The law as desideratum FOUR central ideas upon which a liberal society may be founded viz: liberty, representative government, an impartial administration of justice, and law, have inexorably found inevitable accommodation in our political thought process. Most often, they are taken for granted as if given. Of all these ideas, however, law is primus inter pares being the first in time to be established and it being the underlining framework within which the others can thrive or have their being or existence established. Law is, however, nothing without its enforcement even as such enforcement is recognized as inflexibly predicated on the possession of political power. Self-evidently, the possession of political power is ironically not usually based on moral right. Because political authority is historically founded upon some forcible acquisition of power, it is in the character of sovereignty to demand a monopoly of force. Even as the most elemental of sovereigns is practically faced with the requirement to settle disputes, enforce settlements and impose penalties on the traducers of the sovereign’s command, the centrality or necessity of the means of force becomes real or palpable. The instant that the aforementioned situations present themselves, the ruler is confronted with the problem of deciding on what principles disputes may be settled or what penalties to impose. Where disquietingly there is no body of doctrine to fall back on, he must settle the issues on the basis of a pre-existing custom or, if he wishes to alter the custom, of a general set of ideas of which he is the purveyor or formulator. In practice, therefore, law may be ascertained or determined by a formal enquiry regarding the rules recognised for the time being by the sovereign power even as the actual content of legal rules is often evinced by reference to principles which claim to owe their reasonableness to something other than an arbitrary exercise of will. These principles are generally accepted or presumed to be given or immutable. But with the passage of time or as it gradually dawns on society that no principles or set of principles are wide-ranging enough or clear enough to render themselves readily applicable to every case in point, (or no society stable or durable enough to be able to endure for long under such an immutable set of rules) organs of legislation emerge or are put in place. Further, the moment it is realized that a mere appeal to custom or tradition is not justifiable enough, the search begins for a principle of jurisprudence which will provide a rationale or a justification for the making of laws as well as for their enforcement. In the 18th century when the old Common Law was suffocating under its own dead weight, Bentham provided a fitting philosophical platform in his utilitarian formulation – the greatest happiness of the greatest number – even as his inspirational friend and collaborator, Austin, theorized legal positivism. Between them, utilitarianism and legal positivism remained for a long time the ruling theory of writers on jurisprudence. These two postulations have since undergone refreshing re-formulations or re-crafting so they could meet the various palpable objections to their canons. In practice, however, or as the law stands or exists, it is in a curious oppositional relationship to Bentham’s and Austin’s theorizing. Judges and parliament have never proceeded as if the theory of legal positivism were true. Both are under the incoherent impression that law as it exists, or as it ought to exist, is inextricably linked to morality and justice. Only that inimitable legal positivist, Adolf Hitler, was enamored by and satisfied to adopt the law as what the sovereign chooses to treat as law. Every true understanding of positivism has tended to interpret law as the result which will come down from the judges if a disputed question or matter is referred to the courts. This, to this writer, seems the perfect position for a practicing lawyer to take even as he is acutely aware of and sensitive to the arguments which will persuade the judges to reach that result. Those arguments must generally conduce to the achievement of the result and must invariably connect with the popular conceptions of justice. The central question both for jurisprudence and political theory is that law is about compulsion i.e. the coercion of men and women to do what they would rather not have chosen to do in the first place. What justification, it may be asked, has one man to compel another (one way or the other) simply because he is entitled to put on or wear a long wig or because before his name he writes the socially untrue letters, “Honourable” or “Distinguished Senator”? Lawyers, judges, lawmakers and voters always latch on to a theory which they choose to give high fallutin designations of justice and morality, right or wrong, responsibilities, duties and moral rights. The major difficulty in pursuing these labels to their logical conclusion is ingenuously evaded or avoided by Rousseau’s invention of the social contract paradigm. Men were bound to observe their civic obligations because of a primeval (or primordial) agreement between or among “noble savages”. But the presumed existence of such an agreement is both specious and suspect. Or if there was, the descendants of the parties could avoid or repudiate it at law or in common sense. They could not be bound by it. However, arcane or difficult it may be to formulate the connection, there is an inescapable relationship between morality and law, between justice and reason, without which all forms of government become a tyranny and all their constituents slaves. In our own traditional setting, the principles of law and justice were not identified or articulated by traditional folk as philosophical formulations or postulations but were suffused in proverbs, folktales, songs and numerous practices and institutions collectively referred to as custom. In the same way as could be described as law in autochthonous society are the regulatory ordinances or practices of what may be done or forbidden which contemporary usage facetiously refers to as customary law. The effectiveness of justice was very much aided by the general enthronement of conformity through an unwavering insistence on the strict performance of obligations. A commonly shared notion or belief in the authority, suzerainty and involvement of the gods in the affairs of the human community ensured strict obedience to regulations, judicial decisions and sanctions predicated on supernatural involvement and authority. It is proper to conclude that no system of jurisprudence can be compared with the actual facts of forensic practice, or the promptings or burden of the human conscience if it does not assert a system of natural rights and natural justice of some transcendental value. Issues like free will, moral responsibility and value judgments of right and wrong are all required to be deployed for resolving the metaphysical riddle or puzzle which they at once throw up for our resolution or settlement in our quest for a liberal society founded on the ideals of justice, peace and progress.
Posted on: Tue, 07 Oct 2014 23:19:31 +0000
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