Often, when we demand of others that they act decently, we admonish them to rise above their animal instincts. In such mindless ways do we insult animals. Frans de Waal, a primatologist, who has observed chimpanzees for a long time thinks that animals living in groups are governed — no less than humans — by basic ethical values. He names three: fairness, reciprocity, and altruism. These values are a product of social life, he writes, rather than of some transcendental or cosmic reason expressing itself in history.
If we accept that there are primal values underpinning much of social life, whether among men or among apes, then we can suppose that our laws are nothing more than elaborations of these basic rules. As societies become more complex, there is a corresponding need to differentiate the situations in which these rules are applied. Detailed provisions are crafted to cover specific contexts and contingencies. All too often, however, the underlying principles from which the laws are drawn are forgotten in the process, paving the way for narrow interpretations that pay no attention to the spirit of the law. As a result, what is not explicitly prohibited becomes permissible. And a whole profession evolves that is dedicated to the exploration of the outer limits of the law, rather than to an elaboration of its substantive and practical meanings.
In a culture dominated by legal guns-for-hire, no set of laws will ever suffice to build an orderly society. But, in a culture where primal moral instincts survive, no elaborate laws are needed to cover every contingency. Guided by the most general ethical principles, people know what to do in everyday life; they do not wait for specific laws to tell them what is right, proper, and just.
As a sociologist, I have long suspected that what has happened to us as a people is that in the course of our political evolution as a nation, we threw away many of our moral instincts when we began operating under the borrowed institutions of the colonizers. We were not conscious that these borrowed institutions were themselves also the embodiment of the moral instincts of the peoples that bequeathed them to us. We adopted these institutions unaware of the societal and cultural contexts from which they sprang, and of the unstated norms that guided their operation in their original settings.
Because of this, we often cannot identify with the sensibility that informs our imported legal system. We tend to regard our laws negatively as alien impositions, rather than positively, in Hannah Arendt’s words, as “the space in which men live with one another without using force.” In the face of this attitude, lawmakers are driven to formulate every law they pass as narrowly as possible so there is no room for misunderstanding. Our present Constitution reflects this fixation with detail. We are not content with laying down basic principles and general policies. We seek to legislate for every possible situation and topic – a task that, of course, can never be completed in a rapidly changing world.
Since every law has its own blind spot, legal technicians will never run out of ways to elude its visual reach. The institutional response to such self-serving evasion has been to create more laws, or to make existing ones even more exact in order to plug any possible loopholes. This is an endless and futile exercise. No law can ensure that people will always play fair. Fairness is something pre-legal.
Perhaps nothing illustrates this better than the inability of our election laws to prevent premature campaigning. By current definitions, one can be guilty of premature campaigning only if he is already a certified candidate. For as long as he has not explicitly registered as a candidate, he cannot be held liable for premature campaigning.
But the relevant laws are there. Our politicians know them, yet they act as if these are not applicable to them. I don’t think the Omnibus Election Code, already absurdly bursting with detail to cover myriad forms of cheating, can be further refined to plug the loopholes.
But we are not so helpless; we can, as voters, do what the Commission on Elections cannot do or will not do. We can and should serve our politicians a fair warning. We must tell them that those who exploit the non-specificity of the law to secure an unwarranted advantage for themselves, or pretend they do not understand the norm of fairness implicit in our laws, cannot possibly be trusted with power, and therefore do not deserve our vote.
One does not need to be a political scientist to realize how much leeway our legal system allows those who take up the challenge of politics, and what great prerogatives await those who get elected to public office. These are not gaps in the law; these are not unruled areas of political life awaiting legislation. These are entrusted spaces that are subject to the unwritten rules of fairness and responsibility.
To willfully ignore this is to be just one step away from the arrogance that brought down US President Richard Nixon in 1974. Nixon famously said: “If the president does it, that means it is not illegal.” That Nixon could utter this outrageous statement, three years after he was thrown out of office for his participation in a criminal cover-up, only shows that politicians in general do not become ethical by choice. Voters make them so. Citizens make them so.
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