A legal-illegal paradigm
Last updated 4/10/2008 9:25:29 AM
In the aftermath of the military coup of December 6th 2006 we have witnessed a lot of wrangling among the legal profession about the legality or illegality of legal decisions and legal appointments. Some good judges have not renewed their contracts while other equally good judges have been willing to take up appointments. There have been divisions within the Law Society and its members."The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. "
Some NGOs also have entered the fray and have refused to engage with the interim government on the grounds that it is part of an illegal regime. Others, while accepting that there has been an illegal overthrow of an elected government, have looked beyond legality issues and have focused on the issues of social justice which the interim government aims to address (and which were not adequately addressed under the previous “legal” government).
Is the Law our only guide?
In his recent book Living by Bread Alone (2008:78) Tui Rakuita writes:
“The predominant view of what occurred (in December 2006) is informed largely by the ‘legal paradigm’ resulting in the emergence of a legal/illegal dichotomy from which all other issues are analysed.
This widespread adoption of the legal framework also highlights the legalistic bent that is becoming more and more salient in our reasoning. Perhaps this is because the one-dimensional cognitive thrust offered by the legal community is convenient in a time of great transformation; in the face of uncertainty and flux this paradigm is offering certainty and conviction.”
[Rakuita] then goes on to say:“However this stance is not without its concomitant costs. Our cognitive frameworks are so completely immersed in this duality that a certain lethargy in conceptual thinking has quietly crept in. This has been exemplified by a certain reluctance to see beyond the legal/illegal impasse. This is not in any way to dismiss the importance of the legal dimension pertaining to validity claims, but rather to point at other issues that do not derive their justificatory premises from the legal framework of understanding.”
He suggests that we need a broader, multi-dimensional approach in our thinking and reasoning.
In my booklet Thinking About Democracy Today (2007:36) I quoted the words of the French Minister for Foreign Affairs who said: “It is sometimes necessary to go outside of the Law in order to achieve justice.”
Of course, these are potentially dangerous words but they contain an important truth - especially where the law has been framed to protect those with wealth and power or those who promote an extreme nationalist agenda.
I also quoted the words of Thomas Jefferson - one of the signatories of the American Declaration of Independence from Britain (which was at the time an illegal, treasonous document):“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property … thus absurdly sacrificing the end to the means.”
Thomas Jefferson Correspondence to John Colvin 1810.
Equity
Derek Roebuck (2003:83ff) in his article "Insights Into Equity" points out that no one has yet found a word or phrase to satisfactorily describe “equity” in English. However it is basically about justice and what is right. He traces its origins to Plato and Aristotle through Cicero and Justinian to the role of the Chancellors in medieval English times.
In his Nichomachean Ethics (5.10) Aristotle states:[...]the ‘just’ and the ‘equitable’ are both good but the ‘equitable’ is superior. The difficulty arises because the ‘equitable’ is just but not ‘just according to law’.
It is a correction of legal justice. The reason is that every law is general and it is not possible to deal generally with some matters.”
[Aristotle] goes on to state that the law takes into account the majority of situations but is not able to account for every situation. So the legislator must make a decision to correct the law for those particular situations.
Justinian’s Corpus Juris and Digest spoke of the need to supplement or correct civil law and stated that “indeed in all matters, but particularly in law, equity must be observed”.
The prevalence of equity could hardly be more strongly stated than in the Emperor’s own instruction: “It is my wish that the leading principle in all matters shall be justice and equity rather than the strict law”.
In the great British legal tradition (influenced no doubt by Roman law) there grew up a body of law known as equity which originally came into existence in order to mitigate the rigid application of legal rules under the common law system.
Equity developed as a result of the injustices caused by a strict application of the common law and was originally based on popular notions of morality and natural justice.
The famous Earl of Oxford’s case in 1615 determined that, whenever there was conflict between common law and equity, equity would prevail. An important distinction that needs to be noted between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness, natural justice and flexibility has only general rules known as the maxims of equity.
The primacy of equity in England was enshrined in the Judicature Acts of the 1870s. Although the courts of equity and the common law were then brought together into one unified court system and so are implemented by the same courts, the two branches of the law are separate. Where there is conflict, equity still prevails.
Roebuck (2003:93) in his article noted above has this to say about the relevance of
equity for lawyers and judges today:“Those who try to dispense justice have to face the dilemma which Aristotle elaborated so well. The law tries to ensure consistency. Certainty is a value. But no law can be refined enough to meet all the contingencies that life presents. We are not just clever enough to foresee all possible future events and then put into words the rules we want to govern them. So we give our decision-makers discretion. As long as we recognise this inevitability, we can do our best to be fair. Fairness and certainty are both desirable.”
Then comes a statement which, I think, may be particularly relevant to our current situation in Fiji today:“Some judges feel more comfortable if they work well within the rules. Some like to create more flexibility for themselves and are so uncomfortable with what they see as an unfair outcome that they cannot rely on the rules to relieve them from unease. For most judges, the nature of the dispute and the prevailing wisdom among their colleagues will influence which way they go.”
He concludes with the statement:“In any legal system which claims to provide justice - and which does not? -
there must be scope for Aristotle’s equity, that which provides for exceptional and unforeseen problems to be dealt with exceptionally.”
Jesus and the Law
Some interesting anecdotes from the life of Jesus are also very illuminating.
He lived in a society which was dominated by a strict observance of the law and a rigid interpretation of the law. [Jesus] obviously felt very uncomfortable in such an atmosphere where observance of the covenant was interpreted in such legalistic terms and God was seen as demanding such strict observance of laws.
This did not reflect the God who described himself as “kind and merciful, slow to anger, full of compassion and love”.
In John’s gospel (John 8:1-11) we are told that a woman who had been caught in the act of committing adultery was brought to Jesus by the Scribes and Pharisees - the strict religious legalists of the time.
They pointed out that, according to the Law, she must be stoned to death but they asked what he thought should be done. It was a trap of course to catch him out.
What Jesus did is very revealing. He refused to dispute the law or give a legal response but simply suggested that those Scribes and Pharisees who were without sin should cast the first stone.
Then he sat and doodled in the sand waiting to see what would happen. One by one the woman’s accusers went away. When only the woman remained, Jesus, while recognizing she had done serious wrong, told her to go and sin no more.
The point is that Jesus did not deny the illegality of the woman’s action and did not dispute what the Law demanded. But he recognized that there was another very important dimension that was being neglected and that needed to be taken account of.
That was the whole dimension of compassion which should inform any legal decision. Jesus thought that compassion for people was of greater value than seeing that the demands of the law were implemented.
Of course this was not the only instance where Jesus showed that he valued compassion and concern for people over legality. In the story of the Good Samaritan (Luke 10:25-37) the Jewish priest and Levite obeyed the Law and refused to touch the unclean body of the Jewish man who had been bashed up and left to die by the roadside.
They certainly obeyed the Law very strictly but they showed no compassion and concern for someone in need. It was the Samaritan - the religious ‘enemy’ of the Jews - who overlooked legality and undertook to take care of the man. Jesus praised him for his compassion and he has become a symbol of care and concern the world over.
Again, when asked by the Pharisees if it was lawful to cure someone on the Sabbath (Matthew 12:9), Jesus made a common sense observation that, if a sheep fell into a pit on the Sabbath there would be no hesitation in letting someone pull it out, so he saw no problem in curing a person of his sickness on the Sabbath.
Elsewhere he observed that “the Sabbath was made for man, not man for the Sabbath”. In other words laws surrounding the Sabbath must be interpreted sensibly and with compassion.
It seems that Jesus often bypassed the legal/illegal paradigm and saw it as unhelpful when there were bigger human issues to be dealt with. As he remarked: “I have come not to destroy the law but to bring it to fulfillment”.
He sees himself as not in opposition to the Law but seeing the law in a wider perspective - the perspective of his Father’s compassion and understanding love.
Conclusion
The current legal/illegal paradigm being pursued in Fiji today seems to be getting us nowhere. It simply creates an endless cycle of negativity and stalemates. While the law is extremely important and legal issues need to be pursued, it is extremely important to recognise that other dimensions also need to be taken into account.
There are considerations above and beyond the legal ones. As Tui Rakuita noted above, there are “other issues that do not derive their justificatory premises from the legal framework of understanding.”
A truly democratic society needs the rule of law but it cannot be built solely on the rule of law. It also demands that the law be balanced by principles of social justice, compassion and common sense. It may not always be helpful to fight for the rigid application of the law.
Bibliography
Barr, Kevin (2007) Thinking About Democracy Today (ECREA. Suva)
Radan, Peter, Cameron Stewart and Andrew Lynch (2005) Equity and Trusts (LexisNexis
Butterworths. Sydney)
Rakuita, Tui (2008) Living By Bread Alone (ECREA. Suva)
Roebuck, Derek (2003) “Ínsights into Equity” in Bond Law Review 15 (2) December
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