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The Law’s Spirit no more


29 March 2013 06:30 pm - 0     - {{hitsCtrl.values.hits}}


By Afreeha Jawad
In the many volumes that the 17th century French political thinker Montesquieu  wrote on the ‘Spirit of the Law’, he makes a clear distinction between the intelligent being and the physical world. His reference to intelligence was by no means in an ordinary sense of that word. The depth of his reference is not difficult for the sharp and astute mind, perceiving things beneath surface happenings - apparently what he views as not of the physical world. Certainly, it needs a highly creative mind to understand Montesquieu ‘s  delivery yet such minds are hard to come by in politicised  societies not to forget as well the system’s control of man that leaves no room to enable depth of thought to perceive a subject so very profound as the law’s spirit.Montesquieu arguing his case refers to the intelligent world as not being so easily governed as the physical. ‘’When one obeys the letter of the law and not the spirit, one ís obeying the literal interpretation of the law’s word not the intent of those that wrote it. Resorting to technicalities, loopholes and ambiguous language by following the law to the letter is always the task of oppressive governments. A government most comfortable to nature agrees with the honour and disposition of all its people in whose favour it is established.’’

 A greedy lawyer and an insensitive government share commonality in that they both are hell bent on monetary gain.  Towards that end they will manipulate the law ignoring its spirit and following it to the very letter. Despite the shortfall in creativity to detect the law’s spirit, even in instances of creative ability, only the law’s very letter is adhered to - the objective being money over morality and hegemony over liberty.

  That the law is a blind ass is well said yet stíll better it would be to say that ít needs a set of donkeys to follow the ass. Noted as we are in failing to see the larger picture, we have missed out on vitalities, for our commitment to upholding the law has smeared our lenses in visualising the law’s spirit. Public awareness of alł such is near nil.

 The legislature makes laws and the executive implements them. The judiciary is expected to punish the wrong doer. Yet, when this tripod of governance overlaps, what we see is a moral dislodge. In such circumstances the state suffers loss of virtue and honour. The laws constituting the separation of powers and the spirit of those laws are thrown overboard. Against this backdrop the writer is reminded of Montesquieu’s least known expressions -

‘’Honour is found in countries with fixed constitutions and where they are governed with settled laws. When virtue is banished and ambition invades the mind, meanness mixed with pride, desire of riches, flattery and aversion to truth, the state is undone.’

 Inevitable indeed is the end result, for the rule of law ceases to be. The dignity and elegance of good governance would no longer hold. It could be that states that point the accusing finger at some other themselves bear a history of violation of rights in relation to their treatment of other countries - a glaring example being the colonial empire build up.  Yet two wrongs don’t make a right. Instead of a ‘tit for tat’ approach, the dutiful engagement into moral governance will enable the display of a rise in moral stature internationally proving to the world one’s moral superiority over even those that hurl accusations. This reminds the writer of a profound utterance that came off a grocery owner in Borella - Nihal Gunadasa, who in the course of conversation said, ‘’Always do the right thing regardless of the wrongs done to you.’’

Sujani Perera, when asked what made her rise to the occasion in helping someone who sinned against her said, “I do not want to descend to her level. I did what I felt was right.’’

 These then are only two ordinary citizens of this country who are by no means ordinary. The Sri Lankan state, facilitated with an impressive report in hand, inviting even international acclaim - the Lessons Learnt and Reforms Commission - the implementation of which the world awaits.

If doing the right thing is the state’s prime concern, let future historians not view this as a missed opportunity for a lasting settlement to a problem that has dented Sri Lanka’s international image so badly.

 To quote Aristotle, “the end of politics is happiness, and virtue is the means to get there.”

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