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Forwarded by: DAVID ASONYE IHENACHO

BOOK REVIEW:
PHILOSOPHY IN POLITICS, LAW AND DEMOCRACY

Cover

Reviewer:
Rev. Dr. Matthew I. Nwoko
Rector of Ludwig-Windhort-Haus, Catholic Academy Lingen, Germany

hilosophy in Politics, Law and Democracy is an arduous work. It entails a meticulous search and radical consideration of both the differentiating and uniting elements between Law and Morality. Perhaps there has never been such a questioning ground for the modern civilization in the practical life as the issue of conforming Law to Morality and: vice-versa. The perennial divide between the tendency of legitimizing action and practical judgment through inner moral conscience on one hand, and that of legal approval through legal injunctions on the other hand, remains an obstacle to the march of civilization and the development of lasting polity. To bridge the two areas needs a critical understanding of the areas and founded proficient philosophical scholarship of the sort from Francis 0. C. Njoku.

It is a notable contribution of this work in pointing out a special meeting point between Law and Morality in securing the common good. The common good could be considered as a point of reference in the judgment of the operations of Law and Morality, of course not without acknowledging the lack of unanimity in the nature and meaning of the common good. Njoku assiduously weaves into the general understanding of the common good the realization of full humanity through society as a goal. Man is from his nature predisposed to seek his full realization in the society. Society in turn derives its rationality and order in the nature of man. Although this appears self-evident, there appears to be the constant necessity of inner and external ordinance that guide him individually and collectively towards the achievement of his full humanity. Francis Njoku subjects the leading views on Morality and Law to concrete response by adopting a transparent meaning of common good as "the end of the co-operation of all members or the end for which society exists, an end that the temporal welfare for the community taken both collectively and distributively." By linking up the search of full humanity with the issues of personality, responsibility and personal activity of man, Njoku confronts the individual and collective persons with the demands of Morality and Law and the relation between them in human living.

Common good, seen as a horizon of co-operative search for and the sharing of authentic human values towards the achievement of full humanity, and not merely the sharing of material wealth, invokes the coercive power of Law, that regulates members, so that things do not succumb to the whims of free will. So we need the legal system among other institutions in order to realize the common good. Njoku's application here is an impulse that makes a more comprehensive interpretation in study of the common possible.

But it must be noted that the invocation of Law in the protection of the common good will never be sufficient and at times may not apply. There are instances where the insistence on Positive Law may jeopardize the realization of the common good. I dare to refer to the issue of 'prerogatives beyond the Law" noted in my presentation of Locke's political theory: "Salus populi suprema lex" -- the welfare of the people should be the supreme law (Basic World Political Theories, 1988). And since there could be cases where the welfare of the people is not provided for by the laws, it is expedient that the laws give way to the executive power, in order that the good of the people be procured. Examples of such cases are those of reward, pardon, mitigation of legal severity, leniency etc. This consists in what Locke calls prerogative, "to act according to discretion for public good, without the prescription of law, and sometimes even against it." "But the power of prerogative must be used for the good of the people, otherwise the people can demand for the definition of prerogatives by laws." (Matthew Nwoko, Basic World Political Theories, 1988, 88).

On another level, one could argue that the entire application of prerogatives operating within a legitimately constituted executive enters already into the legal framework. But such an argument holds if we expand the definition of Law beyond direct legislation. By citing Messner's enumeration of other institutions that help to secure the common good, Njoku appears to concede our view that the invocation of Law in the protection of the common good will not be sufficient (Ch. 5).

In relation to institutions serving the common good, Francis Njoku raises a smoldering argument: "the conviction that only the attainment of a fuller and richer personality of the members of society constitutes real social progress, not the perfection of the institutional apparatus as such." (Ch. 5). It appears obvious that an institutional apparatus could only tend towards perfection if the members of the society themselves attain a fuller and richer personality. The fashioning of functional institutional machinery detached from the life of the people themselves might be only imaginary. Let us dare to particularize with the legislative institution: It might be illusory to think of a functional legislative system if the legislators themselves are lacking in rich and full' personality. And if they are lacking in 'rich and full' personality, the society that produced them might not be better. On the other hand, there could be a risk of deceptive institutional machinery. It cannot be perfect even if it is functional. It may appear so, for instance, the dictatorial institutional machinery.

Back to the direct relationship between Law and Morality, Njoku calls both normative disciplines. They have something in common in that both attempt to prescribe and control behavior in a certain direction. Both are types of social phenomena (cf. Hart). That means, without the society both Law and Morality would be irrelevant. But the basic question is how to conceive their relationship. The Benthamite-Austinian theory of separation and Kelsen pure theory of Law, that see no necessary relationship between the two social orders, appear to be punctured by Njoku's appeal to and analysis of the "extra-legal sources" which might include the horizon of Morality and others. (Religion may also not be out of place here). The invocation of Harts judicial discretion serves to affirm the involvement of Morality within the legal order itself. This calls back to mind our previous argument through Locke's prerogatives theory. While a judge may be always intent on fair interpretation of the Law, it would be unnecessarily tasking if he pretends to preclude his moral sensibility or intuition. Even if Hart insists that deriving a legal obligation from moral obligation will be reductive, it must be pointed out that he appears to give up realism in favor of idealism. Then there is no possibility of human promotion of legality without Morality, if it has to be human venture and not a mechanical affair, like with robots.

I dare to suggest that the service of Law to the society is promotion of Morality. And if Morality is meant to serve for the judgment of the good, my suggestion is then not superfluous. Then the ultimate aim in the service of Law is the enhancement of the good of the social welfare. The elimination of Morality in the service of Law is a disservice in itself. The logic that fosters the credibility of Law at all is its moral acceptability. Morality actually bridges the gap between Natural Law and the Positive Law. Without plunging into the complexity of the natural-law-theory, it is adequate to refer to the conclusion of Marcus Tullius Cicero: all particular laws and rules (e.g. of the State) draw their genuineness from primal Law of Nature, otherwise they do not oblige (cf. Cicero, The Law, II, IV). Even if we accept the argument of Hart that a judge's moral intuition or conviction is not necessary in accounting for the validity of Law, it must be pointed out that such accounting for the Law does not begin at all without some moral intuition.

The extent of its importance (of the moral intuition) is another question. Hart could not avoid consenting to "the minimum content of Natural Law" (cf. Hart, 'Positivism and the Separation of Law and Moral').

Hart mentions the obvious by saying that Law and Morality should not extend their minimal protections and benefits. But his claim that the advancement of society necessitates the differentiation between Law and Morality needs a reconsideration. A modest judgement would argue that the advancement of civility of a society is reflected by how much its laws precipitate into moral standards, or how much its laws could be fused into its moral standards. The best law is that which could be written in the heart of the members of the society (cf. Deuteronomy. 6: 5-7). That is perhaps why Emerson argues: "The less government we have the better - the fewer laws, and the less confided power." (Emerson, Politics)

There is an element of escapism that fosters Hart's insistence on the separation of Law from Morality. His view that "a valid law is law whether it is bad or good, just or unjust... enacted law though it be morally iniquitous is still law" is an unnecessary exaggeration. Even if we acknowledge that the lack of quality does not nullify the validity of a law, we must also accept that the redundancy of such a law does not in any way mirror the advancement of social civility on which Hart bases his argument of separation of Law and Morality.

Without reducing legality to Morality, it is plausible to hold that, if Hart accepts that the authority and demands of law must in the end be submitted to a moral scrutiny (cf. The Concept of Law, 206), he must also concede to the inevitability of the link between Law and Morality. Njoku is vigilant enough to note that law should be separated from morals else people could take it for granted that everything sanctioned as legal is automatically moral. Is it not the other way round? Especially if we consider the sphere of Morality as having a broader rationality than legality, is it not more likely that the critical level in judging a law comes up well in its close link to Morality? It is often observed that in difficult cases the citizens are prone to fall back to the acquainted moral principles than any legislation that are alien to their social life or in any way questionable.

Turning to the classical philosophical tradition, it appears there are many arguments to uphold the plausibility of a necessary link between Law and Morality than the contrary. One could draw some insights from Njoku's presentation of the Platonic-Aristotelian Philosophy, which maintains that "laws are enacted to bring about the best moral life in the individual and the State (Ch. 13, # iii). Such classical Natural Law theorists, like Thomas Aquinas, in upholding the connection between what is good, what is morally right and just argue for a necessary link between Law and Morality. Both have their roots in Natural Law principles. By undermining the Natural Law principles as the higher principles of Morality a law negates its basis, since the aim of a law is to be good or just, to foster goodness and justice. If it does not foster the good and the just in the citizens, then it is no law. Hart's argument that an unjust law may still remain a law does not subsist, since the quidditas is lacking. One may grant that, in as much as a society and its legislators do not yet discover a law as 'unjust,' to that extent, it may still serve them as a just law till the evidence of its injustice is sufficiently illumined through the Natural Law. To discover a law as unjust has to do with genuinely revealing its injustice through measuring it up with the Natural Law and in a new light confirming its lack of justifiability. Granting that its validity subsists until official abrogation, a widely accepted consensus of its injustice or falsity negates its definition and therefore also its acceptability, since it is the same rationality that enacted it in the search for the transparency of the Natural Law that could rediscover it as unjust, not good, inapplicable and redundant. The time between the general consensus that a law lacks justifiability and the official abrogation by the legislators, one may refer to as the interim diabolis and it seems justifiable that citizens that are inflicted with the injustice of such a law should be remunerated.

To enforce a law that is widely detested, in the society, as "morally iniquitous" already questions the credibility and the democratic existence of the governing legislature. The aim of an electorate in raising up a legislative power is to serve it with just laws. No society elects its legislature for unjust laws. Only in dictatorships are unjust principles enforced.

Back to Hart's statement that an enacted law whether it is bad or good, just or unjust or morally iniquitous remains law. It provokes the tendency to mechanistic understanding of positive law. It may be very difficult not justify the independent consideration of laws outside the place of social beings for whom the laws are made, except one grants the status of mechanical automation to such social beings. Even if we are to go by the social contract theory, whereby the electorate are supposed to have given up their legislative power to a group of individuals (cf. Hobbes, Locke, etc.), the primary aim of establishing and upholding the state of civil society over and above the state of nature will be defeated. Perhaps it is not false to argue that the promulgation of an unjust law is a way of promoting the return to the Hobbesian state of nature. I acknowledge Hart's realism that appears to say that legality does not ipso facto conclude outright obedience, that moral scrutiny is required. But this moral scrutiny should itself be the basic order in the issuance of law. If laws are made in view of the social order, and since the social order has to do with the life of the humans as moral beings in the society, then the idea of legality cannot but imply morality, except for mechanistic laws that hardly involve the social and political order.

Without questioning the independence of legal sphere in a social organization, a radical separation of Law from Morality risks a depraving attitude in the citizenry. That legal statements in their obligation fall short of the intended moral obligation does not idealize the situation as normal like Hart tries to conclude. That a legal statement obliges me to perform an action which on close consideration does not convince me to undertake a moral obligation argues, if anything, for incompetence in legislation that distorts the expected inner harmony between Law and Morality, and may not argue for an ideal situation that necessitates Hart's generalization. Fuller is therefore not mistaken to insist that a meaningful Law must contain the "inner Morality" which are the principles of Natural Law (Lon. L. Fuller, The Morality of Law, 42-79). Fuller's eight criteria for inner morality of law reveal the basic thing: mind of legislator. And the mind of legislator has no other anchor except Morality. This mind of legislator I dare to interpret as the inner harmony between Law and Morality. Even if the legislator revives early tradition into law, the primordial morality that set up the tradition will only be re-invoked. This confirms that the primary purpose of a law is the fulfillment of moral requirements (cf. Fuller).

By way of conclusion one must give a credit to the mediating distinction made by Njoku between the conceptual separation or link between Law and Morality and the existential separation and contingent link between the two. On the one hand, this tip-toeing of a non-reductionist conception of the relationship between Law and Morality justifies itself as philosophical or conceptual base that supports Morality in its independent critique of Law. On another hand, Morality itself has broader base than Law that it may not need such a conceptual base that insists on a separation in order to protect it.

Other comments about the Book:

"This book is in a very special way pertinent to the
Nigerian situation because it relates to such universal issues as
freedom, rule of law, common good, reason and
authority, and so on, to the emergent democratic status of Nigeria."

Joseph Donatus Okoh, Ph.D
Professor of Philosophy and Education
Deputy Vice-Chancellor (Academic)
University of Port Harcourt, Nigeria.

"This book is a masterpiece of exposition of the good aim,
which puts together the structures available for mankind to
realize the good end and experience the fullness of his being."

Chief Magistrate V.V.M. Nkjoku ESQ.
L.L.B (NIG), B.L., L.L.M.

For copies send email to:

Francis O. C. Njoku
ocnjokufrank@yahoo.com
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