SIR William Blackstone’s Commentaries on the Laws of England has this to say: “Law, in its most general and comprehensive sense, signifies a rule of action; whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.”
Blackstone was a British jurist, judge and Tory politician in the 18th Century. HisCommentaries, until today, remains the most well-known, primary piece of reference in all law schools in Britain and world-wide.
His definition of law as quoted above is about the law of nature, over which men have no control.
Only the Creator, who knows nature, can determine the law of nature.
Probably that is different from the law regulating men’s conduct of life.
Although the law of God or law of nature may have some control over the nature of men, many portions of the law regulating human conduct are determined by men themselves, according to the need of the majority.
But the law, in its very nature, must be just and seen to be just.
Thus, all laws in all legal systems must be just and must be seen to be just.
“Just” or “justice”: is easy to say but it may not be easy to identify its elements or characters.
John Stuart Mill, another English philosopher, among the most influential thinkers in the history of liberalism, defines some characters of justice, which include justice as legal rights and moral rights.
According to Mill, “it is mostly considered unjust to deprive any one of his personal liberty, his property, or any other thing which belongs to him by law. Here, therefore, is one instance of the application of the terms just and unjust in a perfectly definite sense, namely, that it is just to respect, unjust to violate, the legal rights of any one”.
Mill’s idea on justice says that in order to establish justice, man should not be deprived of his legal rights, established by law.
But Mill put a qualification: before a man is deprived of his legal right, it must first be determined whether the law is right in securing his rights.
A question to answer is, “Is the law securing man’s right a good or a bad law?”
On what standard can a law be said to be a bad or a good law? At this juncture, the word “just” or “justice” comes into the picture.
The possible answer would be: a law is bad if it is unjust, or its application is unjust, and a law is a good law if it is just and it is administered justly. That is the reason why we have a phrase like “the administration of criminal justice”.
For instance, is a law legalising slavery a just law or does it meet the requirements of justice?
Universally, we must say that the law is bad.
Law should not legalise slavery, for men have dignity and their dignity must be respected at all cost.
It is the nature of the law that it must guarantee the dignity of men. When the nature of law meets the nature of men, there will be no doubt on the just character of the law.
However, the above illustration is simplistic in the sense that there may be more complicated situations in determining the nature, the principles and the values that may be synergised in the endeavour to make and apply a good and just law.
Among the legal fraternity, the question that is always at the centre stage of debate is whether a law must contain some values such as morality, religion, history and culture in order to make it just, and consequently for it to be applied as a good law.
Saint Thomas Aquinas, the most significant contributor to the development of naturalist theory in the Middle Ages, believed that law is essentially a moral phenomenon, which implies that law is to suit society.
It is also the naturalists’ argument that human nature was a divine creation that would make decisions based on the nature of the society that humans were living in.
Aquinas believed that God is the source of authority and all human laws must conform to the law of God.
Any tyrannical law or law inconsistent with the law of God is not law in its actual sense.
Lord Denning, who was a lawyer, judge, served in the House of Lords and held in high regard by much of the judiciary said, “Many people think that religion and law have nothing in common ... People who think that have got a wrong idea both of law and of religion ...”.
In the same vein, Denning was quoted as believing that religion and law are one and the same. According to Denning, law seeks to see that truth is observed and that justice is done between men.
According to him, what is truth and what is justice is not the product of human’s intellect but of his spirit, and spirit is the creation of religion from where right deeds would flow. At this point, according to Denning, religion and law meet.
Although Blackstone, Aquinas and Denning’s viewpoints on the elements of a good and a just law are not uncontested, it indicates recognition, by some prominent, classical and contemporary thinkers, philosophers and scholars, that one criteria of a good and a just law is that it is the law of God. Prof Madya Dr Shamrahayu A. Aziz The STAR Home > Opinion > Columnists IKIM Views Tuesday, 7 June 2016