Wednesday, July 28, 2010

The Rule of Law I

One is often reminded of the rule of law when visiting countries where the compact between the governed and their elected representatives or self appointed rulers is not based on agreed upon and codified law but on a more tacit agreement of what will be prosecuted and what not. In many societies we have laws which are either no longer used or only used in conjunction with other laws to amplify certain charges. That’s the way we use the sodomy laws still in place in many jurisdictions in the US. In case of rape they are added to the charges, as a single charge they are no longer applied. The reason: no politician wants to spend political capital to get rid of them out of fear of being branded as someone who approves of what will no longer be persecuted.

However, if legal recourse is not possible because laws will not be used then a severe dissolution of the social fabric occurs which has a very corrosive effect on the behavior of individuals which no longer feel bound by law. In modern western societies emerging behavior needs to be constrained to protect agreed upon common goods and fellow citizens. Therefore we confine smokers to certain areas, insist on hands-free use of cell phones and prohibit texting while driving. These are examples of how law needs to continuously adapt to social and behavioral changes caused by technological and politico-cultural changes.

What strikes me in African and Asian countries I’ve visited is the other side of the medal: how often technological and political changes are impeded by not having or applying existing laws which promote social behavior at the cost of limited individual gains. A constant ‘tragedy of commons’ is being played and everybody loses. Trash is left in public places and common good is given no value. This is a disturbing metaphor which describes a lot of social and political phenomena here in Nigeria. The implementation of technologies within societies without the rule of law transforms the character of technologies from tools of change and progress into instruments of power and support for the status quo. Furthermore, the cultural price that is being paid is a high one: once ignored law becomes very difficult to insist on and respect. It might even call for draconian measures to turn the tides and force compliance with existing rules regulating social interactions and behaviors such as parking, traffic rules and garbage disposal. While we enforce fines and use tickets to induce behavioral changes albeit it begrudgingly, an inefficient and corrupt bureaucracy no longer has this tool. What remains are immediate and draconian punishment. I found this sign in a government parking lot in Abuja. We would probably argue that a parking violation does not warrant deflating tires and violates the principle of proportionality of crime and punishment. However, the erosion of political and social capital in countries like Nigeria often results in an unreasonable escalation of punishment. Enforcing civil behavior using harsh punishment results in even more resentment towards law enforcement and fuels this spiral of mistrust ultimately leading to even less rule of the law.

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