Just Law: The Law is a tool

It is important for people to understand the power of the law. It is a tool that can be used to achieve one objective or the other. Reference to the law in this article means the legal law, defined as a body of rules governing human conduct and enforced by the State. It is the ability of the state to impose the law by force that makes the legal system a tool of control of conduct in society. It is the level of this imposition of force that determines the extent to which people would yield to the law or be more willing to abide by it.

If the perception of people is that the law is fair and the closer a legal system comes to being just, the more willingly it will be obeyed. An unjust system of law can only be enforced by strong punishment and the people ultimately will rebel against it.If the perception of people is that a law that is about to be passed in parliament is oppressive, dehumanises them and is unfair, such as the Public Health Bill, the people will fight it and reject. It is therefore very important for people to understand that the law can enable, limit and restrict what the people can do.

The law can determine your identity by defining who can be a citizen and who can not. For example, the law of Botswana does not allow dual citizenship whilst in some countries it does. Citizens of Botswana would have to forfeit their Botswana citizenship to be citizens of other countries. The law can define who is eligible, by defining the qualifying age. For example, the law can define who is an older person and who is a minor. This would consequently attach rights and duties to those people. A person in Botswana is a major at the age of 21 years.

It follows that those below the age of majority cannot do anything unless they are assisted by their legal guardian or else there is a law which gives a different qualifying age. Below 21 years you cannot apply for a piece of land, open a bank account unless you are assisted or prove that you have been emancipated. The principle being that the law can define and limit access to resources.

For example in defining access, the law can define when you can have access to a lawyer. Currently the position of the law is not very clear whether one is entitled to a lawyer during questioning by the law enforcers although the police have in many instances allowed that. One school of thought posits that the right to legal representation in the Constitution starts when one is arraigned before the courts. It would require a more robust and clear provision of the law to accord the people access to lawyers at the point of questioning, like in some progressive jurisdictions.

The law can also be used to improve working conditions and set standards. Section 37 of the Employment Act makes conditions of employment less favourable than what is provided for in the law. The section provides that ‘where a contract of employment, whether made before or after the commencement of this Act, provides for conditions of employment less favourable to the employee than the conditions of employment prescribed by this Act, the contract shall be null and void to the extent that it so provides’.

However it must also be acknowledged that, although the law is a tool that can liberate or oppress, it is also limited in its power.  The law may define what the rights and duties are, but not how this would be applied. How many people to arrest is not a function of the law, but the law enforcers. Abuse of the law enters through discretion and interpretation.