One size doesn’t fit all

I was watching a movie the other night where a 10-year-old had a donated heart that needed daily medicines for life. The meds cost $9,000 per month, which the nice middle-class parents couldn’t afford. The US has a program that provides the medicine, but only to people below a certain income level; the couple was a bit above that and there was no way around the law. The doctor came up with a solution: divorce, so the single mother would be eligible. But they were deeply Catholic and much in love, and didn’t want to sin. They agonized over saving their son’s life or sinning in the eyes of God. Eventually, they decided to divorce. (As an aside, the Pope heard about it and absolved them.)

The point of all this is the nature of laws.

Congress takes up an issue that needs control, so after thorough investigation, a law is passed to cover the issue. The trouble is no one can predict all eventualities. There will be justifiable exceptions that should be allowed (see above) but can’t be because dura lex sed lex — the law is the law.

Well, it shouldn’t be. Specific instances should be allowed where it’s sensible to do so: common sense. As I see it, law was created to serve society. So what’s best for society should always prevail.

Technicalities that absolve the person of the crime — the infamous OJ Simpson case as a prime example — falls in this category. We have all heard of cases where technicalities get a criminal off. I understand the rationale for it, it’s the law and the prosecuting lawyer should know the law. But it’s unreasonable to expect him/her to know all the obscure intricacies, which is what technicalities are.

I realize that this means relying on the personal decision of the judge, and in an ideal world that would work because judges are chosen for their wisdom and impartiality, or should be. But, there’s the reality — there are judges who can’t be trusted.

But surely, we shouldn’t base our legal system on countering the frailty of a few judges. Surely the majority can be trusted to apply common sense to their decisions, and not to adhere strictly to the minutest detail of the law to the detriment of many. I don’t have a workable solution, but I suggest it’s something the legal profession might wish to ponder, to seek some better solution than what we have today. We need to include common sense and compassion (except for cases like Juan Ponce Enrile’s) in consideration of the law’s application to specific cases.

The one-size-fits all thinking in the structure of laws and, allied to that, government regulations, has to be modified to adapt to particular circumstances. The thinking of judges and government should be modified to allow for flexibility in applying laws and regulations. Yes, it means more work (not just accepting “it’s the law”) and more thinking, but for a fairer, better-run society, it isn’t that small a price to pay.

No one, not even Nostradamus, can predict the future, or encompass all aspects of a subject. So laws need some degree of flexibility built in, to cover later eventualities. It’s the same with technicalities; they must be decided based on common sense. There must be room for common sense, which is lacking in the way law is structured today.

Let me give you an absurd example. Some time back while I was traveling overseas, security at the airport confiscated a pair of scissors from me. The law bans scissors, but the pair I had was only two inches long. If I were intent on stabbing someone, which I presume is the reason for the regulation, I could use the knife given to me with my meal. There was no common sense; the guard couldn’t use common sense to allow the scissors in.

This may sound cruel, but we seem to base the law on the presumption that people are idiots and their decisions can’t be trusted.

We are going into a mega-shift in society as we adapt to the digital world, so it might well be a good time to also take a serious look at a mega-shift in the structure of law. There is a serious need for a deep philosophical review of the structure of a society’s legal system. If nothing else, it could lead to a fascinating discourse.

Email: wallace_likeitis@wbf.ph