Thinking Law

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The law opens and closes our life. While it brings closure to some things, it opens us to some other things. It marks our space for everything within its domains. It assigns space and time for life and action and characterises it as legal and illegal. We live under the force of the law. But the law fails because it cannot oversee every aspect of our life. It cannot see everything. This is why we need several laws to attend to different aspects of life. Besides, one comes under the force of a law only when one is caught in the act. Otherwise even if one has transgressed the law one cannot be brought under the play of a law. Law therefore fails. Its force is limited. It cannot bind life to its forms. It is a night watchman. It just keeps a watch but cannot easily catch every transgressor.

Although law is ambitious. It claims to nail everything under its domain. But it cannot fulfil its promise. It needs something outside itself. It needs testimony and confirmation of proof. Law, therefore, is blind. It applies only when one finds evidence of its transgression. But we can also plant the evidence and fail the law of its spirit and justice and criminalize or render culpable someone innocent. Besides, because of lack of evidence, we may also set the guilty free.

The force of law or the rule of the law is limited and affirms several of our freedoms. But when we rule by law, we look to curb freedoms and catch transgressors and also target innocent by the force of the law. In several ways, law that seeks it ground in the evidence remains groundless and remains vulnerable for its manipulation by vested interest. This law that proclaims to be the harbinger of justice can also be unjust and ally with the vested interest. The weakness of the law that I have examined has put law on trail on its own terms. But I also remain open to put my views on law that I have articulated here on trail.

It seems to bring us to a point made my Tharcymachus in Plato’s Republic, where he claims that justice is the rule of the strong. The rule of the strong is not the rule of the law but it is rule by law. This is why we cannot reduce what is legal with what is just. There is a gap between law and justice. Hence, rule by law is not just although the rule of law may be just. Law itself cannot guarantee us justice. We need right interpretation and gathering of evidence to bring justice to us.

Although force of the law is weak, law is always viewed as invading in the freedoms and lives of the people. Law is unwelcome. It comes to curb and curtail our life. There is inherent violence of law. Law although claims to protect our freedoms, it also curbs our other freedoms. Therefore, we may ask how can law be just if it entails force or violence. We have to work to make law egalitarian. To do this we have to scrutize the foreclosures that frame and interpret the law within the language of nationalism or any such ideologies. We therefore have to be attentive to the tendency to imperialise law to benefit the vested interest as well as intimidate people by interpretations of the law that favour as well as legitimate the rule by law and not the rule of law. The rule by law hides behind the mask of the rule of the law.

Law belongs to the generality and is always violent when applied to singular person. Law therefore is both on the side as well as against justice. Law is siding for as well as siding against justice. Law can only give imperfect justice this is why we have upper courts of appeal. No law can give us absolute justice. It is dangerous to equate justice with law. Law basically functions as deterrent allowing and disallowing some human behaviours. There is asymmetry between law and justice.

We conserve the law by destroying it as we keep interpreting the law again and again to align it to justice. Law remains haunted by incapacity to deliver justice. It cannot save itself from being misused used by the strong. It cannot prevent rule by law in the name of rule of law. Therefore, even when a judge purports to give his/her verdict and believes that he/ she has delivered justice, law can fail and justice can be aborted. Hence, justice aways remains in the coming. There always remains more justice to come. Law remains at the level of possibility. At the level of impossibility, law breaks down. We have to transgress the generic law and generate a singular response. The singular response cannot be generic that is norm/ rule/ law to group of people. Singular response attends to a singular person and is unique and unrepeatable. Law as such is repeatable and is interpreted to make an individual fit it. The individual being a unique person, law always fails. Law therefore is impossible at the level of possibility. But at the level of impossibility which appears to be on the other side of the grave, there is no law. There can only be guide/ pointer that enables us to respond singly and uniquely to the single others. We cannot foreclose this unique response. The only thing that we can say about it is that it is affirmative, loving and just.

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Hypocrisy is the tribute that vice pays to virtue.

- Fr Victor Ferrao