The law serves political purposes and interests of certain demographics in any society.
The relationship between law and politics vexes many people. It’s misunderstood everywhere, including by lawyers and the law professoriate. Most people assume that the law is some pristine innocent overarching phenomenon that stands above society to do eternal good. That’s why law is usually associated with justice and equity.
Unlike politics, which is viewed as “dirty,” law is often presented as the ally of the poor, the beleaguered and the powerless. It’s true that the law can sit at the intersection of power powerlessness to reduce the caprice of the powerful over the powerless. It can be a tool for social change to restore, or enhance, human dignity. But the law is fundamentally about social order and stability.
In the novel Oliver Twist, Charles Dickens says the “law is an ass – an idiot.” This is a frustration most people feel about the law, especially when they are on its wrong side. That’s because the law is always a double-edged sword. Like the knife, it cuts both ways. Thus the law is generally indeterminate.
No one really knows what the law is, not even lawyers and judges. That’s why courts in the same jurisdiction disagree on the effect of the law on the same facts of a case a lot of the time. Often, you will find the High Court being reversed by the Court of Appeal, and both by the Supreme Court. The law is unpredictable.
You often see judges on the same bench disagree. Those who are familiar with the jurisprudence of the Supreme of the US – one of the most hallowed tribunals anywhere – know of the searing dissents of the minority over the rulings of the majority. Sometimes you wonder whether the judges are reading the same constitution. Or whether they were taught by professors who had a broadly accepted understanding of the law. You ask, how colleagues can have such an outlandish understanding of the application, or interpretation, of the same legal norms. You wonder whether some judges or lawyers interpret the law in bad faith. I have even heard colleagues refer to some courts or judges as evil. Imagine!
Under sharp scrutiny
In Kenya, the law and the legal profession have come under sharp scrutiny over the impeachment of Deputy President Rigathi Gachagua. Some of the country’s best and wizened legal minds have been locked in a battle of wits and oratory either for, or against, Mr Gachagua. We like to think of lawyers as professionals who zealously represent the interests of their clients with vigour and without pity for the other side. We teach law students how to go for the jugular of the opponent – eviscerate your adversary. In the adversarial legal system, you are supposed to destroy your opponent in the service of your client. In fact, shred them to unrecognisable pieces.
For lawyers, the bloody legal battles in court are not personal. Don’t be fooled by the vigour with which they go after their opposite side. The opposing sides belong to a brotherhood and sisterhood we call the legal profession. After a hard-fought court battle, the protagonists are likely to be found at a local pub enjoying drinks in uproarious laughter. It’s not personal. It’s a job. It’s their livelihood. The opposing counsel could very easily switch sides. It’s just a matter of who hired them. That’s why some folks unflatteringly call lawyers hired guns, or guns for hire. It’s these friends of the court who are supposed to help judges decide on the law to render judgments.
Political views
What’s my point? First, the law is a fluid, talking, living phenomenon. It’s not fixed, or frozen. Remember this – in a democracy like Kenya, the law is made by elected politicians. Yes, those horribly fallible people. Remember this also – judges are appointed by politicians. Finally, keep this in mind – lawyers and judges are human beings with political views and opinions. In other words, judges – as people – come to the bench with pre-conceived biases. Judges, like all people, have biases. A judge who is an atheist has a particular worldview that influences his interpretation of the law. So is a judge who is a Muslim or Christian. A woman judge may see a legal issue from a completely different lens than a man.
It’s these biases and preconceived notions – about upbringing, education, identity, national origin, social status and other factors – that determine the political views of the judge. Often, you can predict how a judge will rule on a particular issue if you understand their background and political philosophy.
That’s how we know how the Supreme Court of the United States, which has a conservative supermajority, will rule on particular matters. The law serves political purposes and interests of certain demographics in any society. It’s never neutral, unbiased, non-partisan or apolitical. The law is the manifestation and expression of politics through seemingly neutral norms.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. On X: @makaumutua.
