cormacburke.me.ke

There is a growing mood of lawlessness in modern secular society. It has many expressions, some violent, some simply corrupt. The spectacular increase in criminality, corruption and bribery as accepted things, the "rip-offs", the black markets, the sense of arbitrariness in conduct, the one-sided use of force, the ineffectiveness of international organisms devoted to peace and justice, the incidence of terrorism, the pervading aimlessness, the hooliganism, the dislike of the police ... all suggest a contempt and at times a downright hatred for law and order, and for authority, that can have few parallels in history.
            Modern secular man has gone a stage beyond Mr Bumble, Dickens' parish beadle whose considered opinion was that "the law is an ass". Contemporary opinion of the law is even worse. The law is not just an ass, a beast of burden. It is a burdensome beast, and a dangerous one at that. It is an enemy: an enemy of freedom and an instrument of oppression.
            Authority - which used to be understood as the moral force behind law - is not looked on any better. Today authority is mostly equated with political or physical force (cf. Chapter 11). As such it may be feared. It is not looked up to or revered. It may well be hated. It is generally despised.
            This anti-law, anti-authority outlook pervades modern society. That past or present abuses of the law are part cause of it can be readily admitted. It is also no doubt a reaction to the tendency of the modern state to clamp controls on almost every area of its citizens' lives, and the citizens' consequent sense of being straitjacketed in redtape and legislation. Despite the permissiveness of modern laws in the area of sexual behavior, many people feel that their lives are being caught in a growing mesh of legal restrictions.
            This mentality is often linked to a pining after "democracy", understood not as a mere electoral system but rather as suggesting a society in which people are felt to matter instead of just being objects organized by soulless bureaucracies; a society based less on structures and more on person-to-person relationships, where there is less law and authority or, at least, where authority is exercised in a more human manner.
            Some people go further. The more impersonal and oppressive they feel governments and systems to be, the more they dream of an "ideal" society where - they suppose - freedom will exist without laws and will in fact be the consequence of there being no laws. In the democracy of their dreams - which will truly be a "people's" society - the yoke of authority will somehow completely disappear. And, as they turn over in their dreams, they sigh, "If only we were free from laws!"
            These are dreams, no more. In fact, a society without laws would not be a dream; it would be a nightmare. Law, as we will try to show, is absolutely necessary for any society where people are held to matter. So is respect for law.
            No moral or voluntary body can survive a generalized loss of respect for law on the part of its members. If the members of; say, a football club lose respect for the laws of the club, they leave the club; and the club either acquires new law-abiding members, or else it dissolves. A geographical political society can survive a loss of respect for law and authority on the part of its citizens- by becoming a police state. If the members of a physical society are not ruled by consent, yet cannot leave the society, they will be ruled by force.
            This anti-law movement is still on the upsurge. Its social and political consequences are only beginning to make themselves felt. It is already evident however that modern secular society is not in a healthy condition. It may have suffered or may be suffering from unjust laws or unjust exercise of authority. But its anti- authority, anti-law attitude is a more fatal disease still. Bad laws are bad. No laws, the rejection of all law, is worse. Anarchy - the absence of all law and government - means the collapse of society.
Pro-rights, anti-law?
            To help the modern mind emerge from this tangled web of anti-law prejudice and to come to understand the positive nature of law, an acceptable starting-point must be found, some stance or position which the modern spirit itself finds little difficulty in sharing. It can be found, I think, in the human rights movement.
            Most people today like to proclaim themselves pro-human rights. It is a good position. But it simply cannot be combined with an anti-law mentality. A pro-rights person must be against bad laws, but must equally be in favor of good laws. A generalized anti-law mentality makes no sense in a pro-rights person for the simple reason that human rights, which are prior to human law, nevertheless require the recognition and the protection of human law.
            The human rights philosophy necessarily rejects the thesis that man possesses only those rights which the State grants him. No, says the human rights philosopher; man's rights do not derive from the State, they derive from his human nature[1]. It is as man, and not just as citizen, that he possesses his basic human rights. And he possesses these rights whether the civil law of a particular country recognizes them or not. It is precisely when the civil law does not recognize them that one gets legalized violation of human rights.
            Bad laws are a violation of human rights. Good laws are their necessary protection. Three points in particular show this:
            1) if rights are to be protected, they must be defined. It is part of the work of law to define rights;
            2) further, if someone's right is violated, he needs an effective remedy, a process that others must respect. And that again is a matter of law: of courts and judges and law enforcement;
            3) thirdly, rights imply obligations. If I have a right to property, then others have an obligation to respect my right to my property. And I have an obligation to respect their rights to their property. And these obligations - to respect the rights of others - also need to be set out in law.
            The human rights campaign, after all, is a campaign to have bad laws abolished and good laws put in their place. It is a campaign to have people's proper human rights recognized and upheld by the civil law. If rights are not upheld by law, people are inevitably going to be exploited.
            The third point mentioned above merits special consideration. No philosophy of rights (and for that matter no juridical protection of rights) can exclude the acknowledgement of obligations. If I assert my right to free speech, for example, yet use this right systematically to censor or silence others, then I am a philosopher not of men's rights, but of my "rights". I accept no obligation to respect the rights of others - undoubtedly because the restrictions involved in doing so inconvenience me.
            It is true that law always involves some restrictions and that restrictions are a nuisance - at least at first sight. But only a superficial and selfish approach sees no more than the restrictions involved in law. A deeper and more mature outlook sees law in terms of reciprocal rights and obligations; and restrictions then appear as the necessary consequence of the interplay between just rights and just obligations[2]. My just rights restrict other people in the sense that they are justly obliged to respect my rights. And their just rights restrict me, in the sense that I am justly obliged to respect their rights.
            The defence of the rights of all is bound to place restrictions on the freedom of some: now mine, now yours. Now I am obliged to yield at a road crossing, now you. If neither of us is prepared to yield, the result is collision and anarchy.
            Restrictions, then, may be bothersome. Yet they are essential - to defend both my freedom and that of others. If it is true that someone is always inconvenienced by a law, it is also true that if the law in question is just, the inconvenience is a good thing. It reflects the demands placed on the individual by regard for others or for the common good. Most people, if they reflect on this point, are capable of appreciating it. Then their response to the law need not be one of mere submission or reluctant obedience. It can and ought to be a welcoming response to what is seen as an admirable disposition of justice.
            Therefore, the suggestion that emphasis on individual rights signifies a de-emphasis on law is quite false. Emphasis on rights means emphasis on duties, and therefore emphasis on law as the means by which rights are protected and duties enforced.
            Declarations of Rights have been frequent and popular in history.    I Declarations of Obligations are far less frequent, might not be so        popular, and yet are equally necessary. Widespread voluntary acceptance of obligations is a real test of social health, an infallible sign of the respect of each member of a community for his fellows[3].
            If we are sincerely pro-human rights, we will love and defend our own rights, but we will love and fulfil our obligation no less - for that is to love the rights of others. That is the test of the true lover of rights. If I love only my rights, then I may easily come to love other people's wrongs, i.e. the wrongs that, in my self-assertion, I am almost certain to do them.
            The effective presence of justice in a society always depends on people's awareness of their obligations and their readiness to fulfil them. This is true as between individuals. It is also true as between classes, rich or poor. The class that is conscious only of its rights and not also of its obligations will easily defend its rights by doing wrong.
Self-interest or common good?
            Here we can see how great is the difference between a society whose members have a genuine participatory spirit, and a society whose members are imbued with individualism.
            A society can truly be called "participatory" when a majority of its members share that concern for the common good, are prepared to place its demands above individual self-interest, take pride in the principle of justice for all, and feel a common responsibility to maintain the laws which apply this principle to social life.
            A society where individualism is on the upsurge shows the opposite tendencies: the notion of the common good is obscured or forgotten; self-interest becomes paramount; rights are emphasized but duties are not; justice is good if k means "justice for me", and not so good if it means "justice for you"; permissiveness instead of justice becomes the guiding principle of law (the fact that permissive laws, even if welcomed and used, are never admired, shows how people sense that such laws are devoid of real justice).
            Permissive laws often simply permit people to violate their obligations towards the rights of others. A married person exercising the "right" to divorce violates their partner's right to fidelity (which more often than not is something the partner wants), and especially violates their children's right to an unbroken home, which is something the children always want.
            The theory of permissiveness is that each man is entitled to be a law to himself; at least in his personal and private life. But public life is built on the lives and values of individuals; and so the permissive mentality breeds a spirit of lawlessness in public and social life as well - a process which is accelerating all around us today.
            The permissive philosopher may suggest that law is an enemy of life, that the removal of law favors true growth and healthy spontaneity. This is not so. Organic life, the bodily or intellectual life of an individual, and very particularly the social life of a community, develop soundly only if they follow certain laws of health and growth. Failure to follow these laws results in stagnation at best and destruction at worst. A body can grow only because cells and tissues observe their proper laws of growth and their proper relationship to one another. A "lawless" cell is a cancer; and its spontaneous growth can bring death to the whole body. This applies to the social body too.
            An individualist society is a flawed structure. Lacking the internal spiritual forces that can hold it together - community spirit, sense of justice, love for the common good - it tends to lawlessness and disintegration.
The strength of the law
            To be anti-law is to be anti-social, anti-others. It is, in the truest sense, to be anti-democratic. The anti-law mentality does not favor or defend the freedom of the people. It favors the freedom of the few (the powerful, the clever, the unscrupulous) to exploit the people, who find that as the anti-law mentality grows the strength of the law to protect their rights is gradually eroded.
            Society needs the strength of the law. Here we should note that the law cannot truly be said to be strong just because k is feared and obeyed out of fear. If that is simply due to the fact that it is backed by coercive power then it is not the law that is strong but the power behind it. Law needs to be strong in itself; and this only occurs in virtue of its justice.
            Both governments and citizens need to realize that the ultimate authority of the law does not derive from its being an expression of the will of party or people. Its binding force does not come from popular consent (nor is it removed by popular dissent). It comes from justice. A law does not have more authority because it is approved by many or less because it is enacted by few, or even by only one. A just measure ought to be obeyed - i.e. it carries authority - even if it is a minority decision; and an unjust measure ought to be resisted - it lacks authority - even if it is backed by a landslide majority. A just law binds as much in a democracy as in a totalitarian state; an unjust law binds in neither.
            An excess of legal enactments is undoubtedly one of the plagues of twentieth-century life. Most modern societies could indeed do
            with far fewer laws. But no society can do with less justice or with less respect for justice. A "democracy" where people feel free not to respect the law is no people's society, nor will the freedom of the people survive long in it.
            The positivist or voluntarist concept of law - that the force of law simply derives from man's will in legislating (cf. Appendix I) - can never bring about harmony in society (why, after all, should the minority have to respect the will of the majority?).
Bowing before authority?
            Anarchists reject all law, on principle. Most people, even if imbued with the anti-law mentality, do not go so far; they accept some laws as a necessary evil. Yet these same people often retain an unyielding hostility towards any form of authority, for in it they see an unwarranted privilege claimed by some persons over others. They are not, they say, prepared to bow before authority; this seems degrading to them as suggesting that some men hold themselves to be, and are thereby acknowledged as, superior to others....
            In a certain sense, unless great pride is present, we should be prepared to bow before anyone because we see the image of God in him or her. For our present purpose, however, we can pass over that point and simply say that what is implied in showing respect for authority is not so much looking up to the persons as looking up to the relationship between persons; it is sensing the sacred quality of justice - the will to give each person his due - and therefore being prepared to revere justice, to bow indeed before it, as the basic value of human society.
            To be "agin the government" is a common expression of the anti-authority attitude. Many people currently tend to be excessively suspicious of all government. Even when it is not an instrument of actual oppression, government implies rulers and subjects, and therefore seems to suggest superiority and inferiority. Is there not something degrading in being "under" authority?
            Authority indeed implies a relationship between those wielding it and those subject to it. But this is not essentially a relationship of power; nor should it be based on force nor on the ability to bring others into subjection. In a healthy society it is a relationship of free wills, properly ordered towards justice and the common good. So, of its nature, it implies reason and freedom in both those exercising and those accepting authority. Serene reflection tells us that where authority is properly exercised in the application of just laws, it is not opposed to personal freedom but fosters and serves it.
            To the thinking man, then, legitimate authority is seen as a positive good. The principle of authority has a certain sacredness to it, because it evidences the presence of justice in society. Acceptance of authority is a reasonable act. Obedience to authority becomes an act of freedom and a sign of maturity. Behind legitimate authority lies the will of God (cf. Rom 13:1); that is the ultimate reason for its sacredness. Acceptance of authority is therefore a truly religious act, just as is the wielding of authority. The one exercising authority realizes that the moral power he is endowed with comes from above (cf. Jn 19:11) and that he will have to answer for any failure to exercise authority in the spirit of God's justice.
            These considerations should also help us to understand how false is the suggestion that the "democratization" of a society somehow means that laws are less binding and authority is to be respected less. If anything, precisely the opposite is true.
            If by democratization one means that the people are more involved in concern for the affairs of the community, then clearly they - each one - should be more aware of the common good, of the rights of others and of the binding force of the law and the respect due to authority. Their free response to these values shows their "democratic" sense and their maturity.
            In a truly participatory society each citizen shares the overall concern for the common good. A society of individualists can never be truly a democratic or participatory society. In fact a society or a community of individualists is a contradiction in terms. A people of individualists is simply not a people.
            Each society needs a governing authority. Only anarchists deny this. A society can suffer from the unjust use of authority. But it will also suffer if just authority is not respected. A society is healthy and strong in the measure in which laws are just, authority is exercised - firmly and without partiality, in accordance with the law - and the members of the society obey those laws and look up to that authority.
            The human rights movement is urgently calling modern man back to a true philosophy of law. Positivist or voluntarist philosophies - which are the root cause why the acceptance of law has come to suggest servilism to so many - need to be abandoned. A juridical philosophy based on the natural law must be re-established.
            No society is possible if each man is a law to himself. The lawless man places himself above or outside the law. He becomes an outlaw; an enemy of society, a threat to the rights of others, to the common endeavor, to the common good.
            A society therefore needs a common law, i.e. a law applicable in equal justice to all, binding on all and accepted in general by all. This common law, as between all men, is the natural law. To deny the existence of a natural law is to deny the existence of a shared human nature, a common humanity linking all men. It makes any philosophy of human rights meaningless, and dissolves human society (cf. Appendix II).
            Over and above the natural law, Christians have their common law in the Law of Christ. This Law links them, guides them, regulates their mutual rights and duties, and is the basis for their Christian life and freedom, in communion with Christ and with one another.
Enforcement of law
            The law is not meant to be a theory or an abstraction. It is meant to serve as a practical norm of action. If the law simply declares or defines rights but does no more, this is admirable but also useless. It must protect those rights against violation, and it must afford a remedy if they are in fact violated.
            What happens if a violator of rights is aware of the law but unwilling or reluctant to fulfil his obligations? How is the law to be enforced and the balance of justice restored in such a situation?
            Law enforcement in a political state is normally the role of a police force armed with the physical means to compel compliance with a legal decision. In such cases the actual achievement of justice depends on the strength and also on the integrity of the law-enforcement agency. If the police are lax or weak and especially if they are corrupt (e.g. if they can be bribed by an interested party), then a person may find that a court judgment upholding his rights remains a dead letter: he just cannot get compensation for damage done to him, or re-enter the house of which he has been wrongly dispossessed.
            In a moral and voluntary body, such as the Church, there is no police force; there is no way of physically compelling a person to obey the law and to fulfil his voluntarily-assumed obligations.
            Then the upholding of rights and the enforcement of law has to follow a different path - a moral process where the very solidarity of the society itself is put to the test. In this situation free and responsible agents must be conscious of their proper parts and play them, if justice is to be done.
            The part of the holder of authority - once due process has established that someone is violating particular rights or the common good - is to address a moral requirement to that person: "respect this law; accept this decision; obey". For his part, the person so required is morally challenged to a free response: "Alright, I will respect the law; I will obey it; I will do what I am called to do".
            It is a moral challenge in the special sense that it challenges him to be loyal to the commitments which he freely undertook in choosing to belong to that voluntary body. A major one of these commitments is readiness to accept the decisions of the legitimate ruling authority of the community.
            One truly belongs to a "people" when one wants not just one's own good -despite the cost to the people - but the good of the people, despite the cost to oneself. This loyalty to the common good stimulates responsibility in the individual member of a community - to obey the just exercises of authority without complaint or self-pity - and stimulates responsibility equally in those ruling the community, to exercise authority justly without fear or weakness.
            The football player who refuses to accept a yellow card, justly given, is as irresponsible and as unfit for football as the referee who fails to give the yellow card when the rules of the game - the good of the game - call for it.
            There would be evident childishness in wanting to belong to a voluntary body yet refusing to accept any authority within it. It would be as childish as the attitude of someone who wants to play a game, but only on condition that he does not have to obey the referee or that he can play k according to the "rules" that he himself makes up at any given moment.
NOTES
[1] A coherent human rights philosophy necessarily involves belief in a common of human nature, i.e. in the Natural Law. Cf. Appendix II.
[2] "In exercising their rights, individual men and social groups are bound by the moral law to have regard for the rights of others, their own duties to others and the common good of all" (DH 7).
[3] The Code of Canon Law lists in detail the Obligations and Rights of Christians: of Christ's Faithful in general (cc. 208-223), of Lay People (224-234), of Clerics (273-289). It is interesting to note, as the title to each section shows, that obligations are specified not only as well as, but before rights.