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 The Power of the Law

Posted on 11 September 2014
 I have been planning to start writing this post for a VERY LONG time. Like: very long! So be warned, its going to be a very long read. The initial intention was to write it as a blog post for a series of posts that will ultimately be compiled into a book for my children to read when they are old enough to read it on their own. It will probably end up on my blog at codienafarie.com/farayi/.

It all started with a question that an old television advert used to ask: And this is the question: "If there is one book that your children had to read, which one would it be?". As a Christian, the initial gut reaction was "Obviously, the Bible" but as I pondered on the question a little more, I realised that it was not as simple as that. The Bible is a very good library for anyone to read, and is a must read for anyone who claims to be a Christian and since I am raising my boys to be that, they will have to read it. However one needs help in order to get the most out of it. I then decided that I would write the book that I would want them to read...

Anyway, over the last couple of months, I have been procrastinating about how to start this series. To be sure, I have a very good idea about which subject I wanted to start to tackle first, but I have spent a lot of time debating a number of possible opening lines in my head until I worked myself into a state...well sort of. That is until today.

The immediate trigger for wanting to write this article is the Oscar Pistorius verdict that the honorable Judge Masipa started delivering earlier today and the way that people have been reacting to it. But the judgement itself is not the immediate subject of my musings. The issue that interests me is the question of how the law works. Better still, what is the law? Now there is an interesting question and one that I know many of you would initially dismiss off hand as a trivial philosophical question. But is it?

Indulge me for a moment as I go back to where I started this whole reflection. As I said before this is targeted at my children. Whilst I am starting with the question above, my intention was not to start with such a subject at all. It was to build up to this point, among others, however the events of the recent past have conspired to make it an ideal entry point into the discussions that I wanted to have with them. My approach is to pose a number of questions for which I will not provide answers, but whose answers I think are important for them to think about in order to navigate the world fully and actively participate in the shaping of their own lives and futures.

So let me proceed with this discourse. I posed the question above which asks "what is the law?". It is neither a trivial nor an unimportant question. Many adults assume that they know the answer to the question, and in a sense they do. But many of us also really do not know what it is, at least not fully. I will not attempt an answer to that question now, but I will proceed to ask a set of related and possibly equally important questions: Firstly, how does the law come about? Alternatively, where did the law come from? Also, why do we need the Law?

I know I have said that my intention is not to answer these questions, and I certainly will not, but I will give some interesting view points from a number of things that I have recently re-learnt. The first interesting insight is that many of us take for granted the way that our world works. We assume that the way that things work now, is the way that they are supposed to work and possibly have always worked. The reality of course is that neither assumptions is necessarily true. The second insight is based on a theory that I recently came across from Professor Harari of the Hebrew University of Jerusalem. According to this theory, one of the main distinctive characteristics of our version of human being, homo sapiens, is the ability to create and believe in things that do not otherwise exist: what he calls "Imagined realities". This is a controversial, but interesting theory. One example of an "Imagined reality" that he talks about is Limited Liability companies as exemplified by the company that we all know as 'Peugot". Professor Harari contends that the Peugot company does not actually exist, except in all our collective imaginations. In other words, it only exists because we believe that it does. Before, you write me off and send me off to the nearest loony bin, let me explain his very compelling argument:

We all "know" that the company Peugot is not the cars that it manufactures. That is easy to see. One could destroy every car that the "company" ever made and the Peugot company would continue to exist. We also know that the company is not its employees because you could replace every single one of its employees and the company would continue to exist. The same can be said of all its offices, etc. In fact if you continue to follow this argument you will eventually come to the realisation that the existence of the Peugot company is a product of the law. What professor Harari calls a "legal fiction".

For the company to come into existence, its founders had to "register" a Limited liability company with the French registrar of companies. After writing a few facts onto a piece of paper, the 'authorised' person within the French government stamped the pieces of paper and essentially gave birth to the Peugot company. For as long as the people who "run" the Peugot company continue to comply with the rules that govern the management of limited liability companies under French law, the company continues to exist, even if it stops making cars and starts making women's fashion. So, you see, the Peugot company doesn't really exist and yet it also does exist.

It doesn't exist in that its existence is the product of some 'magic' trick performed by the registrar of companies in France. What I didn't say above is that its desolution is also a legal process. If the 'right' authorised person (a judge or the register of companies again) makes a specific declaration stating that the company no longer exists, it will cease to exist EVEN if it still has a head office, or factories or products that it makes. One of my virtiual classmates on the course that Professor Harari is teaching works for Peugot and did not take the above analysis very kindly. He counter argued that the above is clearly all nonsense because he knows that Peugot company exists since he works for them and they pay his salary. So you see, it must exist because we see the things that it produces and some people earn their living by helping it do so.

If we followed the above, you could trace the origin of the law that defines what a Limited liability company to a similar process: Some men, and a few women went into a chamber that they call a parliament or some french version of the word and wrote a piece of paper proposing that a new 'legal entity' called a Limited liability company be created and defined the circumstances under which it could be created and how it could it be disolved. They debated the provisions of their bill before voting and then sending this so called bill to another man whom they had previously all agreed would be the Head of state and thus given power to approve the piece of paper and make it into law. As long as all the French people believe in these institutions the Peugot company and all other similar limited liability companies will continue to exist together with all other entities created by the men and women who fill up the benches of the French legislature...

So why did I bring up the above two main insights, you may ask? Well for starters, I would like my boys to reflect on the meaning, purpose and effect of the law on our daily lives. The above is the shorter version of the "Imagined Realities" story. It is one of the theories that explains the success of humanity against all evolutionary odds. In my next post, I would like to go back to the beginning and ask a few additional questions about the origin and meaning of life. I will attempt to explain why that question is an important one for my boys to ponder especially as it pertains to the choices that they will have to make around how to conduct themselves and live their lives.

11 September 2014