JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(1) Law

law

Law’s roots

 Step on a bus. The law is there. You have almost certainly entered into a contract to pay the fare to your destination. Alight before you have paid and the long arm of the criminal law may be expected to pursue you. The bus is involved in an accident. The law is ready to determine who is responsible for the injury you sustained. Your job, your home, your relationships, your very life – and your death, all – and more – are managed, controlled, and directed by the law. The legal system lies at the heart of any society, protecting rights, imposing duties, and establishing a framework for the conduct of almost every social, political, and economic activity. Punishing offenders, compensating the injured, and enforcing agreements are merely some of the tasks of a modern legal system. In addition, it endeavours to achieve justice, promote freedom, uphold the rule of law, and protect security.

To the layman, however, the law often seems a highly technical, bewildering mystery, with its antiquated and sometimes impenetrable jargon, obsolete procedures, and interminable stream of Byzantine statutes, subordinate legislation, and judgments of the courts. Lawyers tend to look backwards. The doctrine of precedent, hallmark of the common law, dictates that what has gone before is what now should be, thereby affording a measure of certainty and predictability in a precarious world.

But the law does not stand still. Globalization, rapid advances in technology, and the growth of administrative regulation place increasing strain on the law. Domestic legal systems are expected to respond to, and even anticipate, these changes, while many look to international law to settle disputes between states, punish malevolent dictators, and create a better world. These are among the numerous challenges to which contemporary legal systems are meant to rise.

The law is rarely uncontroversial. While lawyers and politicians habitually venerate its merits, reformers bewail its inadequacies, and sceptics refute the law’s often self-righteous espousal of justice, liberty, and the rule of law. Few, however, would deny that, in most societies, law has become a significant instrument for progress and improvement in our social, political, moral, and economic life. Think of the transformation that legal rules have wrought in respect of numerous aspects of our lives that were once considered personal: the promotion of sexual and racial equality, safety at work and play, healthier food, candour in commerce, and a host of other admirable aspirations. Laws to protect human rights, the environment, and our personal security have mushroomed. Nothing seems beyond the reach of the long arm of the law. This boom in the law-making business renders it impractical both for citizens to become acquainted with its myriad rules, and for the authorities to enforce them.

The law is news. Murders, mergers, marriages, misfortunes, and mendacity are daily media fodder, especially when the misbehaviour is played out in court. Sensationalist trials concerning celebrities are, alas, only the small tip of a large iceberg. But what is law? In very broad terms, two principal answers have been given to this deceptively simple question. On the one hand is the view that law consists of a set of universal moral principles in accordance with nature. This view (adopted by so-called natural lawyers) has a long history dating back to ancient Greece. For so-called legal positivists, on the other hand, law is nothing more than a collection of valid rules, commands, or norms that may lack any moral content. Others perceive the law as fundamentally a vehicle for the protection of individual rights, the attainment of justice, or economic, political, and sexual equality. Few believe that the law can be divorced from its social context. The social, political, moral, and economic dimensions of the law are essential to a proper understanding of its workaday operation. This is especially true in times of change. It is important to recognize the fragility of formalism; we skate on dangerously thin ice when we neglect the contingent nature of the law and its values. Reflection upon the nature of law may sometimes seem disconcertingly abstruse. More than occasionally, however, it reveals important insights into who we are and what we do. The nature and consequences of these different positions should become apparent before long.

 

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