Why we need Law

Now this may sound back to basics but that is what it really is. Why do nations have a written law? Why not just do any arbitrary thing and debate it out?

The main reason we have law is that otherwise a nation will be subject to the whims and fancies of influential or powerful people who would then be at free will to manipulate or abuse the system to justify their narrow objectives or usurp more power.

Did rule of law always exist? How did it come into being?

While Britain’s Magna Carta of about 1215 is the most famous one, several other nations had a written law before that also. Why was it crafted? Prior to that, the kings use to rule by arbitrary decrees. To curtail the king’s arbitrary powers, a written law was drafted. Ironically, this was not to ensure rights of the common man; in those days the common man had no rights – they were subjects ruled for the sake of ruling elites. The rule of law was initially created to empower the nobility who resented arbitrary taxes and excesses. This written law was rescinded and revived several times throughout the English history. The rule of law became a reality in the last two centuries with focus on the rights of the common man. The turn to democracy too was in the same direction. 

The primary reason that modern societies have law is that people are aware of their rights and limits. And people are equal before the law. People with power and influence can not arbitrarily manipulate the system or abuse it to justify their illegal actions. An important aspect of the rule of law is that it can not be changed post facto. A person or group of people no matter how influential they are, can not commit an illegal act and then justify it through clever manipulation.

How is law framed in a democratic society? A bill is first tabled in the parliament and debated by the elected representatives. Then to be passed into law, it requires a clear majority vote and in several countries, a supermajority vote to the tune of 75%.

What role can society play? Can it debate laws directly? No because a nation is large and it would be impossible for all people to have an equal say. However they may debate and offer suggestions to their MPs to table a bill. For instance if a society desires to make filming of women and children’s toilets legal, they have to first table the bill in the parliament and only if it is approved by a majority of elected representatives, does it become a law. Only after it becomes a law through such a process, they may go around doing it. Until such time, it remains a criminal activity, regardless of how influential or elitist the criminals are. No law can be applied post facto. In the sense at the time of crime, the prevailing law rules.

In some countries like Switzerland, which have a direct democracy, not just MPs  but citizens can also initiate a bill. It requires a referendum of about 50,000 people to table a bill in the parliament. But again, it is debated and voted on by the “elected representatives” and only if approved by a majority in the parliament does it become law. In several other countries, people have tried to use referenda to ascertain people’s will but again that would be among “all” the people. And of course, even then it becomes a law only after it is approved by the elected bodies. And only after it becomes a law, it can be applied.

This sort of a system ensures power rests in the hands of elected representatives – of all the people in a country and applies equally to all citizens, regardless of their social status. And also that people with influence and connections can not get away with their illegal activities by using lobbies, might is right and whatnot through justifying their criminal or arbitrary actions.

The rule of law is a powerful cornerstone of a civil society to ensure the rights of people. Drafting and application of law is a well defined constitutional process such that it may not be abused by people in power or lobbies or other powerful interest groups in the society to suit their narrow ends or oppress other people.