The impossible Legality

Luis Rubio

The law says it, therefore it must be true. Cicero would have said: Lex dixit, verita est. Under this benchmark, if the law prohibits it, it does not exist: there are no abductions, there are no thefts, there are no homicides, there is no domestic violence. All because it is prohibited by law.

At least that is what Mexican legislators tell the citizenry repeatedly: the bulletins emerging from Congress are always the same:  “we have now legislated, thus the problem has already disappeared.” Except that, everybody knows, nothing changed, except what is published in the Government’s Gazette: thousands of pages of new legislation that changes nothing in the reality: the abductions and the thefts and the corruption all continue. The only thing missing is that some legislator or the President would decree that there was happiness. With that, Mexico’s problems would be history.

The politicians, and especially when they are candidates, bend over backward vowing that they will resolve all of the problems: some because they are the personification of the good, others because it would bring the Rule of Law in daily life. For those who live in the earthly world, in which problems do not resolve themselves nor with more laws and useless directives, pledges of legality are vague, reiterated and false.

Legality has become a rhetorical myth: everyone promises it, but no one defines it. For those shysters in government, if it is written in the law, it is legal and, therefore, Mexicans live under the Rule of Law, which has led to the practice of modifying the law so that what the government wants can be done. What all these politicians do not understand –equally those in the small, distant demarcations and those who feel that they are superior- is that the essence of legality lies in that the authority cannot change the law at will. That is, legality is impossible as long as someone has the power to change it without proper counterweights.  ­

The Rule of Law consists of three very simple things: first, that citizens have their rights (legal, political and property) perfectly defined; second, that all citizens know the law beforehand; and third, that those responsible for making the law complied with do so in a manner in accord with the rights of the citizens. That is, legality implies that both parts -the citizenry and the government- exist in a world of clear, known and predictable rules that cannot be modified in willful and capricious fashion, but by following a procedure in which there is the prevalence of checks and balances whose core characteristic would be respect for the rights of the citizenry.

This definition, although succinct, establishes the crux of the platform that regulates the conduct of a society.  When that framework is in place and respected and compliance is enforced, the Rule of Law prevails. When the rules are unknown, changing or ignorant of citizens’ rights, legality is non-existent.

It is in this context that the problematic that the Rule of Law faces in the country should be analyzed. The natural propensity of Mexican politicians and attorneys (and, more recently, the OECD) is to propose more laws instead of attending to the underlying problem. That basic problem is very simple and in this lies the dilemma: legality in Mexico does not exist because those endowed with political power have the capacity to ignore the law, violate it, modify it to their liking or apply it, or not, as they please. That is, the problem of legality in Mexico resides in the enormous power concentrated in the government and the so-called political class –and, increasingly, in one person- and that allows it to remain distant and immune from the population

There are two components of the currently prevalent “Rule of the Unlawful”, as Gabriel Zaid defined it: one component is the huge, excessive latitude and discretion -which ends up being arbitrary- that is granted to the authorities by all of the laws and regulations, from the police officer at the crosswalk to the President of the Republic. Governmental officials in Mexico decide who lives and who dies (or who has to pay a bribe) because the law de facto concedes this faculty to them. This is not something that materializes by error: this is the manner by which the political system is nurtured and preserved, the way that kickbacks, corruption and impunity are paid off.

The only way to build a regime of legality is by removing the extreme powers that the political class holds, and that can only come about through the individual members own volition –or by through effective leadership that recognizes that therein lies the key source of impunity and corruption-or by a revolution. There’s no other possibility.

At the risk of repeating an example that is unexcelled, the government of the 1980-90s understood that the absence of the Rule of Law rendered it impossible to attract private investment, without which economic growth is impossible. Thus, the raison d’être of the North American Free Trade Agreement was precisely that: a space of legality where there are clear and known rules and an authority that makes them be followed. That regime was adopted because the government at the time was willing to accept “hard” rules in exchange for investment.

If we Mexicans want a regime of legality, we will have to do the same for the whole country, for the entire population, for all citizens. Therein is the revolution that Mexico is lacking.