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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;
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