From the Collins English dictionary:
· Law. n. a binding force or statement
· Rules are instructions that tell you what you are allowed to do and what you are not allowed to do.
I grew up with an understanding that rules and laws were authoritative and binding. Perhaps this is because I was raised by Roman Catholics, in a strongly commandment-oriented culture. But perhaps not, as the above definitions illustrate. [There are other definitions for these words too.]
When we look at laws and rules, we find that few of the associated meanings confer binding authority. Even the ones that do are artificial, like the laws of our land, whose authority is actually our authority. The law of gravity is a description of how the universe operates, and it is bound by the universe, not vice versa. The laws of mathematics are definitions, created by us, and given by us the status of binding and authoritative law (strictly within the context and world of mathematics). The laws of software design (my profession) are guidelines, albeit tried and tested ones. And so on.
N.B. Out of respect for believers and non-believers alike, I will leave discussion of divine law for another day. 😉
Then I looked more closely at the laws of my land, the UK. After watching the TV drama Law & Order: UK, I started to think that most of the problems they highlight could be avoided with a bit of common sense? Then I remembered another TV drama, Judge John Deed, “a High Court judge who tries to seek real justice in the cases before him.”, as Wikipedia says. This is the problem, I think. Our courts rule according to the letter of the law, not its intent.
I have always thought that ruling by the letter of the law was stupid and petty, but that’s not much of an argument to throw against it. But why on earth would we set aside the intent of the law(s) that we have made? Surely that’s the important part?
A real-world example: the EU discovered that unscrupulous manufacturers were injecting water into ham, to maximise their profits. They introduced a rule that ham may contain no more than 5% added water. Instead of righting the wrong, reputable manufacturers all added 5% water to their ham. After all, the rule confirmed this is acceptable (i.e. not illegal) behaviour. Thanks to human nature, the rule had the opposite effect to that intended. A court that ruled according to the intent of this rule would’ve resulted in a different outcome, I think.
Ruling according to the letter of the law denies and prevents justice. Legal technicalities are one example, but there are many more. If we rule according to the letter of our laws, we must write those laws to cope with all circumstances in which they might be invoked and applied, without knowing what those circumstances will be! This is quite impossible.
Consider the easy, black-and-white, case of our law against killing other human beings. What about soldiers? OK, we’ll write an exception. Self-defence? Another (possible) exception. Defence of others? Euthanasia? Abortion? Even an ‘easy’ case is not so easy when you think about all the different ways in which it could or should be applied. When a law is broken, it happens in a context, a set of circumstances that are genuinely unique. Can we formulate laws that cope with this? Our history says no.
By empowering our courts to use our laws as guidelines, as they should be, we enable them to provide justice. We enable them to follow the (hopefully wise) intent of our laws, and of the skilled law-makers who make them. If there is a context in which a particular law-breaking is acceptable, even admirable (and there will be such, even if they don’t happen often), our courts should be free even to reward the citizen(s) concerned, if it’s just.
There are no laws or rules that we could usefully consider to be authoritative and binding. I’m glad I’ve got that off my chest. ;)