Laws, which are rendered as an important means to suppress injustice and establish justice (a broad concept that is based on fairness, equality of rights and morality), are very important for all societies. Without laws, or a system of regulations, standards, principles and norms made by the government of a country, the rule of law is impossible and, without the rule of law, the functioning of any society will be almost impossible as there will be chaotic situations everywhere in society, ranging from the highest to lowest tiers. But the legal justice, or the rule of law, is, of course, not as established as is desired. In some countries, it is more established than in other countries.
It is relevant to say something about the doctrine of the rule of law here. The doctrine is usually indicative of the supremacy of law over all in a political system including all persons, institutions and entities, public, private and others, including the government. It is the observance and supremacy of civil laws. The doctrine requires putting emphasis on and measures for securing adherence to several principles including the supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, legal certainty and procedural and legal transparency. In the doctrine of the rule of law, equality means that everyone is equal before the law, regardless of socio-economic class, caste, gender, or religion. Of course, the inclusion of the principles of human rights is undeniable in the establishment of the rule of law.
The rule of law is based on laws. But an important question remains on whether laws are perfect or without any limitation. Of course, laws are not perfect and it is difficult for laws to be perfect because of many reasons including the evolutionary nature of laws, a lack of universal agreement on the understanding of the abstract concept of justice (based on which laws are made) and the reflection of the interests of the ruling party in the law. Since laws are evolving, the existing laws are amended and new laws are formulated depending on new situations. For example, there was no cybercrime law in the past but it now exists because of situational demand. Furthermore, there are disagreements regarding the punishment among countries. While the death sentence is given in many countries, it is not preferred in some others countries.
There are also many limitations of the rule of law, especially in terms of the application of the doctrine of the rule of law. Some notable limitations are corruption among judges or relevant authorities, autocratic and/or bad leadership, political favoritism or nepotism that increase the chance for politically powerful persons and people having monetary power to evade laws. Also, there are other limitations including the immunity of some individuals in authority (including diplomats) and systemic inefficiency (or technical difficulty of management especially when the courts need to deal with too many obligations or there is over-crowding of the court) that increase the possibility of the application of laws in an biased/unequal manner, no matter what the doctrine of the rule of law requires. Of course, the extent of such limitations in the application of enacted laws varies across countries.
A relevant question may, therefore, be asked: Is it possible to ensure legal justice, which is the application of the abstract concept of justice through the implementation of laws, as expected? This is definitely not, though legal justice always exists in every society with differences. Given that the concept of justice is not universally agreeable, laws made to reflect the abstract concept of justice are imperfect/flawed, and the update of laws is made in delay, securing the desired legal justice in the absolute sense is not possible even if the enacted laws of a country are applied as they are. Moreover, legal justice, or the rule of law, does not exist or is not possible to exist for all in the relative sense though its extent may vary across countries, because of limitations in the application of the rule of law.
It is relevant to note that laws aim at achieving various ends including establishing standards, maintaining order, resolving disputes and social problems, protecting rights, liberties or freedom, securing people’s access to public services, restraining the abuse of power and curbing corruption. In this respect, the punishment that aims at protection (of society from criminals), retribution, reparation, deterrence, reformation and vindication plays an important role. Though there are many limitations of the rule of law in practice, it is undeniable that laws have been bringing criminals/wrongdoers of different tiers including those affiliated with the establishment to justice, establishing various rights of millions of people across countries, including those countries where the rule of law is less established, and bringing many other beneficial outcomes through upholding the rule of law for a long.
But because of imperfect laws, the discriminatory application of laws and other limitations in the rule of the law, some questions can be raised on punishment, though the type and extent of punishment are usually given in proportionate to the harm committed by criminals. Is legal justice providing more emphasis on certain punishments such as the death sentence and lengthy imprisonment? To what extent, are different sorts of punishment justified when crimes are committed on many occasions for contextual reasons that are created by society? To what extent, are different types of punishment justified against less powerful individuals when more powerful ones remain beyond justice on many occasions? Of course, these are very pertinent questions, even if their answers are arguable. But based on the above discussions, a rethought in giving the type and extent of punishment seems reasonable to me.
Of course, more flawless efforts are important for legal justice. Thus, emphasis needs to be given to making laws as flawless as possible by reflecting the concept of justice, though the type and punishment in the law can vary country-wise. Moreover, efforts are needed to relax punishment in the law and the strict application of laws whenever possible. Lengthy imprisonment needs to be avoided whenever possible. Indeed, the social loss of some sort of criminals can be more than lengthy imprisonment on many occasions. Moreover, increased emphasis is needed on circumstances in providing punishments to criminals. More efforts are also important to make sure that laws reflect human rights as desired and corrective options are given the deserving emphasis in the legal justice. Indeed, increased rehabilitative deterrence (including educational and vocational programs, treatment center placement and counseling) can help correct various criminal behaviors.
No less important is that different acts are sometimes done with good intention, bring good outcomes and do not bring negative outcomes, though they appear to be illegal or lack legal support. To me, depending on circumstances, such acts should not be strictly seen from the legal lens. Why should this consideration be unjustified when laws are not flawless and are inappropriately applied on many occasions? Also, emphasis needs to be given to the improvement of social contexts. Indeed, many crimes are committed by those who are the victims of the contexts where social justice that indicates the deserving economic, political and social rights and opportunities for all is not present for all as is expected.
Amir Mohammad Sayem is the Chief Editor of Dhaka Opinion Magazine and an aAuthor, researcher and commentator on miscellaneous issues including social, political, environmental, public health and international relationsDhaka, Bangladesh. Email:sayemphps@yahoo.com.
Email:sayemphps@yahoo.com
