- Religion and Philosophy
The role of religion, morality, law, order and justice in solving the problems in today's society
Religion, morality, law, order and justice have an affinity with one another and pervade today's society. They govern people from all walks of life and play a major role in solving the problems in today's society.
What is religion? Collins dictionary defines it as a belief in, worship of, or obedience to a supernatural power or powers considered to be divined or to have control of human destiny. It is also defined as any formal or institutionalized expression of such belief. It is also defined as of overwhelming importance to a person. Last but not least, it is defined as the practice of sacred ritual observances.
All these definitions fit the description of no other but God. So God is central in all these activities. God is good, all the time. All the time, God is good. Because religion is about the worship of God, and God is good, so religion teaches us to be good. Then, why do we see so much conflict between different sects of religion, for instance, protestant and Catholics in England and Ireland? Isn't religion supposed to unite men? The problem does not lie tin God, the problem lies in us because we are sinful in nature, having inherited the original sin of Adam and Eve.
Nevertheless, religion plays a major role in today's society. To cite an example—Christianity—the believers who truly believe in Lord Jesus Christ and obey His commandment of love, would love others and do good, thereby causing less problems in today's society. Most important of all, Christians believe that we would have eternal lives. In the gospel of John 3:16: For God so loves the world that He sent his only begotten Son to die for us so that whoever believes in Him shall not perish but has eternal life. So, this is a promise of God that we can hinge on.
Having talked about religion, now let us take a look at morality.
What is morality? It is defined as right conduct. Then, it begs a question: what is right conduct? Whose standard should we use? The standards of men? The majority of men? Or the minority of men? The standards of men, whether it is the majority or minority, could not be relied on and they would change with the passage of time. What was considered as taboo is no more so, for instances the legalization of gay marriage and abortion. So, if men's standards could not be relied on, whose standards should we rely on? It is none other than God's standards which are enshrined in the Ten Commandments.
Lord Jesus summed it up, love God with all your hearts, minds, souls and strengths and love your neighbors as you love yourself.
I have talked about the relationship between religion and morality. Then, what is the relationship between morality and law? Before dwelling on their relationship, let us take a look at the relationship between duty, rule and wrong. A rule is an interest or right recognized, protected and enforced by the Courts, it is a rule, the observance is duty, the non-observance is wrong.
So there are moral rules, the observance is moral duty and the non-observance is moral wrong. And there are legal rules, the observance is legal duty and the non-observance is legal wrong. On the one hand, there are moral rules, duties and wrongs but on the other hand, there are legal rules, duties and wrongs. So when do they coincide and when do they diverge? We could make an analogy—on the one hand, there is Circle A, which comprises of moral rules; on the other hand, there is Circle B, which comprises of legal rules. The area of their intersection (overlapping) is their coincidence and the area of their non-intersection is their divergence.
Circle A comprises of purely moral rules and moral rules that are also legal rules. Circle b comprises of purely legal rules and legal rules that are also moral rules. Example of pure moral rule is do not defame the dead and examples of moral rules that are also legal rules are do not murder, do not steal. Example of pure legal rule is pay your parking ticket and examples of legal rules that are also moral rules are do not murder, do not steal.
On the one hand, there are wrongs which are malum per se, on the other hand, malum prohibitu. The former is wrong that is obviously against morality and thee latter is wrong that is not against morality in itself but is made a wrong by law for its non-observance. So, wrongs of malum per se are the coincidence of moral and legal rules and wrongs of malum prohibitu are their divergencce.
Religion could make men who obey God's teaching to do good but for those who do not obey it, they would still do wrongs. In the same vein, morality could make men who obey it to do good but for those who do not obey it, they would still violate it.
Hence, there is a need for Law to step in.
What is Law? It is the rules of a country that govern its people. People obey it because it has a compulsion effect. Men have a tendency to sin and commit crimes but for the fear of the consequences of non-observance to Law, they observe the Law.
A distinct feature of Law is the Judiciary, where the judges hear cases, decide and impose sentence when an accused is convicted. If a judge imposes too lenient a sentence, it would not deter other would-be-offender but if he impose too heavy a sentence, it would be too harsh. Hence, it calls for sentencing principles.
There are two schools of thoughts for sentencing—Fundamentalist and Utilitarian. Fundamentalist believes the purpose of punishment is retribution, an eye for eye, a tooth for tooth, so to speak. The Utilitarian believes that sentencing should be of use. Hence, it professes the purposes of punishment as deterrence, reformation and incarceration for habitual and hardcore offenders. A judge imposes a deterrent sentence to deter other would-be-offender. He imposes a rehabilitation order for drug addicts so that they would reform. He imposes a long-period of imprisonment for a habitual offender in order to incarcerate him from the society.
A judge would also considers various factors and tries to strike a balance between these various factors.
First offender and habitual offender. First offender is normally given some leniency and habitual offender is normally given a heavier sentence.
Pleading guilty and pleading not guilty. An offender who pleads guilty would be given some discount in sentencing than when he pleads not guilty and found to be guilty.
The gravity of the offense. If the crime is a serious crime, the judge would impose heavier sentence. If it is not so serious, the judge would impose a lenient sentence.
The frequency of the offense. If the offense is getting rampant and on the rise, the judge would impose a heavier sentence.
The public interest. The judge would take into account of the public interest and would only impose a custodial sentence if it is in the public interest and would not impose a custodial sentence if it is not in the pubic interest. Custodial sentence would be a last resort.
What is order? Order is a peaceful and harmonious condition of society. It is often mentioned with Law and called as Law and Order which means there is the supremacy of Law and peace and harmony that come with it.
How to maintain Law and Order?
Firstly, there are the Armed Forces that would defend a country from foreign aggression so that there would be peace and stability. Without a strong Armed Forces, the country would be in a vulnerable condition and may be toppled by foreign aggression or internal threats. If this happens, there would not be stability and economics and development would be at a standstill.
Secondly, there is the Police Force that maintain peace and harmony. The Police is responsible for detecting crimes, making arrests, preventing crimes and bringing the offenders to the court to be charged.
Thirdly, with a good judiciary that is fair and effective, it would reinforce Law and Order.
I have touched on the relationship between Law and Order. Then, what is their relationship with religion and morality? Religion teaches us to be good and refrain from sinning and committing crime. It is when we obey this teaching to do good, then, there would be Law and Order, In the same vein, morality teaches us to do good and not to violate it. When there is observance of morality that are malum per se, then there would be Law and Order.
Justice is very important. God likes justice. There is a concept of justice from God. The parable of the talents. One day, a master is about to go away. He gives his servants each, five talents, two talents and one talents according to their abilities. The servant with five talents uses the five talents to earn five talents. The servant with the two talents uses the two talents to earn two talents. The servant with one talent dig a hole and put the one talent in the hole. When the master returns, the servant with the five talents tells the master that he has used the five talents to earn another five talents. The master says: “Good and faithful servant, you have been faithful in a few things, come and sit in my feast.” The servant with the two talents tells the master that he has used the two talents to earn another two talents. The master says, “Good and faithful servant, you have been faithful in a few things, come and sit in my feast.” The servant with the one talent says, “Master, I know you are a strict master so I put the one talent in the hole. This is the one talent.” The master says, “You wicked servant. You know that I am strict. You should at least put the talent in a bank to earn interest.” The master snatches the one talent and says, “Do not come into my feast, stay outside and be gnashing of teeth.”
So, there is a concept of justice of God. The servants with five talents and two talents receive the same praise from the master. In this parable, the master refers to God, ho gives the same praise to the two servants who earn more money according to their abilities. The servant who earns more gets the same praise as the servant who earns less. Hence, God judges us with our faithfulness and obedience.
Justice also prohibits unjust enrichment. It coincides with God's teaching not to steal. A person who obtains unjust enrichment is tantamount to stealing and God prohibits it.
There are four concepts of justice in the English Legal System.
Like cases to be treated alike. This concept was introduced by Aristotle and being absorbed by the English Legal System. According to this concept, similar cases in different courts or same court should be similarly dealt with. Hence, injustice would arise if different court or the same court deal with similar case differently. Arising from this concept, there is a doctrine of judicial precedence.
There is a hierarchy in the courts. At the apex is the House of Lords, next, thee Court of Appeal, next, High Court and the lowest in the rung, the Magistrates' Courts. So, the decision of the higher court is binding on the lower court.
There is a distinction between ratio decidendi and obiter dicta. The former is the true reason for the judgment and is binding. The latter is something said as an illustration, not the true reason for the judgment and is not binding.
It is noted that the doctrine of judicial precedence is rigid and could be a fetter on the judge trying to deviate from the precedent in order to administer justice in a particular case. So, a judge who does not want to follow the precedent circumvents it by distinguishing the present case with the precedent and arrives at a different decision.
The second concept of justice is the right law should be applied to judge the case, failure of which, would result in injustice. A citizen has the right for his case to be judged by the right law.
The third concept of justice is the law used should be moral. If the law is not moral and the judge applies it to judge the case, it would be a miscarriage of justice according to this concept.
The fourth concept of justice is that irrespective of what our means are, everybody should be able to get recourse from the law. Hence, if the court system is only for the rich, it would be injustice for it is only justice for the rich and not the poor.
Hence, arose Legal aid system. If a person is of limited income and has a good case, he would be entitled to legal aid and be charged a much lesser legal fee.
Another distinct feature of the English Legal System is the Legislature, which is the Parliament. The Legislature enacts the law for the Judiciary to interpret. As society develops, some laws would become obsolete and changed.
For instance, the evolution of Equity. Equity was initially not part of the English Legal System. In the medieval time, the English Legal System operated by way of the writ system. To sue a person, there should be sample writ. If there was no sample writ, the common law court would not hear the case and would not give remedies. When being denied recourse, the people petitioned to the king, who passed the case to his adviser, the Lord Chancellor, who heard the cases based on Equity, which entailed fairness. A plaintiff must come with clean hands, only then would he get justice. So, the Chancellor gave remedies that are at variance to the common law court and there was friction between them.
This conflict reached its peak in the Earl of Oxford case, where the plaintiff obtained a judgment from Chief Justice Edward Coke of the common law court and the defendant petitioned to King James who passed the case to Lord Chancellor Ellesmere, who issued an injunction to prohibit the plaintiff from executing the judgment. This angered Chief Justice Edward Coke and he wrote to King James to cite Lord Chancellor Ellesmere for contempt by invoking the Penuire Law.
It is interesting to note how Penuire Law was being introduced. In the medieval time, the church was very powerful. Judge Lord Acton said, “Power teds corrupt, absolute power corrupts absolutely.” This can't be truer. There was a bishop who was very corrupted. And there was a wealthy man who gave a lot of money as tithe and charity. One day, his child passed away. The bishop demanded him to give offering. In the moment of grief, the wealthy man refused to give the offering. The Bishop instructed a church watchman to kidnap and kill the wealthy man. This caused a public anger, who demanded for the watchman to be handed over to be charged. The Bishop refused to hand over the watchman as he said that the watchman was a church staff and should not be dealt with by the Ecclesial court. So the Parliament enacted the Penuire Law that when a church personnel committed a crime against the law of the land, he should be dealt with by the court of the land and not the Ecclesial Court, failing to comply with would be a ground for contempt of court. Hence, the Bishop handed over the watchman.
In a similar vein, Chief Justice Edward Coke asked King James to invoke the Penuire Law to cite Lord Chancellor Ellesmere for contempt of court as the Chancery Court was not part of the common law court system.
King James passed the case to Attorney General Francis Bacon who formed a commission of three persons to deliberate on this matter. Finally, the Judicature Act, 1873-1875 was enacted. It defined the Supreme Court to be composed of the Court of Appeal and the High Court. It also recommended that when there was a conflict between common law and Equity, Equity shall prevail. It also allowed the common law court to grant equitable remedies.
Examples of equitable remedies are: injunction, specific performance, estoppel, mandamus, cetiorari.
Injunction is an order of the Court to prohibit a person from doing a certain thing. It is further classified as Mareva Injunction and Anton Piller Injunction. The former is an order to prevent a person from disposing of his properties and dissipating his money. The latter is an order to prevent a person of destroying documents and order for discovery of documents.
Specific performance is an order forcing an individual to do a certain act.
Estoppel is an order to prevent a person from not honoring his promise.
Mandamus is an order to force a public body to do a certain act.
Cetiorari is a decision of a court to quash the decision of a lower court.
Many new laws were introduced as time goes by.
Part and parcel of the English Legal System is natural justice, which has three facets.
Firstly, “audi alteram partem”, which means “hear the other party.” So, a judge should not only hear the prosecution witnesses but also the defendant in a criminal case. In a civil suit, the judge should not only hear the plaintiff but also the defendant.
Secondly, an accused has a right for him to understand the charge and the penalty. If he does not but pleads guilty, he could later appeal for his conviction and sentence to be quashed. If he pleds not guilty, he is entitled to know who the prosecution is going to call in advance and not spring surprise witness.
Thirdly, the judge presiding the case should not have a vested interest in the case.
Breaching of any of these natural justice could be a ground for a trial de novo, which is retrial.
So, justice is a distinct feature of any legal system. If it is unfair, it would cause dissatisfaction and challenge to the system and lessen the public confidence in it.
There are inter-relationships in religion, morality, law, order and justice in today's society. They affect people of all strata and hence, are pivotal in the solving of the problems of today's society.