The Egregious Failing of Structure
by Kirthi Jayakumar
“The law is a tool of social engineering.”
This is one of the first things you hear at law school. This can sound ambiguous, ambitious, even, when you are still beginning to grasp the law. It looks like a tool that can bring promise: one that can make change possible, enable access to one’s rights, and most importantly, to right a wrong. The law can do that. And does not, too. It is part of the larger “security sector” – intended to protect, to serve, and to right a wrong. The law can be that. And is not, too.
To interpret that first statement based on how it operates, brings to light that the law can be one of two kinds: law that strengthens power, and law that checks power.
Law that strengthens power is law that starts from power structures and seeks, in its letter and mode of implementation, to enhance that power structure. This law creates an “other” and polices that other, thus establishing a socio-political environment of the “human” that deserves rights and the “other” that doesn’t, the “other” at whose cost the “human” enjoys these rights. In the words of Michel Foucault, “…ever since the new penal system – that defined by the great codes of the eighteenth and nineteenth centuries – has been in operation, a general process has led judges to judge something other than crimes; they have been led in their sentences to so something other than judge; and the power of judging has been transferred, in part to other authorities.” (1). It is top down, one size fits all, essentialist, and lacks empathy. It is the invisible monster: the system.
Law that strengthens power does nothing for justice or peace. It results in greater injustices,
intergenerational traumas, generations of marginalization and oppression, and systemic exclusion. These are the laws that criminalize consensual same-sex sexual and romantic relationships. These are the laws that decide that some bodies are not acceptable under the law because they do not fit the cookie cutter mould of the binary gender and sex paradigm. These are the laws that also decide who is fit to be a “citizen,” and on what basis. The security sector operationalizes these laws: it becomes the foot soldier that decides who gets to access the law, on what terms, to what end, and facing what (degree of) obstacles. The security sector feeds the law with greater strength by weaponizing it against the “other,” adding names and faces to every abstract “other” the law identified in its letter.
Law that checks power, on the other hand, is bottom up. It is that which questions the status quo, that which calls for the end of structural power, structural violence, and crimes that go condoned by the letter of the law. It is the law that comes from a socio-political and communal commitment to heal the traumas of the past, and to publicly accept culpability and to apologize unconditionally to those wronged.
One can hardly find laws of this kind: there may be some, a countable few, perhaps, at most. The sign of a law that checks power is that it does not dress like law that strengthens power: it is not jargon, it is not obscure language that does many strange turns before coming to the point. It is not written in the tongue of the colonizer to be imposed on the colonized. It looks like a peaceful protest. It looks like community anger at years of oppression and marginalization. It looks like a judge who is willing to discard an old piece of legislation by invoking the contemporary realities that call for change. It looks like involving those who are legislated for, in the process of legislation in itself, to not only “have a say,” but to actually steer the process.
The egregious failings of the law world over bring this to light: be that police brutality or army violence, discriminatory law-making or violent policy-making.
(1) Foucault, Michel (1991), Discipline and Punish: The Birth of the Prison, (London: Penguin), 22.