Is the Law really public?

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Laws are made public only to legitimise the adoption and continuance of justice systems and judicial practices in any democratic statehood, yet the legal information market has managed to become a multi-billion-dollar industry. So, what is this “legal information”? The state officially recognises the term to include the legislations promulgated by its designated legislative bodies, the administrative rules and regulations framed by its executive agencies and the rulings rendered by its justice dispensation authorities. Under any democratic regime, all of this information is meant to be publicly accessible in order to fundamentally justify any action, or omission of the elected government with an informed citizenry. The reality, however, is that one cannot either accurately locate or correctly understand any of this information without adequate reference to what are known as secondary legal authorities, implying that the state’s definition of legal information merely includes “primary legal authorities” or official legal documents. So, what exactly is a “secondary legal authority”? Simply put, any extra-judicial legal exposition by an unofficial, self-appointed commentator which does not have any binding authority for any court and may only be employed for its persuasive value to favourably convince the judge. It’s perhaps this step-motherly treatment of secondary legal authorities by judicial institutions across jurisdictions which has tended to undermine their true educational import and excuse the state from opening the doors to legal knowledge for ordinary citizens. The truth pin-pointed here is that even as secondary legal authorities do not boast of any real authority, they serve the indispensable function of giving an accessible account of the often complex, jargon-loaded primary legal authorities. (Even qualified attorneys require reference materials from time to time to aid their contextual understanding and application of the law in order to competently represent their clients’ best interests.) The state rather allows corporate interest to creep into the production and dissemination of secondary legal authorities, which are sold to the public as proprietary knowledge only to turn huge profits for private publishing giants. In other words, the very realisation of your democratic imperative to know the law in primary legal authorities so as to enable you to claim your rights and defend your liabilities in court, is effectively dependent on your ability to afford the explanations to the law in secondary legal authorities. As it turns out, the law isn’t really made public as its useful and meaningful access may require a gold card. The object of ensuring equitable access to justice cannot be achieved without democratising access to legal knowledge (and not just the letter of the law). Anything in its stead will only act as a weak consolation for the law-abiding citizens in any democracy.

The contents of this post were first published by DailyO — an online opinion, analysis and commentary platform from the India Today Group.
The writer is the Founder and Executive Editor of JurisOpen Network Publishing. Readers can send their views and comments on editor@jurisopen.org.
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