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Legal instrumentalism is increasingly evident in Uganda today. From curious denials of bail based on flimsy pretexts, and incommunicado detentions followed by post-hoc investigations and conjured charges to justify these detentions, a dangerous pattern is evident.
The law finds itself trapped amidst the socio-political conflagration, and the common person stands to pay the highest price. Rights to a speedy trial, liberty, life, assembly, etc., are flagrantly violated.
These striking examples reveal that such actions are not merely procedural lapses; they represent a profound distortion of justice that threatens the very foundation of legal integrity.
Today, society and law have been cut adrift from the old moorings of justice and fairness with no anchorage in sight. Current attitudes towards law do not even strive for a less ambitious goal of balancing.
In courts of law, there is a competitive combat for right by the disputants and their advocates, which evidently affronts the foundational goal of representation. This goal is not merely to mirror the infinity of private interests, as a pure democracy might, but to meld the contesting forces into the permanent and just interests of society.
Central to this predicament is an entrenched, and arguably absurd, instrumental view of the law. From the legislators to law enforcers and adjudicators, the law has been reduced to a mere instrument to achieve an uncertain end.
Do not get me wrong, the law does, indeed, serve a purpose in society. However, the law is not an empty vessel to be filled in and by our leave; rather, the law is predetermined in some sense with what is just and right.
Jurisprudentially, an instrumental view of law portends a battle to seize the law’s implements and wield its coercive force against opposing groups. Today, this battle takes place in administrative, executive, and even judicial spaces. The law is no longer seen as an order of binding rules but increasingly as a tool to be manipulated to achieve desired ends.
This is an indictment of the spirit of the century-old ideal of the rule of law that envisions the enactment of laws to achieve collective social purposes and the proposition that there are legal limits on the law itself.
The interesting but sad bit is that lawyers are complicit in this onslaught of the law. Their task is usually to manipulate legal processes to advance the interests of the client. Right from law school, law students are taught that everything is up for argument and that legal rules are not binding dictates but resources to be strategically marshaled and presented with rhetorical agility.
This way, legal education has both reflected and contributed to this trend. This is dangerous. Instrumentalism entails only means-ends reasoning. An instrumental view plants certain excrescence to the law.
Once an end has been decided upon, law can be used in any way necessary to advance the designated end, without limit. When the law is deprived of its own integrity, it is nothing but an instrument to be utilized in whatever way necessary to achieve the ends desired.
One of the surest outcomes then becomes the slow but assured putrefaction of the law and the steady growth of arbitrariness. When and if achieving an end is allowed to prevail over the rule of law, the law is relegated to a mere rule of thumb, defeasible when the purpose behind the law would not be served.
A legal system cannot combine being rule-bound and trying to achieve ends. Legal instrumentalism does not merely distort the purpose of law, it corrodes public trust, entrenches inequality, and quietly reshapes the boundaries of what a society considers legitimate.
The writer is a lawyer.
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