The law has never been the solution

Historically and currently, this has hardly made sense, yet still, in the latest rising up against gender-based violence, calls were made for legal reform and, while some make sense, most do not.

Before you can reform a system, you’d need to ask what you want from the system and if the answer is protection, you’re in for significant disappointment. Sure, laws in place offer some degree of protection but surely it would be easy to notice that most of that protection is retrospective; your stuff gets stolen and then you report it. You get attacked; then you report it. Somebody breaks an agreement, and only then do you go to court. That’s the usual way of the law: damage followed by repercussions.

In most of the instances you’re attempting to conjure up in your head now, you’ll likely find that the repercussions don’t undo the damage. Even if a murderer is put in jail, the murdered person doesn’t come back to life. Similarly, no matter how much one may be ordered to pay, it can never restore the good name of a defamed person. Certainly, one might argue that it may act as a deterrent but it’s not like that has gotten us very far.

No, our laws merely prescribe how we ought to act but rarely prevent us from acting otherwise until we’ve acted otherwise … and by that time, the damage is usually done. So how do we ask of the law to protect us?

Well, one way would be to set some laws so as to act pre-emptively. We actually do this in certain respects already. You may not drive on public roads nor may you own a weapon without the relevant licence. But there’s a limit to that.

It’s not like we would license assault anyway. We can also set laws that create preventative structures. Again, this is something we do already, which is why there are as many police stations and public clinics as there are.  Another way we could go about it would be to set stricter enforcement parameters and increase policing and, while this wouldn’t strictly be a change in the legal system (it’s more in the executive system), there still wouldn’t be incredible promise of effect. Actually, none of the pre-emptive measures really give a guarantee of effect.

In South Africa, what we have on paper tends to be good. Things like equality, adequate housing, dignity, and access to healthcare services are all afforded to us on paper. What we tend to get in reality may differ somewhat from the expectation. Consider equality and how, as a result, in 2006, we legislated in favour of equal marriage, yet more than 13 years later there remains, at a social level, a significant amount of oppression against the gay community.

Somehow, we’ve allowed ourselves to be overly reliant on the law to solve our social problems. If a social problem exists the answer seems to be to turn to the lawmakers and regulators to fix it.

The law can only do so much and we should probably spend some time discussing what our expectations of it are and how realistic they may be. Instead, we reside ourselves to our silos and over the lunch table call for stricter laws and the death penalty and a number of other legal instruments without actually asking ourselves the seriously important questions:

• Is the law really cut out to do what we’re expecting it to do or are we asking too much of it?
• Is there some other manner in which we can resolve these social issues that will actually have a better effect?
• Is what I’m asking for really going to solve the problem?

We could possibly talk about things like shifts in education, reverting to the moral regeneration programme or some other interventions, but if you’re still looking to the law to fix our issues as if a couple of new sheets of paper in the statute books will do the trick, you’re probably going to be disappointed for a while…

But even if we could find some way to satisfy you in the desire to have a legal system that will solve our problems, no legal system can undo damage, so we’d need to find a way of preventing damage in the first place and I’m afraid that the law cannot do that on its own.

Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

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