Focusing on the negative
I was recently approached by the country’s national human rights institute to give a presentation on the role of human rights in legislation. If there is one early message I would hope to impart, it is this: Lawyers do not necessarily make good lawmakers.
Perhaps on its face this may seem like a rather perplexing idea considering the two professions’ shared subject. After all, we see the word “law” in both these functions. How different could they be?
At the risk of stating the obvious, making the law is different from using it. I recall experiencing the contrast between law and public policy for myself during my research stay at Harvard. As a visiting scholar, my regular schedule brought me from the north-end of the Cambridge campus to the law school where I had joined a course on corporate accountability, to the school of governance (otherwise known as Harvard Kennedy School, or “HKS”) south-side by the Charles where I had joined a class on business and human rights. I enjoyed asking the same questions in either school, and was intrigued by the contrast of their answers. While one focused on administrative processes and codified standards, the other highlighted the role of political will and “norm diffusion.” One highlighted positive structures, while the other zeroed in on negative spaces.
Take by way of allegory “Rubin’s vase”—perhaps one of the most popular examples of “optical art.” An interface of optical illusion and artwork, “Rubin’s vase” presents an image of a white-toned vase on black canvas. Now, depending on how you view it, you will see either one of two images: the vase front and center in white, or the dark spaces surrounding the vase, which in turn form the silhouette of two faces.
What is it that you see? As lawyers, our job has been to focus on the positive space. On the structures that are already there. We study them for years, meticulously familiarizing ourselves with the statutes, regulations, and jurisprudence which detail the do’s and don’ts on the canvas that is society. We look at Rubin’s work and see the bright lined vase, for what else is there outside of it but darkness? But chaos?
Lawmakers, however, have a different role. To them, the focus is less about the structures that are already set in place but the blank spaces in need of filling. While lawyers see Rubin’s vase, the lawmaker sees Rubin’s faces. The legal profession navigates existing frameworks, while legislative function delves into uncharted territory. Indeed, the legislative process is where the softness of policies and principles crystalize into law.
While the fields of law and policy may be distinct (as indeed, they have respective schools on campus and respective schools of thought), they are not separate. Gone are the days that the legal field could be conceived on a pedestal. As a structure above and beyond societal levels. Indeed, the past two presidencies of the Philippines alone, from the former head Rodrigo Duterte to the incumbent Ferdinand Marcos Jr., shows that legal systems, no matter how defined in text and refined in promise, cannot be detached from political winds. In a praetorian state like the Philippines, the trappings of democracy subvert democratic institutions. The goal, therefore, is not to separate politics from law or shield it from its winds. Rather, it is to harness their respective strengths.
We need to rethink the roles of the lawyer and the lawmaker alike. Indeed, either is less about the law and more about legal order. And therein lies a difference. Politics must not stand in the way of legal order, but neither does this mean that legal order should be confined to the pages of the codicil. Because whether our eyes glance at Rubin’s vase or Rubin’s faces, it is the contrast of light and dark, the entwinement of law and politics, that creates a holistic image.
On life’s canvas, the one cannot be separated from the other.
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