Guest post: in the name of ‘law’, or ‘justice’, or whatsoever?



*** This is a guest post by my close friend, Edward Tanoto. He is currently studying business in, you know, the university he already mentioned in the following paragraph. Feel free to agree or disagree with his thought, but as I have emphasized in previous posts, let us respect each other’s opinions, and if you find yourself in absolute, complete disapproval, let us agree to disagree.


In The Name of “Justice”

It was February 29, 2016 – it was the first day of my first semester in University of Melbourne and for me! Walking the footpath to class, I was excited. The first lecture will be on law – on how JUSTICE can be enforced through the rules of conduct. Being a mystery-novel addict, I could hardly wait until I finally manage to dive into the core principle of the democratic judicial system. The clock was ticking, the minutes grew unbearable. Finally, the lecturer came and it was about to begin. “I bet she’ll say something inspiring!” was what I thought. When the professor finally started talking, she said “I’d like to first correct the one assumption you guys might carry. Decisions made in the court according to the rules of law DON’T HAVE TO BE JUST. A court is not a place to seek and serve justice.”…. so much for the inspiring quote.

Some of you, like me, might be asking yourselves “If the law is not intended to enforce justice, then what does it stand for?” The online Merriam Webster dictionary defines law as ‘a rule of conduct or action prescribed or formally recognised as binding or enforced by a controlling authority.’ Put simply, a law stands for a PHYSICAL or VIRTUAL BODY, delivering the ORDER of that body, enforced by MEMBERS who SUBSCRIBE to that order toward the PARTIES INTENDED of that order. All four elements are essential for any law to take effect. We shall not delve deeper into these different aspects as it is unrelated to the purpose of our discussion. However, notice that the notion of JUSTICE is not found among those 4 essential elements. Why is this so?

Before I begin, however, I would like to simplify the contention of the law discussed. This is to prevent bumping into major differences between the different laws enforced by different body. I shall be expounding on a law that stands for a FREE body, delivering the order of COMMON LAW, enforced by the PARLIAMENTARY LEGISLATION and intended toward ITS CITIZENS. Points 3 and 4 are specific to this order but point 3 is applicable to other rules of conduct.

  1. The core principle of law is enforcing order, not justice.

This simple notion is similar to the age-old argument of democracy vs communism. We are however, not interested in the different ideology each postulates. We are more interested in the different types of market offered by each of the two. The open market in democracy is adopted to effectively allocate resources and maximize total welfare of the society (efficiency). The centrally planned market in communism is meant to distribute resources equally to the society thus giving everybody a fair share of the economic pie (equity).

Much like the market scenario, the law is mainly concerned with maintaining the status quo as it is, assuming the status quo offers the highest good to the society. The law thus becomes relatively inert and unchangeable. The certainty that comes from this is important to law as it gives assurance and predictability that the same principle will hold true in the future. This assurance subsequently promotes order as people come to associate certain behaviour with certain punishments or rewards by the law.

Justice, however, is concerned with adjusting the law to suit the circumstance at the time of occurrence. As various factors may contribute in causing different breaches of the law, it is then important to adjust the law to suit those different elements. While this is a sound argument, it is not the main concern of the law. Even though adjustments can be made to adapt with the circumstance, it is generally difficult to persuade the law to excuse or change its established rule to suit the interest of the moment. This adjustment falls under ‘equity’ category and is only considered after determining the type of breach according to the existing law. Put it in another way, order reigns supreme over justice.

  1. Justice is relative, but the law is certain.

Do you think a thief should be spared? What if he steals to feed their family? Or to cure his sick daughter? What if he accidentally murders someone during the conduct?

Each of you may have different answers and suggest different degree of consideration toward the thief. That is perfectly normal and understandable. It is also, however, the biggest flaw of justice – everybody has a different notion of it. What holds true to you may not necessarily hold true to others. It is impossible to accommodate the law to suit the preference of the individuals. For this reason, it is equally impossible to enforce justice to everyone. The law, therefore, is not able to plant its root on justice simply because it lacks the one most integral aspect of the law – certainty.

Of course, it is not possible to get an accurate assessment of an occurrence of breach without looking at all the contributing factors that give rise to the offense. When traced to a reasonable extent, backtracking is able to pinpoint and help determine the degree of breach and the reason of breach – both important aspects of a criminal investigation. However, there is always a limit. This may vary among countries but it is generally traced only up to the point where the event has a “significant” role in contributing to the breach. Again, there exists the possibility that some limit may be premature and may subsequently obscure investigation to the root of the problem, serving only partial justice.

Yet this is not a problem for the law. It is only concerned with preserving certainty and order in the society. So long as it remains that way, no extra energy will be wasted to further their find – at least not until the next related breach.

  1. The law is made by consensus, not individual interest.

As previously explained, it is impossible to cater to each of our own notion of justice. Hence, in a democratic system, rules of conduct are made through parliamentary procedures and consensus.

Under the common law, a Bill is first suggested by members of the legislature and told to the Senate. Should the Senate vote to approve it, a draftsperson will then draft out the Bill. The draft is then read to the members of the House of Origin. A debate occurs and if the Bill is voted and approved, it will go to the House of Review. The members of the House read and debate over the Bill, pointing out necessary changes when seen fit. After all the changes, the House will then vote on the Bill. If the majority concurs, it becomes an Act and is passed for Royal Assent. The rest of the process, is based on our shared experience.

Notice that the law consists of (at minimum) three votes – those by the Senate, the House of Origin, and the House of Review (any amendments must again be voted on when finished). In each of these votes, decision by the majority will be the one passed into law. This poses a problem – what about the minority? A law that bans face covering will not bid well with pious Muslim women (a reference to the French parliamentary decision in 2010). Similarly, a law that requires every person to subscribe to a religion is unjust to free thinkers and atheists (a reference to Indonesia’s 1st principle of Pancasila and the subsequent Clause 28(e) of The Constitution of the Republic of Indonesia of 1945; in fact, atheism is actually quite a taboo topic in this country).

From a utilitarian point of view, there may be security benefits conferred to the public by either removing the cover or requiring your religions stated on IDs. It may make it harder to hide your real identity. However, it also erodes certain religious values of Islamic belief itself, or for the case of religions-on-ID discourse, the sense of hypocrisy that many of us feel religion is a personal matter, not something that state ought to intervene.

How much must the minority bend to the will of the majority? While the answer to this is open for discussion, it purports the fact that it can be hard for justice to find its place in the law.

Despite all its apparent bleakness, the law is not necessarily fixed for good. In common law, equity exists alongside the law and trial by the jury exists alongside trial by the judge. We have come to recognise that various circumstances can give rise to certain offences. The law may be stubbornly fixed, but given the right reason, it can make an exception.

Themis, or the Greek equivalent of Iustitia (Lady Justice) is depicted wearing a blindfold while carrying a sword and a balance. The trinity symbolises decisions and penalties based on the objectivity of evidence and reason, impartial to subjectivity and emotion. However, let us also not forget that she is also blind. Perhaps it is time for her to discard the blindfold and “see” the law as how it fits with time and changes.