Moral foundations of law
Martin Henry, Contributor
Try walking naked down Main Street or having sex in Town Square in a country that allows you to drink alcohol and smoke tobacco and to have sex with as many partners as you wish, providing you don't marry more than one of them and none of them is under 16, and you don't do it in Town Square.
We do legislate morals. But even more importantly, there is no legal code that is not built on moral foundations of some sort. That moral code will determine the quality of the laws and the quality of the society governed by those laws.
Right now, Islamic extremists are mounting struggles in a number of countries to impose sharia law. Christian extremists are doing the same in some of the bastions of Western democracy. And one of India's most powerful and popular political parties is devoted to imposing a Hindu religious and social order.
There is a lot of argument about whether morality and moral codes have to be based on religion. What is certain is that the alternative ideologies that offer moral codes very quickly acquire all the trappings and modus operandi of religion. We have seen this with communism, Nazism and fascism. The religiosity of communism with saints and martyrs and shrines and ceremonies is well-known. In North Korea, one of the few surviving communist states, it is a moral - and religious - duty to preserve portraits of The Leader from harm, as patriotic worshippers did for portraits of Dear Leader Kim Jong Il at risk of their lives in a fire sweeping state buildings in Pyongyang a few years ago.
The Los Angeles Times reported in January 2010: "Seamen who bravely go down with their ship can attain glory in any nation, but in North Korea, hero status also comes to seafarers who die while trying to preserve images of the Dear Leader ... . The autocratic state [has] offered posthumous awards to crew members who drowned while reportedly attempting to save portraits of leader Kim Jong Il and his late father, Kim Il Sung, as a cargo ship sank in frigid water off the Chinese coast ... . It's unknown whether the images were rescued."
Richard Wurmbrand, a Romanian Protestant pastor who was persecuted for his faith and imprisoned under the communists, wryly observed that atheists worship their No-God as devotedly as believers worship their God.
The French Revolution, promising 'liberté, égalité, fraternité', abolished the worship of any deity except Reason and the State and delivered instead The Reign of Terror.
"One of the ceremonies of this insane time," one historian noted, "stands unrivalled for absurdity combined with impiety. The doors of the Convention was thrown open to a band of musicians, preceded by whom, the members of the municipal body entered in solemn procession, singing a hymn in praise of liberty, and escorting, as the object of their future worship, a veiled female, whom they termed the Goddess of Reason ... .
"She was unveiled with great form, and placed on the right of the president, when she was generally recognised as a dancing girl of the opera ... . To this person as the fittest representative of that reason whom they worshipped, the National Convention of France rendered public homage."
The orator who introduced the worship of Reason waxed eloquent: "Legislators! Fanaticism has given way to reason ... . The French have celebrated the only true worship - that of Liberty, that of Reason." The assembly was commanded, "henceforth acknowledge no divinity but Reason." The laws were accordingly adjusted, including the introduction of a 10-day week and reducing marriage to an easily dissolved civil contract. And the Reign of Terror followed.
At the start of the month, the 50/50 Project operating out of the Sir Arthur Lewis Institute of Social and Economic Studies at the UWI hosted a conference on 'Law & Justice in the Commonwealth Caribbean: The Post-Independence Experience'. Unfortunately, I missed it.
The 50/50 Project aims to critically examine the first 50 years of Independence in the English-speaking Caribbean and to make projections for the next 50 years. The 'Law & Justice' conference covered topics such as: 'The Legal System, Justice and Nationhood'; 'The Constitution and the Structure of Governance'; 'From Independence to Caribbean Integration'; and 'Impact of Law on Development'.
I am interested to know if anybody presented on the foundations of Jamaican and English Caribbean Law. English law, from which ours is derived, is deeply rooted in the moral code of Protestant Christianity with its particular vision of humankind, society and government.
As our own son, Orlando Patterson, who is to be shortly honoured here for his scholarly work, argues in his monumental study of Freedom Volume 1: Freedom in the Making of Western Culture, the very concept of freedom is a peculiar political contribution of the Western civilisation. "No one would deny that today freedom stands unchallenged as the supreme value of the Western world," Patterson opens his preface. There is an entire section of the book on 'Christianity and the Institutionalisation of Freedom'.
Patterson rises to crescendo in the concluding moments of the 'Coda': "From its Judaeo-Christian religion, forged in the sickening horror of Roman slave society," he writes, "the West learned the reinforcing spiritual truth that out of evil cometh good." The vision of Israel emerged from the bondage of Egypt. Redemption - spiritual freedom - was not simply liberation from slavery to sin, but as Paul saw with his fearsome vision, the suffering of sin made necessary the coming of the Christ and the promise of the cross - that central and most protean civilisational symbol of death and rebirth, estrangement and reconciliation, slavery and salvation.
"Less obviously, but for that very reason, more subliminally potent, in the image of the nailed, dying God, we see the permanent horror of constraint; in the image of the wooden cross - the vertical crossroad, the Pythagorean 'Y' - we see the ultimate veneration of choice. Whether we choose to believe this or not, it is the strange, terrifying vision, at once moral and divine, that has fashioned the culture and genius of the West.
"All who have come up from the abyss of slavery and serfdom - the children of slaves as well as the children of slave mongers - must be humbled by this truth each time we celebrate our freedom."
The most influential religion on law in the West and the rest of the world today is humanism. Humanism makes humans the measure of all things and their own god. Human law based on traditional Christian moral foundations and those of the other great monotheistic faiths was viewed as derived from divine law and with the intent of restraining evil and promoting good.
The 18th-century English jurist, Sir William Blackstone, whose Commentaries on the Laws of England deeply influenced English jurisprudence and the American Declaration of Independence and Constitution, wrote: "... Municipal law is a rule of civil conduct prescribed by the supreme power in a state. I proceed now to the latter branch of it; that it is a rule so prescribed, commanding what is right, and prohibiting what is wrong." And Blackstone meant right and wrong in a moral sense.
Humanist law is derived purely from human reason and is aimed, as in the French Revolution and in communism, to perfect humans and human society by legislative engineering. But what the humanist leaders will not tell the people, and the people must learn to figure out for themselves, learning from history, is that if there is no higher law and no transcendent moral code as the basis of human law, the law will not be, and cannot be, Everyman's Law, but will be Strong Man's Law, that is law imposed by the powerful, with no checks upon them.
If freedom, and from it democracy, indeed have certain necessary moral underpinnings derived from a certain source, as so many of the founders firmly believed, freedom and democracy cannot be sustained with those foundations removed.
As the first American president, George Washington, noted: "And let us with caution indulge the supposition that morality can be maintained without religion. ... Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government."
And, "of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labour to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. ... Let it simply be asked, 'Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice?'
The second president, John Adams, wrote: "We have no government armed with power capable of contending with human passions unbridled by morality and religion. ... Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
There is a vast political, legal and social experiment under way globally within which our own country is caught up to write laws without reference to, and often diametrically opposed to, the Judaeo-Christian moral code on which Western civilisation and its concept of freedom were founded. There will be severe unintended consequences.
Martin Henry is a communication specialist. Email feedback to firstname.lastname@example.org.