Demystifying the law: Some thoughts!

I believe we all, as mortals, get captivated by the law at some stage of our lives. The law comes into our homes, our relationships, friendships and acquaintances. We all sometimes dream about a way of interpreting the law.

THE human search for an all-embracing definition of the law has been evident in all communities of man (as adamah) and has been a subject of debate for most, if not all people in such communities - both those trained in the vagaries of the law, and those untrained but are in many ways affected and fascinated by the law.

“Please leave the law at your office and come home as a father or a husband, a wife or a daughter, a friend and a neighbour,” are some of the concerns that have been raised to lawyers by their kith and kin, siblings, spouses and parents. Here and there, those who are in conflict with the law would be told that the “ignorance of the law is no defence”.

We read in newspapers, or listen to other media platforms such as radio and televisions, that a criminal suspect, is “assisting the police with investigations”.

The truth is that he is the subject of the investigation.

We read that he has been sentenced to life imprisonment. We ordinarily think this means he should die in prison.

A caring person who loves birds comes across a strange bird that is terribly in pain, and his conscience tells him, “take it home, dress its wounds!”

A police officer, constitutionally obliged to maintain law and order, meets the caregiver, arrests him and takes him to court - mandatory nineyear sentence is imposed because the bird is a protected species.

Those who have had lawsuits understand that lawsuits have been likened to pigs - you go into them fat, but may come from there very thin. The reverse also holds like a fortified city. No wonder why Paul discouraged lawsuits amongst believers - those bound under deific laws.

Even Jesus instructed those who are accused to negotiate with their accuser on the way to court, lest they be put to a magistrate, and be thrown to a prison. The art of negotiation has been mastered by many - traditionally and legally. Certain rules of negotiation are adopted.

Traditionally, there are laws that are expressed by such phrases like “strike not the messenger”, typically describing the fact that the messenger is only a bringer of news, and those who are offended with the news must deal with the giver of the message.

At times rules have been bent to allow certain ends to be met.

People are very careful to avoid the fact that they would have disobeyed the law.

You may have heard that: “Don’t break the law, bend the rules!”

Someone is simply trying to warn you not to be in conflict with the law, and the consequences that the law is likely going to use to deal with your conduct.

Even, in biblical parlance, and in salvific argumentation, Jesus Christ is interpreted as the son of a sovereign God who had come to fulfil the divine law and save mankind from their sins. He, however, requires of mortals to believe in him so that they get to be saved under divine law.

Essentially, as part of the purpose of divine law in Christian circles, the point may be made that the Son (child to be gender accurate) of God who became the son (child) of man so that the sons (children) of men would become the sons (children) of God.

Proponents of divine law such as St Thomas Aquinas even went as far as teaching humans who consider religion as part of opium aspects to separate human rationalism from divine revelation.

Other exponents of divine law like St Augustine even used divine law to explain how humans can fight in just wars.

His just war theory has led to the emergence of laws or rules on war such as jus in bello and jus ad bello.

Belligerents in a war situation cannot use certain weapons. They are not allowed to attack certain people, even though they are part of the warring parties: prisoners of war, and the wounded.

St Augustine’s just war theory can be buttressed by examples from the Bible.

At one time Elisha the prophet was about to be captured by enemy soldiers. He blinded the whole army. The king, using hindsight from holy wars, where in war situations, the loot was supposed to be destroyed, asked the prophet what had to become of the soldiers.

Elisha told the king to give them food, and send them back to their king. Isn’t this fascinating? This is Elisha who was taunted by young boys and a bear mauled three dozens and a half of them.

This is Elisha who saw an invisible army which Gehaz his servant had to be prayed for to see a multitude of horses ready to fight on their behalf.

This is the same Elisha who, in his seventh miracle performed in death, a soldier is thrown into a cave.

When the dead body met Elisha’s bones, life was restored immediately. Imagine the fear and happiness that simultaneously gripped the “dead” soldier’s colleagues!

Their colleague, who was dead and forsaken, was behind them, rejoining them in battle. Yet Elisha allows enemy soldiers to go away and to continue threatening Israel’s sovereignty.

Wasn’t that the work of divine law legends?

John Austin would, like other positivist thinkers, see law as nothing other than the commands of a sovereign which must be obeyed, failure which punishments must be imposed.

Positivists argue that law is “what it is”, good or bad. They are not worried about the “ought” or “should be” of the law as is the case with utilitarian thinkers.

Positivists see the law as meant to maximise pain and minimise pleasure.

Utilitarian thinkers see the law as meant to minimise pain and maximise pleasure. Legal realists will say the law is stable, yet it cannot stand still. It must be reformed and must conform to reasonable standards in a democratic society.

An unjust law to a positivist, for instance, remains law if that law hasn’t been challenged.

The challenge could be on the basis that it is at variance with the Constitution if that it is not reasonable in a democratic society.

The positivist thought, however, influences the realist to have the law reformed so that even the views of the utilitarian believer will also be considered.

I believe we all, as mortals, get captivated by the law at some stage of our lives. The law comes into our homes, our relationships, friendships and acquaintances. We all sometimes dream about a way of interpreting the law.

We engage severely in sparkling conversations on several matters of the law: family laws, trust laws, property laws, religious laws and even the supreme law - the Constitution. And we know the conversations and opinions are never going to end.

Happily, or not, people will think marital rape is unjust - lobola (roora) or bride price has been paid.

Date rape is unjust - there is problem of interpreting consent in heterosexual relationships.

Theft by necessity must be a valid defence - some people do not want to share the little they have.

In ticket cases, the commuter omnibus driver receives money from a passenger. The passengers gives the driver or the conductor some money to be taken from point A to B. Before they reach the intended destination, the passenger receives some message from a relative. He does not want to pay and wants to be left alone.

More tellingly, the commuter omnibus has just left a terminus. It’s peak hour.

A few metres from the terminus, the passenger realises that she has left some valuables at the terminus.

She wants to drop off.