The law is the public conscience.
– Thomas Hobbes, English philosopher
Associate Justice Oliver Wendell Holmes, Jr. of the United States Supreme Court is revered and remembered for his famous observation that “the life of the law has not been logic: it has been experience.” His 1881 classic The Common Law has other veritable and valuable gems in it.
Over the years the life of the law has been vacillating between a liberating apparatus and a controlling mechanism. It is considered liberating if a law protects the public from some perceived hazard or danger.
The law is Janus-faced as a controlling mechanism that allows free passage to a hazard or danger. A fine example is our speeding laws pitted against the sales of motor vehicles engineered to perform way beyond the prescribed speed limit.
Justice V. R. Krishna Iyer of the Supreme Court of India boldly asserted that “the jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.”
The life of such a law as Justice Iyer recommended must surely be painful and hazardous to insurance companies that rake in billions and grudgingly pay out millions in claims.
The life of the law gets silent and stunted during a war – Latin: inter arma enim silent leges. Its liberating and controlling power is impotent when a clash of arms becomes the national preoccupation. Ask any Ukranian.
Most democratic nations do not need war for their laws to fall silent. Their policies and programmes are so sick requiring and inspiring a war of minds to rid the systemic corruption and depletion of the national assets.
Sometimes, the life of the law is void of reason and purpose. At best, it’s a shining star, even a shooting star, but its trajectory is wobbly and uncertain. Belief, faith and trust in the law can be a painful experience especially when you fight a controlling law that wins hands down.
Edward Coke stated that “reason is the life of the law; nay, the common law itself is nothing but reason – the law which is perfection of reason.” But, he failed to mention or engage in the belief that human reason can be cruelly fallible at worst.
Look at any statute book, and you will have to desperately find an expert researcher to piece together the various sections of the law spread all over the statute book when looking for one particular subject matter. Try, for example, the powers, duties and functions of the management corporation in the Strata Management Act 2013 (Act 757).
American President Eisenhower claimed that “the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Was he around when the rule of law was non-existent? Was he referring to an ancient past when the rule of law as we know today existed in another organic form?
Associate Justice Sandra Day O’ Connor of the US Supreme Court may have indulged in a judicial gaffe when she observed that “commitment to the rule of law provides a basic assurance that people can know what to expect whether what they do is popular or unpopular at the time.” Sorry, my Lady, did you mean to say what is right or not right at the time?
New York’s former mayor lamented that “the knife of corruption endangered the city, but the scalpel of the law is making us well again.” Sorry, Mr. Mayor, ask Frank Serpico what it’s like living with a .22 calibre bullet in your face where no medical or judicial scalpel can extract it!
In Malaysia, the life of the law may require adventurous statutory knights-errant to explain and expound the reason(s) for section 84 Courts of Judicature Act 1964 (Act 91) that prohibits High Court judges from addressing constitutional questions. It has to be sent to the Federal Court.
“The power of the lawyer is in the uncertainty of the law,” suggested Jeremy Bentham. But, it’s the judge, not the lawyer, who decides that uncertainty, or relegate it to the legislature for necessary amendment before passing judgment based on a bad law.
The trite claim of an independent judiciary seems to be the life of the law yearning to breathe free in most civilised and advanced democracies.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
