Reading judicial texts and the power of social context

FROM A moral standpoint, something is very wrong when a foundling is forced to make an account of the murky circumstances of her birth and prove from her unknown parentage that she is a natural-born citizen of the Philippines.

However the Supreme Court may rule on the legal question, the social consequences of this controversy are wider and more far-reaching than the mere political fortunes of a presidential candidate.

For one thing, it has pointedly surfaced the fact that there are millions of babies born paperless in the Philippines. This stark reality shows up the mis-fit between the paper requirements of our legal system, which has been largely borrowed from other contexts, and the actual exigencies posed by culture and massive poverty in this country.

The issue brings up the tension between “text” and “context,” or how our interpretation of the legal text is actually determined by our social location, in this case the political bias and agenda of the parties concerned. What we call “law” does not exist outside of a social context.

Whether we are conscious of it or not, there is a more powerful subtext that suddenly causes an obscure text to rise before our eyes, skews our reading and shapes our responses. It is good to be aware of this hermeneutical fact in wrestling with this issue.

Social justice, says former chief justice Artemio Panganiban, is part of what frames judicial decisions. As well, there is the larger canvas of universally held values and rights that ought to be taken seriously when deciding on a matter whose significance, as in this case, is beyond what St. Paul calls “the letter of the law.”

Social anthropology helps us understand the social dynamics that frame our interpretive lenses. It differentiates at least three main domains of social behavior: the formal, the informal and the technical. The formal domain is that sphere where things have become routinized and structured into institutions, or coded into rules, procedures, or a juridical framework like a Constitution. The informal domain is that vast realm where the personal and the plasticity of human inclinations come into play. The technical domain is the realm of the sciences—knowledge and tools that are marshaled for better understanding and management of human behavior.

In normal societies, these domains have equal space, power and authority.

However, there are societies where the formal domain gets overextended, as in authoritarian regimes where our ideologies, lifestyles, thought life, and even our haircut, are subjected to state regulation. These days, we are seeing societies under pressure to become theocracies, ruled by mullahs and other such authorities who issue all sorts of rules—from dietary restrictions to wearing burqa to the proper length of one’s beard.

There are also contexts, like industrial societies, where the technical tends to dominate the way people behave. Technicalities become the norm. Considerations for the human, the moral and the personal take a back seat to the abstract and profit-driven rationalities of corporate regimes and bureaucracies.

In his book “The Technological Society,” French sociologist Jacques Ellul points out the pervasiveness of what he calls the “culture of technique” in western societies. Human values, for instance, are sacrificed to the altar of efficiency, much like the way the ancient Greeks blinded nightingales to make them sing better.

Our technocrats and political elite are often unaware that they are part of this overriding cultural narrative. Mostly educated in the West, they unconsciously absorb and assimilate this amoral instrumentalism. Lawyers, for instance, become mere technicians who ferret out of their tool box tortuous technicalities that test the boundaries of what decently can be considered fair game.

Likewise, the informal domain in this country has such space and power that it can render our formal structures inoperative.

The system of checks and balances crumbles before alliances forged out of clan connections or that complex of kinship networks and party loyalties that thrive on favors received or granted. Power is exercised not just by office holders but also by those connected to them. Policies and procedures are bent or ignored, and the lawyers are summoned to produce the technicalities that would justify, say, the obstruction of justice or the rewriting of our very Constitution so as to accommodate the wishes of those in power.

Overall, our formal institutions tend to get dysfunctional because they get overrun by informal pressures, and the technical rationalities undergirding them are usually not congruent with the actual social and cultural forces that are at work in this society.

It is important to discern those occasions when the formal, the informal, or the technical occupy inordinate social space.

In the case before us, to merely technicalize the issue of whether a foundling like Grace Poe is a natural-born citizen is to fall into the pharisaical error of upholding the “letter of the law,” while neglecting the “substance of the law”—matters of justice, fair play and morals—the kind that delicately resists resorting to unseemly maneuvers in one’s march to power.

Dr. Melba Padilla Maggay ([email protected]) is a social anthropologist and president of the Institute for Studies in Asian Church and Culture.