Some Musings On How We Can Untangle Our Constitutional Knots: From the Letter of the Law and the Rule of Lawyers, to the Spirit of the Law and the Rule of Law
The present parliamentary impasse or political crisis that lay before us was bound to happen. Like most modern nations we are a constitutional democracy governed by the rule of law and not the rule of men, but in this unfolding drama, it appears that it is the rule of men that has gotten the upper hand. If our judiciary system was designed to interpret our laws within the context of the Constitution, and both the government and the opposition claim that what they are doing is within their legal and constitutional rights, how can this constitutional knot be untangled?
Is the present political quagmire a case of one or several politicians gone rogue and acting dishonourably? Have our parliamentary system degenerated from one that is guided by the rule of law to one that pays hommage to the rule of lawyers? Can a better understanding of the distinction between the letter of the law and the spirit of the law help us to untangle the mess within which we find ourselves? So much is at stake, not to mention our democracy, our social norms, our concepts of fairness and justice, and the dignity of our people.
So where do we begin?
First we need to explore the distinction between the spirit of the law and the letter of the law. According to the Wikipedia article, Letter and spirit of the law, “When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording….Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments…
…Gaming the system, also called “rules lawyering”, is the following of the letter (sometimes referred to as RaW or Rules as Written) over, or contrary to, the spirit (sometimes referred to as RaI or Rules as Intended) of the law. It is used negatively to describe the act of manipulating the rules to achieve a personal advantage. It may also mean acting in an antisocial, irritating manner while technically staying within the bounds of the rules.”
Does this sound familiar?
Another article I also found insightful was “The Spirit and Letter of the Law” by Dave Miller, Ph.D. Although the context of the distinction was religious in nature, what I found revealing is the opening salvo of the article on erroneous systems of belief: “All erroneous systems of belief share in common the fact that several “props” are necessary to support them. The fact that the belief system is false, necessarily implies that one or more of the props are false. But the mere presence of an array of props gives the appearance and the impression that the belief system has much “evidence” to support it.”
Does this perspective help shed some light on the modus operandi of propaganda which serves to create an erroneous belief system in the minds of its populace? Is the machinations of our political elites that of creating more and more “props” to substantiate claims of confidence, when evidence of lack of confidence abound in the unanimous proclamations of civil society?
In his recent thesis on “The letter versus the spirit of the law” Matthew Gordon concludes: “Building on the literature on social norms, fairness, and the law, The Letter Versus The Spirit of the Law Model offers great insight into the world of law and behavioral economics. This model not only demonstrates that breaking the spirit of the law is more important than breaking the letter of the law, but that breaking the spirit of the law may be worthy of penalization, even in cases where the letter is not violated.”
So this begs the question: What is the spirit of the laws of our Constitution? What are the social norms and what about our concepts of fairness? Is political tribalism part of our social norm, and is tribalistic politics considered fair? Is the spirit of our Constitution one that protects the priveledges and the ambitions of an extractive elite made up of incumbent politicians, their financiers and their lawyers, or one that protects the rights and aspirations of all its citizens via inclusive representational government via free and fair elections? If our social norm is one of “divide and rule” with its attendant complications, then we are doomed! If however our social norm can become one of “unite and lead,” then there is hope!
I will now turn to Dr. Martin Luther King Jr who has been my guiding light over the past year to determine what the spirit of the laws of our Constitution should be. I have no doubt that the ideas of liberty, equity and righteousness operationalized by just laws would define the spirit or intention of the Constitution. He would have written: “How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust…Let us consider a more concrete example of just and unjust laws. An unjust law is a code that the powers-that-be compel its citizens to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a citizenry compels the powers-that-be to follow and that it is willing to follow itself. This is sameness made legal…”
And finally, for those of you who like me believe that an inclusive government based on national unity rather than tribalistic politics should be the standard we aspire to achieve, our litmus test when it comes to interpreting the laws of the Constitution should be one that fosters inclusive representational government by the people, of the people and for the people. My source of hope comes from Wael Ghonim, who said at the end of his TED talk on Inside the Egyptian revolution:
“We are going to win because we don’t play their dirty games. We’re going to win because we don’t have an agenda. We’re going to win because the tears that come from our eyes actually come from our hearts. We’re going to win because we have dreams. We’re going to win because we are willing to stand up for our dreams…The winning is the winning of the dignity of every single Egyptian…My last word to you is a statement I believe in, which Egyptians have proven to be true, that the power of the people is much stronger than the people in power.”
Can we also have dreams too, and stand up for our dreams, for the winning of the dignity of every single Kittitian and Nevisian? Can we prove too that the power of the people, who are governed by the rule of law and the spirit of just laws, is much stronger that the people in power who govern us by the letter of the law and the rule of lawyers? If we can, then there is most definitely hope in our successfully untangling our present constitutional knot in addition to avoiding potential ones that may arise in the future.
The ideas for this article germinated from two sources:
The economic historian Professor Niall Ferguson presents the 2012 BBC Reith Lectures, titled The Rule of Law and Its Enemies. Across four programmes he explores the role of man-made institutions on global economic growth and democracy, referencing the global economic crisis and financial regulation, as well as the Arab Spring.
Why Nations Fail: The Origins of Power, Prosperity, and Poverty Daron Acemoglu and James Robinson conclusively show that it is man-made political and economic institutions that underlie economic success (or lack of it).