The Hard Problem of Law
The rule of law serves as the foundation of any modern society, providing a framework for regulating and managing social interactions. It is expected to be objective, impartial, and rational, reflecting a society’s values and aspirations.
However, the objectivity of law must be tested by the subjective perception and interpretation of lawyers and judges, making the legal problem difficult. The difficulty in reconciling the objective nature of law with the subjective experiences and interpretations of those who apply it is referred to as the hard problem of law.
The difficult problem of law stems from the nature of law, which is a social construct created by humans to regulate their behaviour. Law is not a natural phenomenon; rather, it is shaped by social, political, and cultural forces.
As a result, law is constantly evolving and adapting to changing circumstances, making its interpretation and application a complex and difficult task.
Law is a multifaceted and multidisciplinary field that includes civil, criminal, constitutional, administrative, and international law. Each branch has its own set of rules, procedures, and principles that govern how it is applied, making law interpretation and application a complex and nuanced exercise.
Furthermore, legal language is frequently technical and complex, necessitating a high level of legal literacy and expertise to understand and interpret. Due process, equal protection, and the rule of law are legal concepts with a rich history and a complex meaning that varies depending on the context and the perspective of those who apply them.
Lawyers’ and judges’ subjective perceptions and interpretations also play an important role in shaping the objectivity of law. Lawyers and judges are not objective or neutral actors; they are human beings with biases, values, and perspectives that shape their understanding and application of the law.
A judge’s interpretation of a constitutional provision, such as the right to privacy, may differ depending on their political ideology, personal experience, and moral beliefs, for example. Similarly, even if the law is impartial and neutral, a lawyer’s argument in a criminal case can be influenced by their client’s race, gender, or socioeconomic status.
Furthermore, legal reasoning is not purely deductive or logical, but requires some creativity and judgement as well. Lawyers and judges must make decisions and use discretion when applying legal principles to the facts of a case, which can result in conflicting interpretations and outcomes.
The difficult problem of law extends beyond the interpretation and application of the law to the legislative process itself. Lawmaking is a complicated and iterative process of negotiation, compromise, and consensus-building that reflects society’s diverse interests and perspectives.
Legislators’ and stakeholders’ subjective perceptions and interpretations shape the content and form of law, making it a reflection of societal values and norms.
For example, in the United States, the legalisation of same-sex marriage was the result of a long and arduous process of social and political activism, legal advocacy, and legislative action that reflected changing societal attitudes towards LGBTQ+ rights.
To summarise, the hard problem of law is a multifaceted and complex challenge that reflects the tension between the objective nature of law and the subjective experiences and interpretations of those who apply it.
Lawyers’ and judges’ subjective perceptions and interpretations play a critical role in shaping the objectivity of law, making legal reasoning and decision-making a complex and nuanced exercise.
To address the hard problem of law, we must recognise and embrace the complexity and diversity of legal practise while also promoting greater transparency, accountability, and ethical behaviour in the legal profession.