JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(13) Law

Jeremy Bentham: Man and Myth

An Introduction to the Principles of Morals and Legislation

Jeremy-Bentham

The Future of the Law

Internal Challenges

In addition to the problem of bureaucratic regulation and the often unbridled discretion it generates, there are a number of intractable questions that need to be confronted by legal systems everywhere. Among the most conspicuous is the so-called ‘war on terror’. It requires little perception to realize that in the space of less than a decade many legal systems are faced with a variety of problems that test the values that lie at their heart. How can free societies reconcile a commitment to liberty with the necessity to confront threats to undermine that very foundation? Absolute security is plainly unattainable, but even moderate protection against terror comes at a price. And no airline passenger can be unaware of the cost in respect of the delays and inconvenience that today’s security checks inevitably entail. But though crime can never be entirely prevented, modern technology does offer extraordinarily successful tools to deter and apprehend offenders. Closed circuit television (CCTV) cameras, for instance, are able to monitor unlawful activities, such recordings supplying prosecutors with powerful evidence in court against the filmed villain. To what extent should the law tolerate this kind of surveillance? Consider the following example, which may help to demonstrate the difficulty, and the unavoidable ‘balancing’ between competing rights that is a conspicuous characteristic of modern law.

 

I like my car. Its silver body induces in me a pleasing sensation. Or did. A few days ago, as I was about to unlock the door, I noticed a deep scratch that stretched along the side of the car. A key or perhaps a screwdriver had been dragged over its metallic surface. A similar wound had been inflicted on the bonnet. I was furious. Not unlike a character in a movie, I scoured the vicinity in the vain hope of some sign of the vandal, my face suitably arranged in an expression of ferocious indignation. But the miscreant was long gone. The offence had been committed, I presumed, during the night. I was left to my curses. The car was parked in a well-lit area, but this was plainly no deterrent. Why, I instantly lamented, was there no CCTV camera nearby to record the villain’s identity? I wanted him caught and punished.

A trivial instance of criminal damage, perhaps, but it would be ingenuous not to think that most people would support measures that might successfully prevent crime and, especially since 11 September 2001, acts of terrorism. Surely, a terrorist, no less than the delinquent who damaged my car, would be thwarted were a CCTV to record his (or, less likely, her) every move? Law-abiding citizens must feel safer in the knowledge that this surveillance is taking place. And why not? Polls confirm their wide support. Who but the robber, abductor, or bomber has anything to fear from the monitoring of his or her activities in public places? Nor should it stop there. Advances in technology render the tracking of an individual’s financial transactions and email communications simple. The introduction of ‘smart’ ID cards, the use of biometrics, and electronic road pricing represent major developments in methods of surveillance. Only the malevolent could legitimately object to these effective methods of crime control. Would that this comforting view were true. We cannot afford to pussyfoot with terrorists, but how far should we be willing to trade our freedom for security? In the immediate aftermath of the events of 11 September 2001, politicians, especially in the United States, have understandably sought to enhance the powers of the state to detain suspects for interrogation, intercept communications, and monitor the activities of those who might be engaged in terrorism. The law faces formidable difficulties here. Draconian powers are probably unavoidable during times of war: arbitrary powers of arrest and detention, imprisonment without trial, secret trials, and the like. How long can a free society tolerate these infringements of liberty? What lasting damage may be inflicted on the rule of law and individual rights? Can the law continue to protect citizens or will citizens need protection from the law? Are the courts able to act as a bulwark against these attacks on freedom?

A vivid example of a society that attempted a comprehensive assault on ‘terrorism’ is apartheid South Africa. Heavy-handed laws made substantial legislative inroads into the jurisdiction of the courts in the realm of civil liberties. The removal of the authority of the judiciary to question the exercise of executive power under a wide range of circumstances considerably attenuated the authority of judges. The ever-increasing sphere of unchecked executive discretion in matters of fundamental liberty such as detention, deportation, banning, and censorship reduced the members of the judiciary to impotent spectators of administrative action. This was a grotesque distortion of their calling. Moreover, even where a courageous judge was able to interpret the law in favour of liberty, he was, in practice, likely to have his efforts frustrated by legislation to nullify its effect. A less egregious engine of change is the internationalization or globalization of law. The world has witnessed an escalation in the influence and importance of international (the United Nations) or regional organizations (such as the European Union). These sources of law diminish the authority of domestic law. Nor has the law been spared the McDonald’s effect of powerful multinational corporations influencing the character of banking, investments, consumer markets, and so on. All have a direct impact on the law. Furthermore, most legal systems face unresolved dilemmas in several of the disciplines. Some of these problems were touched upon there. They are both substantive and procedural, and include several quandaries concerning the criminal justice system. What is the future of the criminal trial in the face of complex commercial offences, often involving sophisticated know-how? Is the jury trial appropriate in these circumstances, or at all? Is the civil law inquisitorial system preferable to the common law adversarial approach? In many jurisdictions, access to the law is patchy. The poor are not always provided with adequate access to the courts and other institutions of dispute resolution. No less prickly issues beleaguer private law. For example, many legal systems wrestle with the difficult question of compensation for personal injuries, and the effect of insurance on the award of damages.

While the law on its own can never transform, or indeed conserve, the social order and its values, it has the capacity to influence and shape attitudes. Efforts to achieve social justice through law have not been an unqualified success. Statutes outlawing racial discrimination, for example, represent only a modest advance in the cause of equality. While little can be accomplished without legal intervention, the limits of law need to be acknowledged. There is a growing tendency to legalize moral and social problems, and even to assume that the values underpinning democratic Western legal systems, and their institutions, can be fruitfully exported or transplanted to less developed countries. This may be a Utopian view. Equally sanguine may be the proposition that economic development necessarily presages respect for human rights, as is frequently contended in the case of China.

Modern governments espouse highly ambitious legislative programmes that frequently verge upon social engineering. To what extent can legislation genuinely improve society, combat discrimination and injustice? Or are courts more appropriate vehicles for social change? Where, as in the United States, a vigorous Supreme Court has the clout to declare laws unconstitutional, the legislature has no choice but to fall in line, as it did following the seminal case of Brown v Board of Education of Topeka in 1954. A unanimous court declared the establishment of separate public schools for black and white students ‘inherently unequal’. This landmark decision opened the doors (literally) to integration and the birth of the Civil Rights Movement. Though discrimination will always exist, few would deny that the case changed the law – and society - for the better.

 

Da Vinci’s code

The time will come when people such as I will look upon the murder of (other) animals as they now look upon the murder of human beings.

Leonardo da Vinci

 

Without effective enforcement, laws cannot fulfill their noble aspirations. Legislation prohibiting animal cruelty is a case in point. Vivisection, battery farming, the fur trade, hunting, trapping, circuses, zoos, and rodeos are merely some of the practices, apart from the direct intentional infliction of pain on an animal, that cause misery and suffering to millions of creatures around the world every day. Anti-cruelty statutes have been enacted in many jurisdictions, yet in the absence of rigorous enforcement, these laws constitute mostly empty promises. And enforcement is a major hurdle: detection is largely dependent on inspectors who lack the power of arrest, prosecutors who rarely regard animal cruelty cases as a high priority, and judges who seldom impose adequate punishment, not that the statutory penalty is itself sufficiently stringent.

In an increasingly anxious world, there is an understandable tendency to look to the law to resolve the manifold threats to our future. In recent years, the dangers of pollution, depletion of the ozone layer, global warming, and other threats to the survival of many species of animal, marine, bird, and plant life have assumed a higher profile. A growing number of states have introduced legislation to attempt to limit or control the destruction of the planet. The law, however, often proves to be a rather blunt instrument. For example, in the case of the criminal liability of a company for pollution, a conviction depends on proof that those who control the company had the requisite knowledge or intention. This is notoriously difficult to prove. And even where these acts are strict liability offences, the fines imposed by courts have a limited deterrent effect. It may be that the numerous international treaties, conventions, and declarations on almost every aspect of environmental protection are likely to be more effective, though, as with the law, the predictable stumbling block is effective enforcement.

 

The law and the suffering of animals

 

The day may come, when the rest of the animal creation may acquire those rights which never could have been withholding from them but by the hand of tyranny. The French have already discovered that the blackness of skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized, that the number of legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps, the faculty for discourse? … [T]he question is not, Can they reason? Nor, Can they talk? But, Can they suffer? Why should the law refuse its protection to any sensitive being? … The time will come when humanity will extend its mantle over everything which breathes...

Jeremy Bentham,

Introduction to the Principles of Morals and Legislation

 

 

Technological challenges

 

There is nothing new about the law’s struggle to keep abreast with technology. Yet the last 20 years have witnessed an unprecedented transformation of the contest. Digital disquiet easily spawns alarm and anxiety. The emergence of information technology, to select only one obvious instance, poses enormous challenges to the law. Attempts legally to control the Internet, its operation or content, have been notoriously unsuccessful. Indeed, it’s very anarchy and resistance to regulation is, in the minds of many, its strength and attraction. But is cyberspace beyond regulation? The distinguished legal academic Lawrence Lessig has persuasively argued that it is susceptible to control, not necessarily by law, but through its essential make-up, its ‘code’: software and hardware that constitute cyberspace. That code, he suggests, can either produce a place where freedom prevails or one of oppressive control. Indeed, commercial considerations increasingly render cyberspace decidedly amenable to regulation; it has become a place in which conduct is more strongly controlled than in real space. In the end, he maintains, it is a matter for us to determine; the choice is one of architecture: what sort of code should govern cyberspace, and who will control it? And in this respect, the central legal issue is code. We need to choose the values and principles which should animate that code. Information is no longer merely power. It is big business. In recent years, the fastest growing component of international trade is the service sector. It accounts for more than one-third of world trade – and continues to expand. It is a commonplace to identify, as a central feature of modern industrialized societies, their dependence on the storage of information. The use of computers facilitates, of course, considerably greater efficiency and velocity in the collection, storage, retrieval, and transfer of information. The everyday functions of the state as well as private bodies require a continual supply of data about individuals in order to administer effectively the numerous services that are integral to contemporary life and the expectations of citizens. Thus, to mention only the most conspicuous examples, the provision of health care, social security, and the prevention and detection of crime by the law enforcement authorities assume the accessibility of a vast quantity of such data, and, hence, a willingness of the public to furnish them. Equally in the private sector, the provision of credit, insurance, and employment generate an almost insatiable hunger for information.

 

 

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