The Gazette 1971

outstanding authority on U.S. Constitutional Law wrote this : "Precisely in a time of warring ideologies there is an opportunity that ought to be embraced for the law to demonstrate its search for underlying points of argument and to work out accommodations that will be tolerable because they recognise a core of validity in more than one position of the combatants", and an American Judge addressing the American Bar Associa- tion said "Yours is the profession to which the present and posterity must look for the preservation of what is beneficent and cohesive in our social organism". From the earliest times man has aspired to live his own life and to have the opportunity of self-expression. It is through law that man has expressed his aspiration and sought to protect it. This aspiration finds articulate formal expression in our own Constitution which, hav- ing declared that the powers of Government (legislative executive and judicial) derive, under God, from the people, and, having proclaimed that the common good is to be the directive rule of the State, makes explicit, by positive enactment, certain principles or basic values expressed in terms of fundamental rights. Period of Unease and Economic Discontent If, however, we reflect for a few moments on contem- porary society, we cannot fail to be struck by the pre- valence of a feeling of unease with the way our world is going. We are living in a world of rapid technological development accompanied by the production and con- sumption of an ever-increasing quantity of goods. Words like "productivity", "progress", "growth" are bandied about, parrot-like, as if they contained some magic formula for making life more livable. "In the city men sell and buy, but nobody asks them why". In contrast, never was there greater universal economic discontent or a period in which the stress and tension of living offered a greater threat to the organic homogeneity of our social structure. The manifestations are many—the pursuit of material gain as an end in itself, the growth of paternal bureau- cracy, the plundering and pollution of the environ- ment, servitude to machines intended to serve us, de- humanisation of work, the evolution of a pervasive whereby each man's enterprise is swallowed up in a totality that does not care, the remote and impersonal authority of large corporations and economic institu- tions, non-participation in vital decision making. Ideas replaced by Pragmatism As if to compensate for all this, we have evolved a fantasy world, a world of collective make-believe ex- emplified by an aggressive assertion of self, a neurotic demand for speed, the fever of verbal, visual and musical titillation, a deterioration of morals, the rule of the trend, the excitement of the gimmick, and the equation of leisure with fun. The aspirational has be- come a derelict area. We have been trying to do without ideas altogether, relying on pragmatic policies with very little moral principle to guide our path. We live in a "know-how" rather than a "know-why" society. In protest, many people are now asking—what are our values and what are their priorities? They are no longer content to follow the road, they want to know where it leads. Youth sees the social process as a scramble for power. But if by protesting against an over-material civilisation the idealism of youth, im- patient with shams and driven by a burning desire for a better world, is seeking to recover a bit of the common

stock of humanity, we are entitled to ask the protestors to define their objective. The manifestos of today aim less at creation for the future than at obliteration of the past, but a revolution requires an objective as an age requires a philosophy. The questions we, as lawyers, must ask are these : Law as the outcome of social processes must reflect social change, but has it any significant shaping role of its own? Apart from reflecting social change, can law influence patterns of social change? Has law a value as a means of educating the public conscience to higher viewpoints on matters of public morality? Unfortun- ately we tend to question what law does rather than what it is. Jurisprudential Themes of Law Various theories with which you are, no doubt, familiar have been advanced from time to time. First, there is the Positivist Theory which propounds that law is the will of the State. The will of the State is the source of law and its criterion. Law is the apparatus of compulsion. The people are the object of rule. Others, amongst whom was that great American jurist Oliver Wendell Holmes, equate law with the legal system as they find it. The law is what the Courts say it is. It is followed because it is the law. The functional approach described as "social engineering" based on the concept of the balancing of social interests was developed by another great American jurist, Dean Roscoe Pound. All these theories lack the same thing—an objective system of values to which reference can be made for the purpose of resolving conflicting interests. "It hath not pleased the Lord to give his people salvation in dialect" (Ambrose). Social interest should be subordinated to standards of value Social interests do, of course, play a predominant part in shaping the law, but if they are allowed to find their own level in order of importance without any standard of values other than current popularity, then the pronouncements of these theorists are no more than neutral descriptions of some essential factors which have to be considered in the making of law. If, however, we look at law as an instrument designed to enhance the welfare of the community by promoting the human values for which society exists, we must see that what law is cannot be separated from what law is for, and what law is for cannot be separated from what it ought to be. The fact that something is does not explain why it ought to be. One cannot separate the inseperable. The "is" is constituted by the "ought". Law is a human thing intended to promote the happiness of human beings. It reflects or ought to reflect, the community's moral conscience, and we should be able to find in it principles which make possible the successful living together of men. Let us now turn to our own Constitution and see what it has to tell us. The Preamble to the Constitution The Preamble to the Constitution discloses the principles upon which it is based. These principles and the ends to which they are directed are announced as follows : (a) All actions, whether of men or of the State, are referable to God as their final end; (b) The objective to be sought by the body politic is the promotion of the common good; 169