The court

The purpose of law and the Rule of Law

It is often said that when there is no law in a society that they follow the law of the jungle. In the jungle the fittest survive, might is right, and animals rule others through sheer dominance. That is an oversimplification, because ethologists have noted that there are significant cultural climates or customs that regulate pack animals that mitigate some of the violence that can ensure in the competition for dominance. Sometimes dominance is acquired through cunning rather than force. Females may offer themselves to the dominant male to acquire greater status and protection amongst Ape species. A rising Alpha may dethrone the current Alpha non violently through building alliances and mating with several females. There are many ways in which species organise themselves, but one thing is always true: there are those that are dominant and those that are subordinate. What about the human species? How have we organised ourselves and what informs our dominant-subordinate relationships? How do we negotiate ourselves out of violent confrontation? When do we try to dominate through violence? I will explore the answers to some of these questions because it is important that we understand the purpose of law and why the Rule of Law is important in human societies. Too many people in our era are ‘social justice warriors’ without direction because they do not understand the makings of society. They have not answered the question, “Why is it like this?” Instead, they haphazardly decide that, “this is wrong” and proceed to dismantle an entire social order unwittingly perpetrating greater injustices in the name of ‘justice.’

Agreements

Laws originate in pacts or agreements between people and an understanding that mutual interests can better be accomplished when they are jointly pursued. Without the need for cooperation there would be no need for agreements and therefore no need for laws. Human society has, through thousands of years, experienced common events that are largely disruptive and to the detriment of society at large in the longterm and have come up with conventions to prevent those disruptive behaviours. For example, avoiding tribal wars largely depended on the tribal custom of honouring the payment of the blood debt for a death of a tribal member. Failing that, tribes would be embroiled in internecine war for generations and no one benefits from that! At the same time, murder could not go unpunished because if people were free to murder then no one would feel safe and is that anyway to live? However, reaching an accord whereby society at large will collectively agree to those conventions wasn’t always possible. One tribe or a few might not care for tribal customs at all. There were always fears that those proposing said conventions were trying to use it to retain a position of dominance and power. Why follow the conventions proposed by others? Were these set of conventions perhaps not there to favour a certain group of people rather than held as being part of the common interest for all? How would we know the answer to that question? Who has the right to legislate? One answer to this problem was to dominate over the whole militarily and to suppress opposition through punishments. Hence, there is no need for the whole or most of its constituents to agree. Or in the very least, if most people agreed to the set of conventions, those who didn’t agree should either comply, be punished or expelled. Tribes sometimes unified in the interest of enforcing laws so as eradicate common threats through war. In other words, the problems of any conventions will always be dissent. While ‘good’ conventions might assure the greatest periods of peace for the longest periods of time, how society deals with dissent will always be a point of contention. Who gets to decide what the conventions are, and how, is another point of contention. How have we solved these historically? 

Revelation

Though many will not be prepared to have an honest discussion on law and religion, it is a historical fact that most laws were founded through claims of divinity or claims of having connected with the divine. In modern history, most law came as a result of Judaism and Islam, which was then tailored to suite the needs of modern states. For example, laws against incest were not backed by science to begin with but are still on the books of many countries. Similarly, laws against murder, bribery and ‘corruption’ are historically influenced by religion. This solved the problem of both “how  conventions are formed” and “who gets to make them.” In short, Prophets, people who said they spoke on behalf of God, answered that question simply by stating that God revealed the conventions with which they came and God alone has the right to make them. In a very real sense, these pioneers, the likes of Abraham,Moses, Jesus and Muhammad (God’s peace and blessing on them) are the founding fathers of modern civilisation because they collectively brought into being conventions that became widely accepted and implemented throughout the world. It formed a common language by which people transact and interact in a largely peaceful way given certain basic assumptions; like the ten commandments. The notions of justice and equality before the law sprung forth from the monotheism which held that since people are all equal before One God, so too are they equal before the law and will be judged without prejudice, at least in principle. It was the early Muslims who created the separation between the State and the judiciary because they held that no one was above the law, not even the government. 

Precedence 

One of the many mechanisms found in legal systems is that of precedence. Namely, that if a judgement was made on a particular issue and a similar issue arises then the previous judgement will hold a precedence- something to be followed. While legal precedence ensured a more consistent application of the law it tended to ignore the often more contemporary circumstances in which new violations arise. In other words, the application of legal precedence can also translate into injustices. For example, in some countries women were not allowed to withdraw money from a bank without the permission of their husbands is a precedent that is no longer followed. Also, the legal precedence founded in a particular society may relate specifically to that society, and cannot apply to another society. The precedent in early Islam that the Caliph should only be from the Quraysh tribe related only to Arabia and did not envision a Pan Islamic world of multiple ethnicities and where the majority of Muslims would not be Arab. The problems faced by religious laws are often that they are founded in a historical context that is incongruent to the current context we live in. The problem with these laws are often further compounded by the fact that the Halakah has far outgrown the original few laws of Judaism in as much as the Shariah has long outgrown the original few laws of the Prophet Muhammad (s). That is because these laws were developed according to the needs of the earliest generations of believers and the contexts that existed back then, and was not kept concurrent when societies have evolved. A large part of law is founded on precedence as relates to the era in which those precedences were developed. Very often, believers confuse the laws as developed over centuries as being divinely ordained, whereas the actual revealed laws were demonstrated within the life time of a Prophet and should not within reason be anything other than that. The inability of religion to hold the centre stage of legislation largely relates to the insistence on not distinguishing between the rabbinical pronouncements or later Islamic developments of law and the original foundational principles set forth by the Prophets. In other words, while religious laws form the foundation of modern legal theory in essence, modern laws sought to deal with contemporary problems while religious scholars sought to not deal with contemporary problems but got stuck in the past and the precedences set by past scholars who were dealing with the problems of their own times. 

Law as a tool to transform

The difficulty that scholars have who view law as being essentially divine ordinances is that these ordinances are set against a generation who long passed on. Do these laws now have to transform the societies of our time into the kinds of societies prevalent within the contexts found several hundreds years ago? Some would simply say that would be precisely what needs to happen. Many scholars are nostalgic about a glorious past in which pious people ruled the world with justice. On close examination of history, through the lens of realism and with an understanding of contemporary societies and politics, we find that the facts speak of a different reality; the world was not better, and in fact, it was often worse. In Christendom, people were burned at the stake for practicing medicine and scientific knowledge had to be passed on through underground channels. People legally owned slaves whom they could kill without repercussions, and rape was common practice. For many, their lives were doomed the day they were born because of the low status family name they would carry for the rest of their lives. Men of high standing, royalty, could march in on the day of a commoner’s wedding to rape his wife. We are told, those were the good old days. We, as a world, have in many ways graduated from the days of severe repression because the law didn’t transform people, but people, and their humanity, transformed the law. But was Christianity at fault or was it those who ruled in its name? Are the fundamental ethos of the world religions not present in most if not all legal codes at present? I argue that indeed they are. Laws that prohibit murder and incest, gambling and usury, rape and bribery, are all very much founded in Judaism, Christianity and Islam. The problem has never been that these religions represented laws that are essentially bad, but that bad people evolved laws while claiming to be patrons of these faiths. One can find in any of the books of religion universal truths and goodness that everyone would accept as being almost ‘objectively’ just. Despite some foolish and foolhardy religionists, the fact is that for countless ordinary Muslims, Christians and Jews, the laws of these religions have vastly improved their lives and have given them a much needed structure in order to progress. Truth be told, anyone who views marriage and family as a standard practice to be upheld has in essence accepted something of religion because a lot of the family laws as pertains to marriage, divorce, inheritance, maintenance and the like found across legal systems today have been inherited from these three religions to varying degrees and with varying levels of modifications. 

Equality before the law

Whether we call a law divine or whether we view it as man made, the fact is that the biggest injustices we find is often not because the laws of countries are essentially unjust, but that the application of said law is bias. Some legal systems are better than others because they have built within them proper checks and balances to mitigate some corrupt tendencies that we- as people- have. But in the end, the Rule of Law, refers to equality before the law- whatever that law may be. In modern Western law we say that everyone is innocent unless and until proven guilty. While this is our Western ideal, in practice we have found that our prejudices have sometimes overcome us. Despite that, in most Western countries, the courts do not unlawfully discriminate against people based on the likelihood of their particular demographic perpetrating a crime, even though it may happen on occasion. The law is not based on statistical analysis of what is likely or unlikely. When someone is presented before a court, all that should matter is evidence. People who hold to the principles of law know that this must necessarily be the case. The Qur’an tells us in Chapter 4 verse 135 to ‘Stand up firmly for justice, as a witness to God, even as against yourselves or your parents or your kin, and whether it be against rich or poor. ‘ There is no favouritism in the application of law. We cannot prosecute poor people and let rich people walk. Or prosecute others, and let people who are from our relatives or countrymen go. Rather, we must always be a society that follows the rule of law, whatever that law is, with out favour or prejudice. 

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