From Hampden in the historic parish of Trelawny, the yam capital of Jamaica, David Farquharson has publicly entered the responsibility conversation as a thoughtful participant, as evidenced by his letter to the editor, which was published in The Gleaner of Tuesday, June 23.

He avoided the trap of addressing only a part of former Prime Minister P.J. Patterson's statement concerning the law and social engineering. By directing his attention to the quotation in full, he started on the correct footing, regardless of whether he agreed with the sentiments expressed.

That is the framework within which serious and responsible conversation should be conducted in such circumstances. That approach stems from the hallowed exhortation to do unto others as you would have done unto you, which finds expression in the law by the maxim: 'He who seeks equity must do equity'.

In that vein, it would not be good form for any of his views to be labelled "rubbish", as he has done in declaring: Let us have no more rubbish about how "the law is not a shackle; it is a tool of social engineering".

responsible discourse

Reggae Boyz's then coach, René Simoes, and fans celebrate Jamaica's qualifying for the 1998 FIFA World Cup finals in France. - File

The fact that he might have a different point of view should not drive him to denigrate others by seeking to disparage their points of view. There are persons in Jamaica, some with not a little influence, who approach a discussion, and even a soliloquy or monologue, with that attitude. It is the route of bigotry and, by the nature of his reasoning, it is not difficult to conclude that he would surely appreciate the importance of eschewing such means in the dynamics of responsible discourse.

That said, David Farquharson has raised issues which are germane to the conversation. From his approach, he would certainly belong to the national law school of jurisprudence, sometimes called the school of legal positivism. It holds that there is no higher law than that created by legitimate governments and that such laws must be obeyed, even if they appear unjust or otherwise at odds with 'natural' law. It is the written law of a society at a point in time.

It is to be noted that these schools are not rivals in the sense that they refuse to contemplate the principles or arguments that the others place on the table. So that, when he argues that the law, as a tool of social engineering, can lead to "horrendous atrocities", that is a legitimate question for the public conversation.

presumption

Adherents of all of the schools, however, begin with the presump-tion that the law must be obeyed, and must not be interpreted or used in a manner that is "not compatible with the interests of the people". Of course, the pursuit of atrocities can never be ruled out: but it is not the view that is held of the law; it is not the school of jurisprudence to which a ruler or group of rulers or any other person may subscribe that drives them to "devise" atrocities. Such persons are acting outside of the law, pure and simple.

The Adolf Hitlers, Benito Mussolinis and Idi Amins of this world, for example, have not proceeded as they have done as a result of any view that they might have had of how the law is to be regarded. They acted as they did, arising out of the view that they had of themselves.

So, let us move to examine the burning issue for Farquharson: was the act of the then prime minister in declaring a public holiday for a date less than seven days after the announcement of such a public holiday legal or illegal?

It is readily acknowledged that the Government, in particular the then minister with responsibility for sport, did not follow the procedure concerning the seven-day requirement as laid down in the Holidays (Public General) Act. And this was because of the obvious urgency and desirability of commemorating and marking "the achievement as a special occasion".

The law allows another route to be taken in such circumstances, provided the parliament so advises and consents. This is a procedure which would permit the parliament to lend its "advice and consent" or to ratify or validate if it considered it "appropriate to recognise the historic achievement", but, of course, not for purposes that it considers to be "incompatible with the interests of the majority of the people". That is a determination that the parliament must make at every step, in seeking to fulfil all of its responsibilities.

day of celebration

The writer argues that the granting of a national day of celebration less than seven days after the idea popped into the collective heads of government was not a matter of social engineering or even of national importance - it was sheer political expediency. Well, he and the former prime minister differ on that score and, in any event, his point of view was not what the parliament accepted and approved. But, let the bill that was passed by parliament tell the story:

"AN ACT to Make provision for the commemoration of the historic achievement of the Jamaican national football team qualifying for the 1998 World Cup finals.

"Whereas on the 16th day of November, 1997, the Jamaican national football team qualified for the first time to participate in the World Cup finals:

"And whereas it is appropriate to recognise the historic significance of this achievement, being the first time that an English-speaking Caribbean country has qualified for the World Cup finals:

"And whereas it is desirable to commemorate and mark the achievement as a special occasion:

"Now, therefore, be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Representatives of Jamaica, and by the authority of the same as follows:

"1. This Act may be cited as the Holidays (Public General) (World Cup Finals Qualifying) Act, 1997 and shall be deemed to have come into operation on the 17th day of November, 1997.

"2. Notwithstanding the provisions of the Holidays (Public General) Act, the 17th day of November, 1997, is hereby appointed to be observed as a public general holiday to commemorate Jamaica's qualifying for the World Cup finals to be held in France in 1998, and shall be deemed to have been so appointed pursuant to that Act."

The prime minister, the Government and the parliament did nothing that the law did not then, and does not now, allow. And it is recorded that the citizens of Jamaica applauded, almost with one voice. Some people would say, partially in Mr Farquharson's favour, that this was a procedure that was certainly not "illegal" and amounted both to good law and to good politics.

In so far as the integrity and composition of parliament is concerned, it is true that our Constitution mandates that "any question whether any person has been validly elected or appointed as a member of either House shall be determined by the Supreme Court". And, in that respect, he maintains, the law should be a shackle - a shackle on the parliament, and the shacklers are the members of the judiciary.

Maybe so! But that should not prevent the parliament from requiring those among their numbers who know that they are not properly there, so to declare, and a meaningful and acceptable way found of resolving the issue even without (further) resort to a full inquiry in the courts.

tool of social engineering

Day by day, several legal and constitutional issues are resolved in this manner, under the general principle of legally finding common ground even outside of the courts of law. The powers and duties given to parliament by "the authority of the people by whom they are elected" are expansive and, provided they are exercised with respect for the rule of law and in the interests of the people, the significance of the law as a tool of social engineering is widely recognised and accepted.

I more than welcome Farquharson's thoughts on these matters and the fact that our views do not coincide is hardly to the point; his is a significant contribution to the conversation. There is always room to critique the interpretation and application of the law within the practice of governance and the role and function of government.

He points to the possibility of atrocities being devised in the name of the law as a tool of social engineering, but as we have seen, that would really amount to disrespect for the rule of law.

Professor George W. Keeton, during his distinguished and productive academic career, wrote a study of 'Shakespeare and his Legal Problems', in which he examined a number of legal issues arising in his plays. And he points to the kind of pitfall that can attend stubborn adherence to a "strict construction" of the written law of a society at a point in time, as subscribers to the national law school tend to do.

He shows how Portia, in the Merchant of Venice, having failed in her moving plea for mercy, entangled Shylock into a strict construction of the bond, intentionally holding in reserve its illegality (the attempt on the life of a citizen should he seek to exact his pound of flesh), which, if Shylock had foreseen it, would have led him rapidly to accept Bassanio's tender of six times the sum lent.

Quoting from the continental jurist, Ulrici, Professor Keeton advances that: "With convulsive vehemence, Shylock clutches hold of the law, the small morsel of justice which cannot be withheld even from a Jew. This legal, formal, external justice Shylock obviously has on his side, but by taking it and following it to the letter, in absolute one-sidedness, he falls into deepest, foulest wrong, which then necessarily recoils ruinously on his own head."

Let the conversation continue, and in the vein of doing unto others as we would have done unto ourselves.

A.J. Nicholson is opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com