I believe, for cause, that we need to restore the centrality of the historic view that intelligible, built-in first duties and first law are the core of law.
If, we are to save our region and wider civilisation from needless catastrophe due to sliding into lawless, ideologically driven Orwellian oligarchy. Where, the institutionally dominant legal positivism of our day has undermined cultural buttresses that keep the state and/or ideologues in check, through the principles of lawfulness. No, law is not whatever those who control the legal presses decide to issue to effect social engineering. Yes, there is a civil peace of justice, as due -- and intelligible -- balance of rights, freedoms, duties. Yes, as your right implies my duty, you may only justly claim a right if you are manifestly in the right.
No, might, manipulation and power games under colour, robes and ceremonies of law do not manufacture 'right' or 'rights,' 'truth' or 'justice.' Nor, do mobs baying in the street, nor de-mock-racy manifested in unsound votes: decree all you want to the contrary, if one jumps off a building he is going down, flapping hands notwithstanding. That is true about economics and policies embedded in national budgets [e.g. inflation whether by fiscal policy largesse or ill advised money supply expansionism is an alluring but often ruinous policy . . . Jamaica, that is how your balance of payments position collapsed in just one year . . . ], and it is true for law and government in general.
Yes, when what is issued under colour of law becomes systematically corrupt, it is self-evident first law principles that empower sound reformation. Yes, it may take generations of heart softening, gradual growth in understanding and emerging critical mass to get sound reformation. If you doubt me, contemplate the abolition of the slave trade and of slavery.
Yes, there are times and places where we have become so debased in thinking and lacking in soundness that attempted constitutional reforms -- especially, if driven by ideological pressure tactics -- become doubly dangerous.
(Jamaica, I am looking straight at you: do you not see that the manifestly poor governance of the ongoing reformation process is a self-exposing, self-discrediting, self defeating sign?)
Let us turn to a root source, here, Cicero in On The Republic:
On the Republic, Bk 3: {22.} [33] L . . . True law is right reason
in agreement with [--> our morally governed, responsible, rational, significantly free] nature , it is of
universal application, unchanging and everlasting; it summons to duty
by its commands, and averts from wrongdoing by its prohibitions.
And it does not lay its commands or prohibitions upon good men in vain,
though neither have any effect on the wicked. It is a sin to try to
alter this law, nor is it allowable to attempt to repeal any part of it
[--> as universally binding core of law], and it is impossible to
abolish it entirely. We cannot be freed from its obligations by senate
or people [--> as binding, universal, coeval with our humanity], and
we need not look outside ourselves for an expounder or interpreter of
it. [--> sound conscience- guided reason will point out the core]
And there will not be different laws at Rome and at Athens [--> or even Jerusalem!], or
different laws now and in the future, but one eternal and unchangeable
law will be valid for all nations and all times, and there will be one
master and ruler, that is, God, over us all, for he is the author of
this law, its promulgator, and its enforcing judge. Whoever is
disobedient is fleeing from himself and denying his human nature, and
by reason of this very fact he will suffer the worst penalties, even if
he escapes what is commonly considered punishment. . . . – Marcus
Tullius Cicero, c. 55 - 54 BC [See, last time, on seven first duties: to truth, to right reason, to warrant and wider prudence, to sound conscience, to neighbour, so too to fairness and to justice.]
Here, too, we may ponder John Finnis, regarding legal positivism and the natural built in law Cicero points to:
[John Finnis on Natural Law Theories,
in the Stanford Encyclopedia of Philosophy:] Natural law theory accepts
that law can be considered and spoken of both as a sheer social fact of
power and practice, and as a set of reasons for action that can be and
often are sound as reasons and therefore normative for reasonable
people addressed by them. This dual character of positive law is
presupposed by the well-known slogan “Unjust laws are not laws.”
[--> that is, legal rules and rulings as issued are
not merely social, observable facts of what has been issued under
colour and ceremonies of "law"; cf. SEP on the now dominant Legal Positivism:
"Legal positivism is the thesis that the existence and
content of law depends on social facts and not on its merits . . . [as]
John Austin (1790–1859) formulated it . . . '[t]he existence of law is
one thing; its merit and demerit another' . . . "
--> Instead,
what is issued under colour and ceremonies of law is inherently,
inextricably entangled with and accountable to prior canons of justice,
which brings in the Ciceronian framework of first, built in duties and
law of responsible reason;
1st - to truth,
2nd - to right reason,
3rd -
to prudence [so, warrant],
4th - to sound conscience,
5th - to neighbour, thus (as corollaries)
6th - to fairness and
7th - to justice,
[ . . . ]
xth - etc.
Where, the civil peace of justice is the due balance of
rights, freedoms and duties.]
Properly understood, that slogan indicates why—unless based upon some
skeptical denial that there are any sound reasons for action (a denial
which can be set aside because defending it is self-refuting) [sic]
—positivist opposition to natural law theories is pointless, that is
redundant: what
positivists characteristically see as realities to be affirmed are
already affirmed by natural law theory, and what they
characteristically see as illusions to be dispelled are no [proper]
part of [sound] natural law theory . . . .
The point . . . is made in another way by Orrego (Orrego 2007). When
the accounts of adjudication and judicial reasoning proposed by
contemporary mainstream legal theories are added to those theories’
accounts of (the concept of) law, it becomes clear that, at the level
of propositions (as distinct from names, words and formulations), those
theories share (though not always without self-contradiction) the
principal theses about law which are proposed by classic natural law
theorists such as Aquinas:
(i) that law establishes reasons for
action [--> echoing Cicero's "highest reason"],
(ii) that its rules
can and presumptively (defeasibly) do create moral obligations that did
not as such exist prior to the positing of the rules [--> e.g. drive on the left as a convention to order road traffic],
(iii) that that
kind of legal-moral obligation is defeated by a posited rule’s serious
immorality (injustice), and
(iv) that judicial and other
paradigmatically legal deliberation, reasoning and judgment includes,
concurrently, both natural (moral) law and (purely) positive law.
Contemporary “positivist” theories are, it seems, [--> inadvertently!] natural law theories,
distinguished from the [historic] main body of natural law theory (a)
by their denial that the theory of law (as distinct from the theory or
theories of adjudication, judicial duty, citizens’ allegiance, etc.)
necessarily or most appropriately tackles the related matters just
listed [as i to iv], and accordingly (b) by the incompleteness of their
theories of law, that is, the absence from them (and usually, though
not always, from their accounts of those related matters) of systematic
critical attention to the foundations of the moral and other normative
claims that they make or presuppose.
In short: a natural law theory of
(the nature of) law seeks both to give an account of the facticity of
law and to answer questions that remain central to understanding law.
As listed by Green 2019 (having observed that “No legal philosopher can
be only a legal positivist”), these further questions (which “legal
positivism does not aspire to answer”) are: What kinds of things could
possibly count as the merits of law? What role should law play in
adjudication? What claim has law on our obedience? What laws should we
have? And should we have law at all? [BTW, this article -- as is true for ever so many SEP pieces -- would be an excellent first point of departure for academic or professional reading.]
Here, we have seen a framework that starts with first duties that are self evident, and which are therefore objective and knowable in themselves. Even the skeptical objector will find himself already appealing to such first duties in trying to object to them, to gain rhetorical traction. (What else do you think, implying inadequate warrant, suggesting fallacious logic or dubious truth are appealing to? But, as Cicero pointed out, "it does not lay its commands or prohibitions upon good men in vain,
though neither have any effect on the wicked." A word to the wise.)
Of course, Aquinas is a classic point of reference. For example, he speaks of Eternal Law known only to God, Divine Law revealed to us (presumably in Scripture), Natural Law known to us through reason, and Human Law enacted by parliaments, courts etc. Such a framework is obviously reflective of the Christian Synthesis of Jerusalem, Athens and Rome that transformed our civilisation over 1600 years ago as we may read in say, Augustine. However, in our hyper-secularist day, that is liable to be tagged religious imposition and hotly dismissed.
To which, for cause, I say: nonsensical appeal to prejudice or even outright bigotry!
As in, what part of "self-evident, branch on which we all sit first principles, first duties and so too first law" is so hard to understand?
Does it register that Cicero was a pagan stoic and Roman Statesman, summarising the inherited consensus of the Classical world -- as he explicitly says in his opening remarks in De Legibus?
Yes, these principles (not to mention the direct testimony of conscience) do point to an eternal lawgiver, source of our world and our Creator and just judge. That is an onward matter, though one we would be well advised not to brush aside lightly.
Meanwhile, let us proceed to address what is already objectively true and knowable, rooted in branch on which we all sit first principles.
From these, we may proceed to soundly build law and government, also finding pathways to sober, sound reformation.
I think on balance, this is enough for now, to set out first principles without the distractions of contentious, confused, ill advised debates of our day. Apart from, of course, noting that the manifestly poor governance of the constitution reform committee in Jamaica is automatically a red flag that brings their claimed competence to reform a Constitution into doubt.
Let us get the principles straight, then we may soundly proceed. END
PS, I have been having weird error message loops from Google when I have tried to embed images. No, logging out and re-logging in does not work. I am wondering whether code updates by Google and/or by anti malware extensions may be at fault.
