Mon | Sep 16, 2019

Orville Taylor | No justice, no peace

Published:Sunday | August 18, 2019 | 12:37 AM

Having the power to act is not the same as the right or the authority to do so. The test of any behaviour that involves another person must be whether such action, if carried out against you, would be acceptable to you.

This empathy, taking the place of the other, is the key to peace in society. It is such a simple formula that it oftentimes escapes well-thinking citizens, who truly want to make a difference. Indeed, this notion of empathy is actually the bedrock of a just justice system.

True, there is such a thing as a constitution, and there are statutes passed by legislators and judgments by courts peopled by individuals who are schooled in the practice of law. Interestingly, there is a legal norm that assumes that all persons understand the law equally and are equally liable to abide by its provisions. After all, there is the common catchphrase, ‘ignorance of the law is no excuse!’

Of course, what is ridiculous about this is that some of the very practitioners within the court system are quick to point out that non-specialists in the law do know enough to speak on it. And they are generally right. Nobody knows law like lawyers and judges.

Right and fair

However, it is not simply about knowing the law. It’s a matter of what is right and fair. Some actions are perfectly legal, and certain judicial decisions are correct and, thus, ‘good law’. Notwithstanding that, although perfectly lawful, the conduct is morally repugnant.

For example, if a 14-year-old girl in May 1988 felt like having sex with a shrivelled 80-year-old pastor in her parents’ house, it would’ve been perfectly legal, though disgusting. Even today, despite a child of 16 being able to give sexual consent, I am sure no one would think that her offering sexual favours to a senior judge outside of a court setting as appropriate, though legal.

In the old days, there was a course taught by a quaint lady called DuMaurier at UWI Cave Hill called ‘Law in Society’. Its content was not about the legality of stuff but how laws related to the larger social context. Social order is built on a notion of mutuality and reciprocity.

We, first of all, have to agree on not just what the content of the laws and rules is but, more important, we must agree that these rules and others are binding upon us and are to be followed. It is this social contract that Thomas Hobbes referred to when he wrote Leviathan in the mid-1600s.

It was the English Civil War, and he recognised that unless the Englishmen and women forged this kind of social contract and submitted to a larger legal authority, there would be ‘warre’. Here, there would be man against man and life would be “solitary, poore, nasty, brutish and short”. Jamaica is not that much different today because there is no underlying consensus regarding the dispensing of justice.

We have never created a social order in which the lower classes felt connected to the larger framework.

The practice of law must not simply be about navigating what the statutes and common law dictate. While that might be the basis for the general operations of the system, the question that must be always asked is, ‘While this is the legal thing to do, is it the right thing to do?’ What are the implications if I use the law or I push my or my client’s ‘interests’ or desires to the fullest extent?

Far too often, action is taken that is socially dysfunctional and even pathological but perfectly lawful. One might not know, for example, that if one is skilful and has a good lawyer or industrial relations specialist on his payroll, he can avoid paying certain benefits to which a worker would be entitled. It might not be known that in some cases, a worker might lose his entitlement to compensation under the law if he does not claim within a few months. On the other hand, the employer has no upper limit in which to pay. And no, you, the unscrupulous employer, will not get that information from this column. So go look elsewhere!

THE GOLDEN RULE OF JUSTICE

Justice, in the real sense, is about how one treats others vis-à-vis the standards that one expects binds us all. One does not have to know law in order to know if something is right or wrong. Ask yourself whether it would be all right if the same thing were done to your uncle, brother, mother, or you. If it fails that test, it is not just, whatever the laws or contract say.

In any event, as I did indicate in other columns, unjust legislatures cannot pass just laws or create a system that is just. This is not the rant of a mad sociologist. Rather, it is simple fact. There is a direct correlation between injustice in society and at the workplace and the level of growing violence here. We need to take sleep and mark death.

In the words of His Majesty Haile Selassie I, “Until there are no longer first-class and second-class citizens of any nation … the dream of lasting peace … will remain but a fleeting illusion, to be pursued but never attained. We are sitting on a time bomb. A wrath-filled bomb; a clock ticking.”

If unjust and immoral, law must not be used to defend folkways.

- Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.