There was a time in the development of our society when it was not necessary to invoke written contracts and formal laws to enforce rights and obligations. Courtesy and honor made people act according to what was generally expected of them without waiting to be prompted by anyone. There may still be a few isolated communities in our country where courtesy and “hiya” reign. But, in general, we can say that this culture of courtesy is mostly gone. It vanished with the passing of traditional society.
Nowadays, it is standard to seek the services of a lawyer to go to court in pursuit of the smallest of claims. We became a litigious society even before we could develop adequate institutional means to resolve disputes and ensure justice for everyone. Litigations are long-drawn and costly; our courts are clogged with pending cases. And so, to the many traditional disparities that have remained in our society is added the modern one of unequal access to the courts.
In traditional society, those who had power and wealth were generally restrained by “delicadeza” from exploiting their advantage. The social esteem in which the rich and powerful were held by the community was of equal, if not greater, importance to them. This typically prevented them from doing anything that would put their honor in question.
Such a society was based more or less on the existence of a moral consensus among members, something that is not easy to find in the today’s world. The decline of a faith-based morality in the modern era was anticipated by sociologists like Emile Durkheim, who believed that moral education could furnish the foundations for a secular morality appropriate to modernity. But, though he warned of the dangers of “anomie” or normlessness, he underestimated the complexities brought about by the transition to modern society.
The rise of an autonomous legal system is one of the outcomes of modernity. While intended to regulate social relationships, law could not, however, fully take the place formerly occupied by the general moral code of traditional society. Having risen alongside free market capitalism, modern law tends to be minimalist. It is expected to provide the tools for enforcing contracts, but not the content of these contracts.
The function of the law in a modern society is to stabilize normative expectations. Such expectations are not generated by law itself. They emanate rather, as meanings, from the interactions of the different functional spheres of society like politics, the economy, science, etc. Thus, the legal system does not operate in a vacuum. While protecting the autonomy of its codes, it must remain cognitively open to what’s happening in the rest of society. To do otherwise is to fail in its function.
What has this discussion got to do with the controversies that now pit the Supreme Court against the administration of President Aquino? The high court invokes its power of judicial review to defend those decisions that have been adverse to the administration. But this power is not being questioned. It is the manner in which it is exercised that is being challenged.
The issue of “midnight appointments” brings the matter into sharp focus. A government that has been elected into power has the right to appoint key officials, except those in the professional bureaucracy who enjoy the right of tenure. That is the basic principle enshrined in the Constitution. The law prescribes cut-off dates within which the formal ban on last-minute appointments is applicable. But more important than these stated limits is the principle itself – which gives to the elected government the power to choose its own set of officials. It is this general principle that ought to guide the interpretation of the law. And yet, the high court chooses to go into the most literalist mode of interpretation in order to find a warrant for the appointments made by the past administration.
It is important to bear in mind that we would not be in this situation if the past president, Gloria Macapagal-Arroyo, had observed elementary courtesy and refrained from issuing appointments so close to a presidential election. Or, if the beneficiaries of these appointments had summoned enough honor to decline their appointments, or, having accepted them, to quit their positions in deference to the prerogatives of the new government. We burden the law too much when we try to seek relief from it after violating the norms of ordinary courtesy. In the face of such moral decline, it seems almost futile to call for ethical renewal in public service. The problem is mainly structural.
If we look back, we will find that all this became possible when politics in our society became illegitimate, and thus more open to the use of naked coercion and monetary remuneration in the pursuit of power. Marcos was the first to methodically experiment with this form of politics by enlisting the military into the project of governance, exploiting loopholes in the Constitution, and placing the entire economy under his rule. Fifteen years after Marcos was deposed, Macapagal-Arroyo picked up the strands of that discredited experiment and wove them into her own brand of transactional politics. She ruled for more than nine years, became a member of Congress, and has, so far, escaped prosecution.
The political and legal infrastructure that these two crafty politicians engendered remains very much intact. It is the principal cause of the mass poverty of our people, and the main reason we cannot move forward.