Why law?

It is quite common to hear expressions such as, “That is my right!”, “I have the right to [insert comment of choice here, such as ‘free speech’]”, “I have the right to privacy”, and so forth. So, to those who frequently trot out this phrase, I ask this question:

“What is a right?”

How many readers can answer that question? How many will have to turn to Google, or use a legal dictionary? Where do rights come from? Rights are such a fundamental thing; everybody has them, governments and courts must respect them, yet the percentage of people who can answer that question is very small.

As a person pursuing an LLB in law, I admit that I find law to be a fascinating subject. I also admit not everyone will. My purpose for writing this column though, is not to “teach” law to the readers of this website/column. What I hope to achieve is to provide some clarification of how the law works as related to issues that we see in the news daily. Far too often, the layman does not understand the concepts and principles behind the law, and there is a public outrage when behaviour does not conform to what we perceive as being “fair”. It’s the nonsensical opinions that are promulgated that stoke anger, racial hatred and other intolerance.

Before embarking on my law journey, I was one of the blissfully ignorant. Ignorant because I did not know, and blissful because my ignorance permitted me to expound views on matters I did not understand… much like many persons today. We see it daily in letters to the editors of newspapers, and contributions to online forums and even in complaints when we feel aggrieved. Later, in a subsequent column, I will come to the ‘invincible ignorant’, and how they differ from the ‘mere’ ignorant.

Law is evolutionary. It evolves in small increments as society sees fit. At the heart of the law lies the principles of fairness, justice, equity, and equality but also principles of punishment and deterrence for wrongdoing – to prevent harm to others. Law is a method of social control, clamping down on aberrant behaviour that bring harm to others and where harm has occurred, it punishes the perpetrator and tries to compensate the victim adequately and fairly.

Law is based around the society. The truth of this statement can be seen from the different legal systems around the world, which are influenced by culture and religion, as well as political agendas. In the following questions, I use the word ‘right’ to mean whether we think it is fair and ethical. By which/whose yardstick do we measure ‘rightness’ or ‘wrongness’?

Is it right to bury persons to the neck and throw stones at the head until they are dead? Is it right to throw a homosexual person off 12 storeys? Is it right to hang a person if there is a possibility that he is innocent? Is it right that the police can frame a person to satisfy crime statistics? Is it right that abortion is illegal/legal? Is it right for the Catholic Church to ban condom use while tens of thousands of deaths could be prevented by using a condom? Is it right for a man to ‘marry’ and have sex with a 12 years old girl?

When we understand how the law works, we can understand the reasoning behind court judgments and recognise the logic and legal principles Judges use to arrive at their decisions. We can also understand matters of public policy, politics, arguments (not quarrels but rather units of critical thinking). We can understand the need for contracts and courts, we can understand what a crime is and why it is a crime. We can understand the need for laws and why we should obey the law, and what penalties apply if we don’t. We even understand why the penalty is what it is and whether it is fair.

When we understand how the law works, we will understand when and how to express an opinion, based upon evidence and persuasive arguments.

Oh, as for what is a right? I’ll leave you to work that one out.