Why the law is a rule, a fiat

Most people conflate the term “law” with the “rule of law.” The law is a rule, a fiat, or a regulation produced by a sovereign, a person, or an institution with the authority to do so. That’s the formal elementary test for the legitimacy of any law.

What’s the source of the law? Did the lawmaker, or lawgiver, have the requisite formal remit to issue it. If so, then we can dig deeper in secondary analysis to ferret out what we would term as “substantive legitimacy” of the norm, or law.

That’s when we can delve into an excavation of whether the law in question is undergirded by the “rule of law.” Do the law and rule law converge?

It’s clear to legal scholars that distinction exists between the “law” and the “rule of law.” The famous writer Charles Dickens popularised in Oliver Twist the English expression “the law is an ass – an idiot.”

Obviously, Dickens wasn’t using the term “ass” to refer to a piece of human anatomy. No – he was using it to describe an animal in the horse family like a donkey or mule. Of course, an “ass” can also be used in colloquial English to describe a foolish or stupid person.

But as used by Dickens, the law like the donkey or mule, is rigid and stupid because it’s obstinate in its application. This is to say that the law should be applied as written.

This is the idea that black letter law is positive law – and is what it is, and nothing more. The concept of the “original intent” of the framer or drafter of the law – known as originalism – is that the law or the constitution must be interpreted as the framers intended. 

The law and the rule of law

Understood in this sense, then the law is indeed an ass, an idiot. That’s because this understanding of law freezes a dynamic, living social phenomenon in the museum of antiquities. It turns humans into unthinking automatons and morons who have no evolutionary capabilities.

It’s to say that if society had stood still in the primitive or Neanderthal Stone Age, then perhaps law and its application wouldn’t be an ass. 

For a long time, the law and the rule of law were thought of in the same breath. But today, the rule of law has come to mean something different from the law itself, although the two are still conjoined at the hip like Siamese twins. The rule of law has also mutated. 

Initially, it used to mean the assured fidelity and certainty in applying the law without fear or favour, and without regard to social or other evolutionary concept.

So, for example, if the law provided for separate water drinking fountains or bathrooms for different races, it would have been an offense for a member of one race to use a facility reserved for members of another race.

Thus, an Indian using a toilet reserved for a White person would be liable for a criminal offense. In this milieu, laws had to be faithfully executed without regard to their fairness or whether they were discriminatory, or not. 

That was the rule of law then. But today, the rule of law and the law could be having same or similar meanings. The rule of law implies that whatever laws are being enforced or interpreted must perforce have certain core dignitarian elements in them.

Fair and non-discriminatory

To wit, the laws must be fair, just, and non-discriminatory. They must also not be unduly harsh in the punishments they impose, or be cruel, inhuman, or degrading. The laws must be democratic in every sense of the word.

That’s the reason why its unarguable that in Apartheid South Africa, neither the rule of law, or democracy, could’ve existed because the internal logical of the system was to subject, discriminate, and enslave people of color – and especially Black people – so they could serve and be disposable to White people.

In this sense, the notions of equality and equity are central to the concept of the rule of law. Any law that discriminates on the basis of religion, political opinion, sex and sexuality, national origin, race, and ethnicity among other suspect classifications abrogates the concept of the rule of law. Although these may be legal fictions and scientifically unprovable identity classifications, they must be given substance because they are lived experiences. 

I end by arguing that the law and the rule of law shouldn’t in this day and age in the evolution of homo sapiens be contradictory. All laws passed today by any authority must be just, fair, democratic, and non-discriminatory and provide equal protection for everyone irrespective of their identity.

Unless there’s a reason to discriminate so as to equalise and give equity for historical injustices and other malignant forces of marginalisation and exclusion. That’s why today the law shouldn’t be an ass, an idiot as opined by Dickens in his native England during the rigidly oppressive Victorian era.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.