is legal, ethical, and just?

Four major theories of law try to answer these questions: the Natural law theory, Positive law theory, Marxist law theory, and Realist theory of law.

The natural law theory is founded on the belief that the source of law is not man or legislation, but “God, nature or reason.” Preeminent classical philosophers of this persuasion are Plato and Aristotle who explained the nature of natural law. The Catholic philosophy of Saint Thomas Aquinas borrows from these Greek thinkers, especially Aristotle.

The positivist theory posits the view that law is man-made, enacted to oblige or specify an action. This subscribes that law is only effectual as a guide to human behavior unless the language of the law and the methods to interpret it are useful to ordinary citizens. Laws in society are a subset of the sovereign’s commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.”

In simplest terms, law, according to Karl Marx and Friedrich Engels, is the will of the ruling class. Marx subscribe to the idea that law and state are the creation of those who have the means of production contrived to exploit those who do not have in order to protect their private property. This theory assumes that perfect equality can only be attained in a Communist stage where there is no private property, class, state and law.

As the name suggests, the realists are more interested in the actual workings of the law rather than its theoretical abstractions. Based on this approach, rules not applied to address practical uses are dead; they breathe life only when they are put to good use in real-life situations. On this premise, laws are laws only when applied by the judge and not by legislators. As such, the judge, not the legislator, is the real lawmaker.

No single theoretical framework discussed can be dismissed outright as false, discredited in its entirety or swallowed as the repository of truth. In the next column, I will propose an approach that will help us understand and defeat evil lawfare.

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