Achieving a functioning society
BREAKTHROUGH - Elfren S. Cruz (The Philippine Star) - September 20, 2020 - 12:00am

When a government controls both the executive and legislative functions, it is easy to pass any law that they want. For example, the law on anti-terrorism has been passed with the justification that it is an effective law. What does effective mean? It depends on what we actually mean.

The other concept in law is the rule of law. Do these two concepts need to be opposite of each other? Or can we say that, in fact, for laws to be effective we must have a society that adheres to the rule of law.

According to Professor Alan Macfarlane: “One index of effectiveness is whether there is the rule of law but what does this mean? It could be interpreted as people being prepared to settle disputes through legal processes rather than by force. In most societies people fear and hate the law, or believe it is weak and corrupt. To persuade people to use the law as normal process for settling disputes is enormously difficult and requires political skill and good fortune. It happened in early England, but it is still not widespread in many parts of the world.”

Macfarlane therefore believed that the rule of law exists only in a few countries. The prevailing view in most parts of the world is that there is one law for the powerful and the rich, and another law for the people.

The rule of law depends on the uniform application of laws for the rich or the poor. This requires that the legal process should be separated from the political process so that judges and the courts should be independent.

Coercion of judges and the court is not always visible. Ever since I can remember, it has been true that those who can afford to hire better and more expensive lawyers will have an advantage in the courts.

The other problem in the effectiveness of the law concerns the degree by which people abide by legal decision. People will rarely follow a decision that is against their interest. There are of course different ways of making sure decisions are not followed. Again with the right kind of lawyers, decisions can just be postponed or moved from one court to another. There are even instances when decisions by one court can be changed by another court.

This is one of the reasons that ordinary citizens do not feel protected by the law. The State has all the power and whoever controls the state will normally control the courts.

In spite of all these difficulties, each society must have laws if only to legitimize their actions. China will impose its will on Hong Kong even against the wishes of its people. But even here, even if China has unparalleled power to do what it wants, it still passed a law to legitimize its control of the daily life of Hong Kong.

The concept of individual human rights is a very attractive idea. It has become a central idea in many Western countries. It has become a doctrine among many activists. The idea of the protection of the weak against the strong is attractive. The rebalancing of unequal relationships in the family, in the workplace and in society benefits from the concept of individual human rights that are protected by the state.

There are many governments in the world today who also want to emphasize responsibilities rather than rights.

There can be no legal reform without political reform. The rule of law cannot just be wished for. It must come as a result of institutions in society asking for this concept to be realized.

There are many different sectors in society. The most important are three: the public sector or the government; the private sector which is composed of all the economic and business sectors; and the non-profit or non-governmental sector of which the Catholic Church is the strongest organization.

Peter Drucker, the management philosopher, espouses that balance among these sectors and with each sector having a distinctive purpose, we can have a responsible society. Though this is difficult to achieve, he viewed a “functioning society” as the only “likely guarantee against tyranny and extremism…” He saw effective and responsible institutions in all sectors as the best hope for civilization to endure and for individuals, communities and society to thrive.

In defining a functioning society, Drucker states: “At its best, society has democratic institutions that govern wisely and implement effectively and lightly; functioning and efficient markets that encourage risk taking, innovation and entrepreneurship to meet customer needs and to satisfy the need for growth and progress; and nonprofit institutions at the local and community level that provide services and reciprocal obligations.”

The necessary factor is that each must act according to its role. This assumes that all the three major sectors in society are focused on their respective roles. Professor Ira Jackson of Claremont University wrote: “…we are witnessing another shift, perhaps of tectonic proportions, in the balance of power, resources and authority between government and business. No longer commanding from the towering heights, the private sector is in retreat, chastened, weakened and humbled and occasionally even a supplicant. Government again commands the high ground…”

Unless the other sectors of society are able to regain their roles, there will be no functioning society.

*      *      *

An Invitation for Young Writers, ages 8-15:

Young Writers’ Hangout on Sept. 26, 2-3 p.m. Poetry Writing with guest poet Mookie Katigbak Lacuesta.

Zoom, write and celebrate with us as we mark our 7th birthday this month. Contact writethingsph@gmail.com.  0945.2273216

Email: elfrencruz@gmail.com

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