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December 24, 2004
Before we can determine whether a law is 'good' or not we need to undergo a basic study of jurisprudence. This must be done in order to fit a working definition of a law for the purpose of this discussion. This study of jurisprudence would give us a clear understanding of what a law is, would give us an idea of the origins of the law and would give us an appreciation of how and why the law was applied to human society.
There are many definitions of law. According to the American Heritage Dictionary of the English Language, a law is a rule of conduct or procedure established by custom, agreement, or authority. It further goes on to state that this established body of rules and principles govern the affairs of a society and are enforced by a political authority or a legal system.
However, the most accurate description of law can be gained from the observance of set patterns in the universe sometimes described as natural law. According to natural law theory, a law is a fundamental truth that governs the order and pattern of life in the cosmos. Anything going against such a faultless pattern is 'unlawful' and can create much disorder and chaos in the universe. Thus, laws that were observed in nature were applied to the administration of human society for its perpetual betterment. These laws were later documented and arbitrators were selected from the society to operate the system. However, not all laws that are encoded in the statute books are 'good' or 'right'. This is a wrong assumption that many make. Some laws, rather than maintaining order, manifest divisiveness and sorrow, which can destroy a society or individuals contained in that society. This goes against the very idea of the law which is ultimately for the preservation and longevity of society. Any law that goes against such a principle isn't really a 'law' even though it may be deemed legal.
This brings us to the question of morality, which should be the basis of law. The definition of 'morality' has been soiled by many so-called religious guidelines although they may possess little truths. Morality has to do with conduct. Usually, moral conduct is displayed in words and actions. Honesty, integrity and the development of positive character are some of the underlying principles of morality or moral conduct. Thus, the letter of the law should have a similar precept in mind. The survival and further evolution of humanity can only be achieved if all attain this basic level of good conduct and this must be echoed by the law. It is only then that society could positively progress.
A law should be fair to all members of the society. There should be no bias in the law, subtle or conspicuous, in order that its operation be truly effective. However, due to the fact that inequities exist and that humanity is divided along social, economic, political and cultural lines, many laws tend to be partial and favour some more than others. If a law is to be just, it must put aside such differences for proper administration. All who break laws should face the same penalties regardless of their social standing, their political beliefs or their religious outlook.
In actuality, this does not necessarily happen. Criminal laws, for example, punish what is deemed 'blue collar' criminal activity with stiffer penalties than 'white collar' crimes. Because of the economic position of the majority black population in Trinidad and Tobago, for example, they are more predisposed to be involved in petty thefts, drug selling and gang killings. On the other hand the upper classes and members of the political arena would more likely be involved with or caught engaging in crimes such as stealing from their businesses or the public purse in the case of politicians. Such crimes are not easily detectable and law enforcement agencies refuse to put out more effort when dealing with crimes committed by business people. These crimes extend over time, are rarely prosecuted and white-collar offenders are seldom convicted. However, both types of crime affect the country negatively and stringent punishments should be given to all who break laws. Stricter punishment should be set for 'white-collar' crimes, as these types of crime cause large-scale financial damage which affects the society at large. In other cases, the affluent who do commit heinous crimes get away with it. They have the ability to buy their way out of trouble and therefore escape the brunt of the law. If a law were a 'good' law then it would ensure that there was no room for discrepancies in the system and that none should escape the long arm of the law.
A 'good' law must also be relevant to the society in which it is administered. In Trinidad and Tobago, most laws are based on the customs of the British. Thus, the moral principles of most laws governing the twin-island state are Christian in nature, and cater for an essentially ethnically and culturally homogeneous British society. In this regard, large portions of the society are bound to laws that do not cater for their differences. To further exacerbate this situation, laws also exist in Trinidad and Tobago that were created for the ruling of slaves during the epoch of enslavement. These so-called 'laws' have no relevance in today's society and should therefore be eliminated. Laws that existed in those times, such as land laws and laws relating to the punishment of slaves cannot apply to descendants today.
Because of the dominance of laws that were created for a Christian population, even Trinidad and Tobago's national symbols are essentially Christian in nature. Christian symbols in a country where a sizable proportion of its members are not Christian is not very sensible and is not fair to these other people who are of different religious persuasions. A Hindu-based religious body, the Maha Sabha and an aligned Islamic ally are campaigning against the existence of the Trinity Cross. They contend that the Christian symbol is unrepresentative of the population as a whole, and should not be used as a national award as it constitutes a religious bias. Thus, they have sought a High Court declaration stating that the Trinity Cross entails a denial of the constitutional rights of non-Christians. Clearly, some laws that exist are irrelevant and cause unnecessary conflict between and among citizens. 'Good' laws would take into consideration the purpose of laws, their relevance, and if they should remain enshrined in statute.
Further, a 'good' law should be unambiguous. People, regardless of their social standing, should have a clear understanding as to what a law necessitates. It must be worded as simply as possible, it must avoid double meanings, and it must be explained elaborately if necessary. The true intention of the law must be evident and easily construed. In many cases, arbitrators of law have misjudged the true meaning of a law and bad judgments resulted. For example, in Trinidad, there existed a law that forbade the cutting of 'trees' along riverbanks. However, the draftsman erred when constructing this law. He meant to state that bamboos were not to be cut, but he supposed that bamboos were trees, which is inaccurate. Thus when someone was brought to court for cutting bamboos, he was released as the law did not forbid the cutting of grass along the riverbed.
Another example of this is the Retrenchment and Severance Benefits Act concerning the bankruptcy of businesses. Usually when a company declares bankruptcy, payment is given to members of that company. Creditors are the first to receive payment and workers are the last to be considered. The payment hierarchy is this: the creditors of fixed charges are paid first, then the creditors of floating charges, then the workers. Usually, all the money would be distributed between the first two groups and workers suffer from no pay. The government decided to pass a law to protect the entitlement of the worker and so the order of payment was to be inverted or reversed. The last group was then supposed to receive payment before the second. However, the draftsman forgot that when a company becomes bankrupt, all credit floating becomes fixed. Thus, in actuality there were no longer three but two groups to be considered and the workers remained the latter group. Thus, the entire outcome of the ruling could have been different if the architect of that particular law had been more accurate in wording it. This case proves that the theory of the "perfectibility of the draftsman" is indeed a fallacy. It also proves that the lettering of a law should be clear-cut and the meaning should be precise so that the law could function to benefit all.
A law should not offend members of a society or cause unnecessary distress to its members. A law should, as best as possible, be constructed in such a way that none in society feel hurt or threatened by the law. Laws against coloured citizens were established in Trinidad after the British ceded the island from Spain. These laws were highly offensive and demeaning. For example, the law stipulated that coloureds were not to be addressed with titles, they were to sit at the back of churches, and they were to submit to the idea that they were inferior to the whites. In addition, another section of the Trinidad population was subjected to discrimination by the law. The enslaved African people were subjected to more inhuman treatment than the coloureds. Laws existed stating that they were innately subhuman and should have remained that way. However, after emancipation, all were recognized as citizens of the state. Citizens deserve equal treatment under the law and thus should not be subjected to unjustifiable cruelties. Thus, even though racism and other horrors existed in the society, they had to be erased from the constitutional laws of the island. In this regard, laws should serve to ensure the happiness of all in society and should not offend any of the citizenry.
If a law is to be described as 'good' it must respect democracy. As long as there is no threat to life or other freedoms guaranteed by the constitution, laws should not be restrictive and should respect people's right to privacy. The law must respect people's right to be different and must not infringe on people's rights to express themselves however they see fit. For example, laws in Britain proved to be restrictive as they prevented people from expressing publicly their sexual orientation. Thus, there was much controversy over the rights of homosexuals and prostitutes in Britain. However, legislation was made available to respect people's rights to express themselves how they saw fit. In this regard, the Wolfenden Report promulgated that prostitution and homosexuality should be legalized from age twenty-one. This is a good example of a law recognizing the rights of human expression and respecting democracy for the good of all citizens. Another example is in Sweden where there was a chronology of laws permitting the creation of a gender neutral cohabitation act, giving the same rights and legal responsibilities to same-sex and opposite-sex cohabiting couples in 2003.
As long as the life of the society is not in jeopardy, people should be given the right to develop according to their own terms. A 'good' law respects democracy. The majority of members in a society should agree, in most cases with the given law. In other words, the law should capture the spirit of the people before it is made legal. This is referred to as "consensus morality". These laws should especially pertain to the way a society chooses to have its systems of administration run or other important matters of the state. A small minority should not create the laws governing a society.
However, in other cases, laws must be created that may run counter to the "consensus morality" of the population. This is as long as such an arrangement does not infringe on another's life. HIV/AIDS victims in the workplace were usually discriminated against and sometimes dismissed. The "consensus morality", especially during the first appearance of HIV/AIDS, was to keep its victims isolated from society; many still feel this way largely because of their ignorance. However, laws were created to curb the discrimination of HIV/AIDS victims in the workplace as long as they were able to make a contribution to their respective occupations. In this regard, although society should be in agreement with the laws of a country, it is sometimes necessary to go against the general consensus so that other members of the society could enjoy their rights as well.
A law should also be easily enforced in order that it is effective in its purpose. Many laws are created that are largely ignored by the citizenry. This is because the penalties attached to that law may not be harsh enough or that people could afford to pay fines incurred or temporary prohibitions if given. Other laws are broken because deviants usually get away with their misdemeanors. An example of this is the laws and treaties regulating trash in the seas. The Cartegena Convention in 1987 came into being for the protection and development of the marine environment, which later extended to the wider Caribbean. These laws dealt with ocean dumping and established international guidelines for the stoppage of the transport of hazardous material, sewage disposal, plastic and garbage disposal and pollution. However, the laws created proved ineffective because, in reality, no one was there to monitor such activities infinitely. Ships carrying toxins and other waste materials still passed through waters illegally and governments, especially in the peripheral Third world countries could not do a thing to bring such illegalities to a halt. If a law proves ineffective and is not enforced, then it has failed in its purpose. This does not mean to say that it should be done away with, but sufficient provision should be made in order that it is properly enforced.
The law must cater for the different reactions of different people. In criminal law, for example, once a crime is committed people are given a particular sentence. However, the law should consider that different people commit crimes for different reasons and that all responses are not the same. A good illustration of this is the Law of Provocation, which stipulates that if a person was provoked to murder, the charge would be reduced to manslaughter. However, it must be proven that the person acted right away. This law did not take into consideration the different response of females who tend to react to anger after a prolonged period of pent up frustration. Thus, the law needs to take into account the different responses of individuals in society and legislate to suit.
All laws should also be subject to amendment. Given some of the examples listed above, we have observed that some laws may be irrelevant to society, may infringe on the rights of citizens or may be nonsensical. Thus laws must be subject to change if they are likely to stunt society's growth and development. We have observed that many laws were reformed to include things that may have been omitted when fault was found with the law. This in itself can help to maintain the peace of a society. For example, on August 28, 1963, in the United States of America, the March on Washington for Jobs and Freedom took place in Washington, D.C., and was attended by some 250,000 people. It caused much alarm because it was the largest demonstration ever witnessed in the nation's capital, and was given extensive television coverage. Thus, legislation had to be put forth to at least appease the population to maintain peace in the country. Many anticipated that if their demands were not met, that the violence would have escalated. The radical movements in the 1970's were testimony to such premonitions. Thus, in order to better society, many laws had to be amended. The longevity and balance of societies depend on it.
In the final analysis, there are many factors that must be taken into consideration in order that a law be deemed 'good'. The law must be fair to all members of society, it must be unambiguous, it must be accessible to all, it must be eradicated or amended if outdated and it must be properly enforced. It must also take into account the different responses of different people and must ultimately allow for the society's progress for this is the very purpose of the law. If a law fails to accomplish these things then it has failed in its purpose. A 'good' law is not the easiest thing to construct but once it has taken into account the aforementioned, then it is fitting for society's use and further development.