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.]
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.
