[OPINION] Dura lex sed lex is obsolete

Do we aspire for a society that is harsh, or that is just?

Many of our countrymen nowadays resort to the legal maxim dura lex sed lex, translated as “The law may be harsh, but such is the law,” whenever faced with an issue that concerns the law. As only some of us would know, it is a shorter version derived from a more complicated maxim: hoc quidem perquam durum est, sed ita lex scripta est or “This indeed is exceedingly hard, but so the law is written; such is the written or positive law.”

How come we seem to push for nothing but harshness?

From Roman antiquity to modernity

A review of legal history will go a long way in learning about the nature of the maxim dura lex sed lex.

From the early stages of Roman society, like any other society, laws were directly related to divinity. Laws were believed to have either come from a god or from someone who was anointed by a god. Naturally, if a law was believed to be god-sent, everyone must be obliged to follow and apply it to the last dot and dash. Who would dare not to? This was probably one way that dura lex sed lex was applied. 

Another perspective in understanding the maxim lies in the Roman law distinction between ius and lex. Ius are man-made, as opposed to divine, norms of social conduct governing human relations, which possess a strong normative element reflecting the relationship between law and justice, and has been defined by classical Roman jurists as “the art of good and reputable.” On the other hand, lex is the law enacted by a competent legislative organ, such as statutes from Roman assemblies, senates, and imperial constitutions. It has been a settled matter that principles of ius or rightness are not reducible to mere formally enacted laws, i.e. lex.

Furthermore, the application of a lex was typically strict (or dura lex sed lex) and according to the letter of the law, without reference to the circumstances of the individual case; and based on purely formal criteria. Unlike lex, the application of ius was seen as flexible and adaptable to the circumstances of each particular case, and based in its intrinsic rightness. Dura lex sed lex was applied to narrow concepts of legality – as the maxim itself says lex, not to a broader and definitely nobler sense of justice and rightness or ius.

Finally, a look into the socio-political context of the Roman empire – in which the maxim was known to have taken root – must also be taken into account. Regardless of the period in history that we consider, there are ever-present characters and factors in an empire: emperor, aristocracy, and unending threats. With laws enacted and applied by the members of the elite, including the emperor, the legal maxim dura lex sed lex was never true. It was only meant for the poor, the voiceless, and those at the margins; never for the elite. Obviously, the law was used to silence dissent, quell chaos, and punish offenders during those times all for the end of protecting the empire. With this, dura lex sed lex has become a tool for oppression. (READ: ‘Law is law unless friends kayo:’ Netizens slam gov’t double standards)

Going through the history of the maxim, we now ask whether it should remain in antiquity. Do we still live in a society that believes that its laws are god-sent, that knows no higher values of justice and rightness, or that has a government that does not derive its power from the people themselves?

The answer is a resounding no. Dura lex sed lex has no place in a modern society – in our society.

How the maxim blinds us

The country and social media have seen recently the invocation of the mighty dura lex sed lex to an emperor – a modern emperor that still maintains the injustice of the maxim. As we all know, there are costs.

On the enforcement of quarantine protocols, we saw NCRPO chief P/MGen. Debold Sinas’s so-called mañanita, on one hand, and a man’s beating by Quezon City enforcers for a supposed violation, on the other. Dura lex sed lex was applied in the latter.

On the shutdown of ABS-CBN, we saw Justice Secretary Menardo Guevarra’s legal opinion on the issuance of the provisional authority based on equity, on one hand, and NTC’s refusal to issue a provisional authority due to expiration of legislative franchise, on the other. Dura lex sed lex was applied in the latter. (READ: [OPINION] Dura lex and salus populi: TV stations and the duty of government)

On the threats to kill, we saw President Duterte’s broad orders to military and police to kill quarantine violators, on one hand, and a young teacher’s arrest without warrant due to his supposed P50-M reward to someone who could kill Duterte, on the other. Dura lex sed lex was applied in the latter.

One good poIice official we see often under the media limelight is General Guillermo Eleazar. He appears in television to ask people to obey quarantine rules. We know him to be a decent and dedicated officer, God-fearing and incorruptible from what we know. But the mission he has been given is impossible to do and to be successful at. The police cannot keep on arresting people for quarantine violations as that will only spike infections among police, those arrested, and greater society, and threats are no longer credible as people have seen – with the Sinas party and now with President Duterte’s returning to Davao – how hypocritical the government is.

The cost of this is a declining trust of citizens in law enforcement and justice system, one that could be irreparable.

Right and justice should prevail

Every time we say dura lex sed lex, we speak of oppression.

Every time we call for dura lex sed lex, we advocate for injustice.

Every time we insist to apply dura lex sed lex, we become Romans – whose centuries-old ideas of law and justice are tied with convenience and privilege.

Once and for all, let us stop the appeal to this archaic maxim.

The Supreme Court, in Obiasca v. Basallote (G.R. No. 176707, February 17, 2010), expands and at the same time clarifies the legal maxim: “When the law is clear, there is no other recourse but to apply it regardless of its perceived harshness. Dura lex sed lex. Nonetheless, the law should never be applied or interpreted to oppress one in order to favor another. As a court of law and of justice, this Court has the duty to adjudicate conflicting claims based not only on the cold provision of the law but also according to the higher principles of right and justice.”

Further, laws must be understood as flexible and adaptive tools – not set in stone – that are used to provide, not deprive, justice to whoever pleads its application. Remember the good that the law is capable of, in the right hands, such as when it was used to protect indigenous peoples, the right of the youth to healthful ecology, and right of journalists against censorship. We should not forget that the lex is a mere manifestation of what is truly right and just, the ius.

In today’s society, we assert that dura lex sed lex is absolutely obsolete. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.

Jayvy R. Gamboa is a student at the University of the Philippines College of Law and an advocate of youth formation.