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Extracts of speech made by Dr. A. R. B. Amarasinghe, Retired Supreme Court Judge, and the Chairman of the Law Commission and of the Constitutional Council, at the Special Regional Meeting, in Sri Lanka of the Mount Pelerin Society on 14th January.

(Continued from March 09)

It is argued that although in the distant past, morals and community expectations were of paramount importance in the law-making process, the pace of development in recent years requires many laws to be enacted without sufficient consultation or without sufficient time for a consensus to be developed. Moral codes alone cannot regulate behaviour.

The law cannot for practical reasons encompass the wider requirements of morality. In the modern world, given its complexities, laws cannot always be made or appraised having regard to morals and community expectations.

Admittedly, it may not be possible to find agreement on all laws; but there are many matters on which general agreement can be found; and in my view. in discussions of law and order matters, greater attention than is now paid ought to be focused on legislation that supports identifiable core values.

I do not think that morals and community expectations are irrelevant in shaping the law. In fact, it has been said that "The rule of law is ... not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestionably accepted by the majority."

In a Gallup poll in the UK 72% of those interviewed said that there is no broadly agreed set of moral standards in a community. Yet the poll contained its own contradictions, because, paradoxically, further questions established a broad consensus on many issues of right and wrong.

Although once upon a time it was said that judges only declared what the law is, it is no longer asserted that judges do not make law. Indeed legislators sometimes strongly resent judicial encroachments on their turf, although, on rare occasions, when prickly issues are involved, they may deliberately leave it to judges to decide what would ordinarily be regarded as a policy issue.

In exercising their law-making power, it is significant that judges are conscious of the importance of community expectations in deciding matters involving ethical issues and leave it to legislators to decide them, for the reason that they, rather than judges, are better equipped to make informed decisions having regard to public expectations.

This is a very important matter, but one that seldom receives attention. The House of Lords in Tony Bland's Case and last year in Bellinger's case, however, did stress the place of community expectations in the law making process.

Many factors, including the phenomenal increase in population, the frantic competition for and ruthless exploitation of dwindling non-renewable resources, the degradation of the environment disregarding the principle of sustainable development, the World Wars, incessant revolts, subversive activities, the disruption of economic life by various means, modern inventions, new methods of large-scale production by factories, ownership of enterprises by corporate persons and multi-nationals instead of individuals, mass and instant communication of information, and in general the accelerating pace of development in all spheres of human endeavour, have radically transformed our world during the last two centuries, and especially during the last fifty years or so, necessitating an enormous amount of legislation to regulate our affairs.

But the proliferation of legislation, increases transgressions of the law. This, according to scholars then and now, is inevitable. Lao Tzu, the great Chinese philosopher, disapproved strongly of excessive state regulation.

Over two thousand five hundred years ago he observed that "As statutes increase, more criminals start." More recently, Professor Elvin H. Powell of the State University of New York, after investigating crime in Buffalo, observed that when the city lost its small-town quality and came to rely on formal law as an instrument of social control, "the crime rate quite naturally increased: more laws, more crime".

There are strident complaints from some quarters about an alarming escalation of crime. A collapse of society is therefore expected by those persons. But we need to ask this question: In what areas, if at all is the increase taking place?

In relation to grave crime or in relation to other infractions of 'the law' in a formal sense resulting in penal consequences? In many places, making allowance for the statistically inevitable increase in grave crime on account of the growth of populations, the escalation does not seem to relate to traditionally-regarded, community-perceived crime but rather to the infraction of laws that reflect official or elitist-motivated expectations or a combination of such expectations.

Although some people tend to describe as 'law' everything that has been resolved in the appropriate manner by a legislative authority, "the ideal of the rule of law presupposes a very definite conception of what is meant by law... not every enactment of the legislative authority is a law in this sense".

Infractions of legislation that do not touch community values lack the indirect but extremely important support extended by religious leaders, parents, teachers, the media and politicians to the observance of laws based on mores.

Transgressions of the mass of laws that are not based on the moral and cultural consciousness of a community do not produce antagonistic reactions in the community. The transgressor is not regarded as an enemy of society - a person deserving ostracism: at least a temporary banishment from society. The community feels no apprehension of danger.

They believe there is no cause for alarm that the transgression of such laws will per se lead to a disintegration of society. In many communities in our part of the world, shame is an important factor in the deterrence of crime. People fear of offence of propriety or decency. They would avoid such conduct or behaviour because it is morally disgraceful, dishonourable or base.

Certainly in some Asian and Pacific communities those principles are evident. But I would not be taken by surprise if someone told me that similar ideas existed elsewhere. Pericles, for instance, recognized the fact that freedom did not make us lawless chiefly because the laws "whether they are on the statute books or belong to that code which, although unwritten, cannot be broken without acknowledged disgrace".

I would venture to submit that members of our communities regard transgressions of the law that do not reflect community values either with tolerance or indifference at the lowest, or at the highest, with absolute contempt.

Support for some laws - plausibly, and without too much strain - may be canvassed on the basis that they are derived from the moral and cultural consciousness of a community. A great deal of contemporary law, however, has little or nothing to do with that. Legislators set norms of "you shall" and "you shall not" which were not until recent times in the ambit of lawmakers. Many legislative instruments do not rest on mores: they are derived from official expectations and so on.

What are the implications? We have a crisis on our hands. Moshe Silberg, a Judge of the Supreme Court of Israel, said: "This is in short the problematique of law, in our day this is at the root of the 'legislative crisis of our generation.

The growth of crime all over the world should to a great extent be regarded as a result of this crisis, the crisis of faith in the wisdom and understanding of the legislator. And the lesson from all this is that the law should never be a decree because 'decrees are abolished,' our Sages said: decrees are not saturated in the people's spirit: they do not integrate with its philosophy of life.

The task facing the legislator - any legislator - is to bring the law closer to the mind (so that the people should understand it): and to bring it closer to the heart (so that the people should want to obey it). If one of the two is lacking, a surrender to the law is possible, but not its observance.

The ideal is, "They shall keep my charge," that the citizen should be interested in obeying the law and protecting it as a thing of great value not only from an objective aspect (as a matter of self-interest) but from a subjective aspect (as a matter of will) as well".

There are only some laws - essentially those that have an ethical foundation - that may, with some justification be regarded as welling up from the people rather than being imposed on them.

An ethical foundation need not necessarily be one that is based upon a particular system of faith and worship: A law that is in harmony with the assumptions of a community and forms part of the moral traditions of the community may be said to rest on ethical foundations. But most laws enacted in the last half a century have little or nothing to do with what the majority of people want or with community aspirations and expectations.

Laws are morally fallible and cannot always be justified on their merits. Many pieces of legislation, although general in form, are of a specialized nature: They may regulate the conduct of a segment of the community concerned with a particular activity.

Moreover, it has been observed that, although in current practice, everything is called 'law' which has been resolved in the appropriate manner by a legislative authority, only some of these 'laws' - usually only a very small proportion - are substantive (or 'material') laws regulating the relations between private persons or between such persons and the State.

"The great majority of the so-called laws are rather instructions issued by the State to its servants concerning the manner in which they are to direct the apparatus of government and the means which are at their disposal".

There are many laws - most laws, perhaps, - that impose sanctions for non-observance: Coercion is generally a recognized part of the process of enforcement. Of course, for the sake of completeness, it must be observed that there are some laws that are merely concerned with empowerment to do certain things, such as the capacity to contract or the manner of making a last will, that carry no penal consequences such as imprisonment or fine.

In general, it would seem that whenever a penal sanction is imposed for the transgression of any law, whether substantive or not, there is a 'crime'. But, is there not, a distinction between 'real crime - those transgressions that the community as a whole treats seriously because they concern basic principles regarded as central to their well being - and other laws?

The transgression of such 'other laws' are, I suspect, treated with indifference by most people, for they do not immediately concern them. As for what Lord Devlin once described as 'real crime', if religious organizations, parents and teachers, the media, politicians and the community are encouraged and positively supported in their efforts to regulate behaviour, the disintegration of civilised society might be arrested, and the law - a relatively new partner in the task of regulating human behaviour - might perhaps incidentally be redeemed and help us on our way.

We do not yet have a comprehensive theory of the conditions under which people are morally bound to obey the law. But we may perhaps usefully try to have a better idea about why people may voluntarily want to obey the law and why it is important to encourage and support ways and means of securing what is generally bidden by the community.

The essential teachings of the great religions of the world embody important principles of the law that people understand and want to obey. I am not for a moment suggesting that the making or appraisal of law should be left to people with religious beliefs or inclinations of one sort or another. Nor am I suggesting that all laws must have an ethical foundation.

But if 'real crime' is what should principally concern us in providing an appropriate climate for economic progress and arresting the disintegration of society, then I am suggesting that religion is one accessible bridge over which we may cross over the crisis and proceed from third world toward the first. Let me quote two statements and invite you to reflect on their effect, if observe,d upon 'real crime'.

The first is Sir Edwin Arnold's statement of the rules laid down by the Buddha.

More is the treasure of the law than gems:
Sweeter than comb its sweetness: its delights
Delightful past compare. Thereby to live
Hear the Five Rules aright:

* * *

Kill not for Pity's sake and lest ye slay
The meanest thing upon its upward way.
Give freely and receive, but take from none
By greed, or force or fraud, what is his own.

* * *

Bear not false witness, slander not, lie:
Truth is the speech of inward purity.
Shun drugs and drinks which work the wit abuse,
Clear minds, clean bodies, need no soma juice.

* * *

Touch not thy neighbour's wife, neither commit
Sins of the flesh unlawful and unjust.
Those words the Master spoke of duties due
To father, mother, children, fellows, friends.

* * *

The second statement is from the Bible. In Romans Chapter 13 we find the following words:

* * *

Owe no man anything, but to love one another,
For he that loveth another hath fulfilled the law.
For this, Thou shall not commit adultery,
Thou shalt not kill, Thou shalt not steal,
Thou shalt not bear false witness,
Thou shalt not covet:
And if there be any other commandment,
It is briefly comprehended in this saying, namely,
Thou shall love thy neighbour as thyself.
Love worketh no ill to his neighbour:
Therefore love is the fulfilling of the law...

Such precepts were essentially derived from an extrapolation of standards implicit in received morally; and although sometimes misunderstood, with sad consequences, the founders of the great religions and moral reformers "came not to destroy the law but to fulfill it".

The proliferation of laws and the consequent increase in transgressions without a corresponding increase in human and other resources is making law enforcement and the machinery of justice less and less efficient, so that a complete breakdown seems imminent.

We have been driven to a point of distraction by concerning ourselves with acts that are by definition 'crimes' although they have little or nothing to do with preserving civilized society. And consequently, the transgression of laws that are not based on community values may, nevertheless, contribute to the disintegration of society.

Let me explain: Law enforcement officers are expected to deal with all crime - grave or otherwise - and consequently, because of limited resources, a dilution of duties make sit impossible to adequately deal with grave crime.

The police and the courts in many less developed countries are unable to expeditiously deal with criminal cases. It often takes several years for investigations and for a man to be tried.

The proliferation of laws is inevitable; but it must be realized that it has not only heaped burdens on the police so as to make it increasingly difficult for them to concentrate on 'real crime', but that it has also brought the police into excessive contact with the public.

Continual disagreement and conflict with fundamentally law-abiding people has deprived the police of the cooperation of the public on which the police must rely in the fight against 'real' crime. Lord Devlin said: "The simplicity of the criminal law has gone.

The main task of the police half a century ago was to protect society against its enemies. Not all men were dangerous men who enjoyed crime. I call them enemies of society because they were men who would not or could not accept the restraints that society places upon the individual.

They were men who would were against the law. But now we have a number of social regulations which have been put upon the police to enforce.

Those who break them I shall call 'offenders' for in bulk - though one must make exceptions for a few very bad cases - they are not real criminals, but generally law-abiding members of society. This change in the function of the police has, I think, profoundly affected their relations with the public. The shepherd and the sheepdog are no longer employed simply to beat off the wolves.

The sheep are no longer allowed to graze freely where they will. "Their grazing is now strictly controlled and those that stray are harried by the sheepdog.

The sheepdog is no longer seen as the benevolent protector and some sheep - no doubt the more troublesome ones - begin to have a sneaking sympathy for the wolf".

Lord Devlin was of the view that "we should try to get back to the idea that the police are a body that exists to deal with real crime, that the duties they are given to do in connection with social regulation are foreign to their nature and that the less they have to deal with them the better". I find myself in agreement with those views.

In an increasingly complex world concepts of law based on mores alone are inadequate.

But I do think we might be on our way to providing some solution to the problems we face if we approach them rationally, rather than emotionally, practically, rather than theoretically, being conscious of the present but not disregarding the lessons of the past, conserving our resources by identifying provisions of the law that are really important for ensuring the stability of society as a whole, rather than the preservation of special interests, and harnessing all the options for regulating behaviour, including certain provisions of the law and its structures, but not ignoring or devaluing the importance of ethical standards and mechanisms.

For our task ought not to be the ideal but unrealistic goal of the total elimination of crime but rather the reduction and restraint restrain of it by a variety of methods and the guarantee of the essential conditions of the rule of law.
(Concluded)

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