There are two schools of thought here: natural law and legal positivism. Those who profess natural law argue that the link between law and morality is incontrovertible and inextricable. In other words, the relationship is not contingent.
by Dr. Ruwantissa Abeyratne
The fundamental basis of this nation’s laws was given to Moses on the Mount…If we don’t have a proper fundamental moral background, we will finally end up with a totalitarian government which does not believe in rights for anybody except the State.
― Harry Truman
( January 15, 2018, Montreal, Sri Lanka Guardian) Manik de Silva’s well reasoned article of 14 January titled Sri Lanka: President’s term five years or six? Where he says [T]here is no question that the president, whatever the legal position, is morally bound to serve for five years and no longer. If the judges rule that his term is six years, there is nothing to stop him from vacating office at the conclusion of the fifth year and proclaiming a presidential election to elect a successor if the presidency is then in existence, raises an interesting question. If, as the Attorney General of Sri Lanka argues, the 19th amendment which reduced the term of office of the President from 6 to 5 years is prospective and not retrospective, and the President was elected at a time when the term of Presidency was 6 years, the President could retain his office until 2012; or, as Mr. de Silva says, irrespective of such a decision by the Supreme Court, the President could disregard the ruling (which would be law of the land ) and stand by his statement which he made when he was elected, that he would be President only for 5 years, would the President be bound to follow the law and be morally exonerated from being fettered by a law which goes against his promise to the people of Sri Lanka? Mr. de Silva comes up with a practical solution suggesting a compromise between compliance with the law and preserving the President’s moral dignity and credibility with the people of Sri Lanka, by resigning after 5 years in office and calling for a Presidential election on the ground that the prospective 19th Amendment which limits a President’s term of 5 years was initiated by him and therefore that he is morally obligated to adhere to the Amendment. In other words, this becomes a dialogue on the primacy between law and morality.
There are two schools of thought here: natural law and legal positivism. Those who profess natural law argue that the link between law and morality is incontrovertible and inextricable. In other words, the relationship is not contingent. Therefore, if there is a clash between the two (natural law and human law), morality should take precedence. In other words, even if the law says the President can hold office for six years, he is bound to relinquish duties after five years. Thomas Aquinas famously said that everything under providence is measured and regulated by eternal law and those of the individual who participates in it by natural law; not that these two are different laws but the universal and particular aspect of one and the same law. Aquinas therefore ascribes primacy to natural law which espouses doing good and doing the right thing; avoiding evil and bad actions. Natural law exponents say that all human laws must be morally justified. The Western tradition of jurisprudence has shown an inclination toward natural law using the argument that human law is either just or unjust or good or bad. St Paul in his letters to the Romans said that laws should be “written on the heart”.
H.L.A Hart – a highly admired exponent of jurisprudence – who supports legal positivism, recognizes that there are two types laws: primary laws and secondary laws. These two categories exist in what Hart called a “core” and a “penumbra” where at the core are primary laws which imposed a duty on humans. Examples are speeding laws; laws prohibiting trespass. At the penumbra are secondary laws where humans could use the primary laws to enact their own different laws. Hart called them laws that bestowed power and explained further: “[U]nder rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. Rules of the first type impose duties; rules of the second type confer powers, public or private”.
The question at issue for the President would be whether he has a moral obligation to follow the law. In other words, does human law trump morality? Ronald Dworkin, a respected exponent of jurisprudence, has opined that law and morality are contingent and that legal positivism can only be linked to morality insofar as morality gives a certain legitimacy to legal propositions. Hugh Baxter, a legal commentator says: “Morality, even for “inclusive” positivism, is relevant in determining the law on a given point only if a social rule, such as Hart’s rule of recognition, ultimately so specifies. This rule of recognition is a social rule, accepted “as a matter of custom and practice”.
The 18th Century German philosopher Immanuel Kant based his philosophy on human dignity and opined that how we judge the right thing to do does not depend on consequentialism as propounded by the English philosopher Jeremy Bentham who followed the view that the rightness of our actions depends on the maximum happiness of the maximum number of people, but rather on what Kant called the “categorical imperative”. Kant’s categorical imperative carries the philosophy that one must act as others might act towards one.
Kant was of the view that one should act categorically and not consequentially. To explain this rather high sounding principle, I would say that the moral worth of the acts of anyone must be unconditionally and universally acceptable as being for the good of the people governed. Michael Sandel, one of the most popular professors at Harvard Law School who teaches a course simply called Justice, in his book, Justice: What’s The Right Thing To Do? cites the example of a shopkeeper who sells an item from his shop to an intellectually challenged person. The shopkeeper knows that he can give his disadvantaged customer the wrong change and make a huge profit. But then he desists, and gives the correct change on the basis that, if the fact that he overcharged his customer gets out, he would lose business. Professor Sandel argues that the shopkeeper in this instance did the right thing, but for the wrong reason. The right reason would have been that the correct change was given because the shopkeeper acted autonomously, i.e. according to a law that he gives himself, that requires him to be a good person universally, who respects the dignity of the other person without discrimination.
With all these interpretive and seemingly lofty philosophy, one is assured that the President will take the right decision. President Obama, in his book Audacity of Hope said that we work to achieve and retain here things: a sense of purpose; a sense of direction; and a sense of dignity. Martin Luther King Jr. said that one’s worth is measured by three things: dignity; achievements and joy, beauty and justice taken together. I would add a fourth: integrity, which is doing the right thing even if no one is watching.