Natural Law – Pakatan’s Dangerous Tool (layman’s version)

Wuar … it’s been a long time since I wrote a blog. I wrote this last week – available in 7″ single and 12″ extended remix versions (see below) - after six months of studying Jurisprudence …

Natural Law – Pakatan Rakyat’s Dangerous Tool

 Pakatan Rakyat’s policies are based on Natural Law principles and this can ultimately be a threat to justice and liberalism.

 By Aneel David Kannabhiran

 

 What is Natural Law?

 “Lex iniusta non est lex” - an unjust law is not a law. This is the single most important theoretical issue in the realm of Natural Law.

            Natural Law theory stands on the proposition that, “law cannot be properly understood except in moral terms,” and therefore law and morality are inextricably linked, according to Dr. Roger Cottrell in his seminal book, “The Politics of Jurisprudence”.

            Natural Law is derived, according to St. Thomas Aquinas in “Summa Theologica” from a higher, Divine Law; and with this exalted status, Natural Law becomes the yardstick by which the worth or authority of man-made law can be judged.

Reformasi, Pakatan-style

 Prof J.M. Finnis asserted that unjust laws may give rise to a moral obligation to criticise and protest against them, and in extreme conditions disobey them and force change.                      

             This has been Pakatan’s main thrust, as evidenced from the days of the Reformasi movement in 1998 to the Bersih and Anti-ISA rallies to the perennial and continuing UMNO-BN bashing by opposition MPs in the alternative media.

            Pakatan’s agenda is centred on its mission to constantly prove that the ruling Barisan Nasional party has held onto power with the aid of laws that have been employed to protect and cover up their policies and practices of corruption, nepotism, cronyism and rent-seeking that has bled the nation’s coffers and the tax-payer. These practices, if seen in the Natural Law context are in no uncertain terms immoral.

            Therefore Natural Law would prescribe nothing less than an unequivocal overthrowing of this immoral regime through the ballot box, and this is the unwavering message sent forth by Pakatan supporters across the nation.

 Pakatan’s Trajectory

 Once the UMNO-BN regime is overthrown, the new Pakatan government, guided by Natural Law principles, will undoubtedly want to enact laws which promote moral order for the greater good of the nation.

            This, it is submitted, can prove dangerous, for ultimately, the one who uses this Natural Law yardstick to judge, influence and shape man-made laws is none but a human himself, with a finite and often skewed impression of ‘God’s will’.

            As Cottrell describes, “Moral reasoning applied to such a social and public matter like legal regulation will typically produce prescriptions as to how the power of the State should be exercised in controlling citizen’s actions.”

            Laws will be enacted for the ‘common good’, appealing to the lowest common denominator of what is “moral” – influenced by the religious credentials of PAS and the conservative elements within KeADILan and DAP.

            JAIS’ (Jabatan Agama Islam Selangor) moral police continue to barge into hotel rooms and pubs searching for Muslim drinkers or unmarried or gay couples inevitably distressing and disturbing the peace of non-Muslim patrons as well. The Pakatan-led Selangor State government makes nary a sound in response, giving one the impression they actually condone moral policing.

            The recent Pakatan-led uproar over the legalisation of sports betting is yet another example of Natural Law holding sway over an individual’s right. In a surprising development, the DAP has apparently now taken to riding the moral high horse, long ridden by PAS and KeADILan, as evidenced by Penang Chief Minister Lim Guan Eng’s rejection of sports betting licenses in the state.

            UMNO-BN have joined the bandwagon by their sudden policy reversal on the sports betting issue.

 Pakatan’s Division

 If Pakatan’s track record has been shown to pander to the majority’s (read Muslim) conservative requirements, one wonders what would become of legalised gambling institutions, nightclubs or other forms of “immoral” entertainment should Natural Law become entrenched into Pakatan’s policymaking formula once it comes into power.

            One also wonders about “controversial” minority rights such as that of gays, drug or pornography users, sex workers and the like.

            Because morality is subjective, many may applaud Pakatan’s moral policing while others may find it an affront to their freedom of choice. There are also supporters who admire Pakatan’s battle to overthrow UMNO-BN but at the same time abhor Pakatan’s moral conservatism. 

            As such, there exists a real, but yet underlying division within the ranks of members and supporters of Pakatan – conservative and liberal – united only by the dogged determination to overthrow the common enemy, BN. After this is achieved, the division will become painfully apparent – those who stood together as political allies will discover they were actually political enemies all along.

            The more liberal elements within Pakatan and in society must, without delay, demand Pakatan answer hard and direct questions on its policy trajectory, especially the question on whether our Constitutional freedoms: of movement, of association, of expression and of choice will be subject to, and limited by moral considerations as dictated by religion.

            It is submitted that the possible removal of Anwar Ibrahim (and his liberal ideology) will see Pakatan, helmed by the majority theocrats and conservatives, travelling deeper into the realm of moral conservatism, their journey paved by Natural Law.

            Anwar must prepare for the likelihood of facing a jail term by appointing more liberalists to the leadership to check and balance the conservatives, or better still, outnumber them.

            For the electorate, we must all remember H.L.A. Hart’s dicta, “law is not morality, let it not be subsumed by morality” and thereupon renew our commitment to resist in the strongest manner possible, any attempts at the ‘religionisation of law’.

            If we do not resist the more conservative quarters in Pakatan, we may end up exchanging one authoritarian regime for another at the next general election.

            In the interests of justice and individual rights, Pakatan must discard its Natural Law leanings and rein in its more conservative leaders in favour of those with a more liberal democratic approach.

Aneel David Kannabhiran, 45, is an occasional writer, DJ and blogger who is interested in Law Reform.
 He is currently awaiting the results of his final year LLB exams.

For the 12″ extended (aka pompous academic version CLICK HERE)

natural law: pakatan’s dangerous tool (pompous academic version)

This version was rejected by Malaysiakini for being “a tad too academic” – that would be the greatest compliment cum rejection I’ve ever received!

Natural Law – Pakatan Rakyat’s Dangerous Tool

 By Aneel David Kannabhiran

 NATURAL LAW PRINCIPLES can be applied in equal measure and efficacy to revolutionary movements on one hand, and to engender social conservatism on the other, and this is at the same time both admirable and dangerous.

            More so because Pakatan Rakyat’s policies, it will be shown, are based on Natural Law principles, and this can ultimately be a threat to democracy, justice and liberalism.

What is Natural Law?

“Lex iniusta non est lex” - an unjust law is not a law. This is the single most important theoretical issue in the realm of Natural Law.

            Natural Law theory stands on the proposition that, “law cannot be properly understood except in moral terms; that it is a fundamentally moral phenomenon,” and therefore law and morality are inextricably linked, according to Dr. Roger Cottrell in his seminal book, “The Politics of Jurisprudence”.

            Natural Law is derived, according to St. Thomas Aquinas in “Summa Theologica” from a higher, Divine Law; and with this exalted status, Natural Law becomes the yardstick by which the worth or authority of man-made law can be judged. Law therefore, must necessarily not be in conflict with what is ‘good’ and ‘Godly’, incongruent or casting a divide with God’s will.

            Natural Law then, according to James Penner, professor of jurisprudence at the University College, London, is principally a theory of morality, not a theory of law.

            Therefore the maxim, “an unjust law is not a law”, if viewed as a moral absolute, would mean that if Parliament were to pass legislation that is unjust, evil, or an affront to society’s sense of morality, a Natural Lawyer would declare it as no law at all.

            However this is neither the true Natural Law position nor Pakatan’s.

            According to Aquinas, a law only “obliges in conscience” to the extent that it is in keeping with Natural Law – Aquinas did not draw from this conclusion that an unjust law is not a law – at least not in absolutist terms.

            Prof J.M. Finnis in “Natural Law and Natural Rights” sought to clarify the Natural Law position by declaring that Aquinas did not conclude that unjust laws lack legal validity – “the central position of Natural Law theorising recognises the legal validity of unjust laws – it is valid, but illegitimate.”

 Reformasi, Pakatan-style

 Finnis further asserted that ‘bad’ or unjust laws may give rise to a moral obligation to criticise and protest against them, and in extreme conditions disobey them and force change. Therefore if Natural Law adjudges human law to be immoral, this would provide a legitimate opportunity for reformation, if not revolution.

            This has been Pakatan’s main thrust, as evidenced from the days of the Reformasi movement in 1998 to the Bersih and Anti-ISA rallies to the perennial and continuing UMNO-BN bashing by opposition MPs in the alternative media.

            Pakatan’s agenda is centred on its mission to constantly prove that the ruling Barisan Nasional party has held onto power with the aid of immoral laws such as the Internal Security Act (ISA), Printing Presses and Publications Act (PPPA), Sedition Act (SA) and Official Secrets Act (OSA) to name but four.

            These laws, Pakatan has time and again alleged, have been employed to protect and cover up their policies and practices of corruption, nepotism, cronyism and rent-seeking that has bled the nation’s coffers and the tax-payer. These practices, if seen in the Natural Law context are in no uncertain terms immoral.

            Pakatan has also had a field day vilifying the solutions proposed by the BN – the removal of subsidies and the imposition of the GST (Goods & Services Tax) to cover the shortfall and bleeding caused by the BN’s immoral practices – further taxing and bleeding the ordinary citizen.

            Therefore Natural Law would prescribe nothing less than an unequivocal overthrowing of this immoral regime through the ballot box, and this is the unwavering message sent forth by Pakatan supporters across the nation.

 Pakatan’s Trajectory

 Natural Law requires that man-made laws must be ‘good’, ‘just’ and beneficial to citizens, in order (according to Aquinas) to enable man to participate in the moral order of nature designed by God. In effect, Natural Law will ultimately provide a pathway whereby man’s will and God’s will are aligned.

            Once the UMNO-BN regime is overthrown, the new Pakatan government, guided by Natural Law principles, will undoubtedly want to enact laws which promote moral order for the greater good of the nation.

            As Natural Law is derived from Divine Law, it (according to Cottrell) requires no human legislator, yet it stands in judgment on law created by human legislators.

            This, it is submitted, can prove dangerous, for ultimately, the one who uses this Natural Law yardstick to judge, influence and shape man-made laws is none but a human himself, with a finite and often skewed impression of ‘God’s will’.

            As Cottrell describes, “moral issues inevitably turn into, or serve as cloaks for, political issues.         Moral reasoning applied to such a social and public matter like legal regulation will typically produce prescriptions as to how the power of the State should be exercised in controlling citizen’s actions.”

            Here, Natural Law inevitably takes on a Utilitarian persona – laws will be enacted for the ‘common good’, appealing to the lowest common denominator of what is “moral” and therefore ‘good’ and ‘Godly’ – influenced by the religious credentials of PAS and the conservative elements within KeADILan and DAP.

            PAS, it has been observed, has tried with varying degrees of success, to legislate on our morality. In PAS-ruled Kelantan they have managed to ban gambling, nightclubs and alcohol believing that in order for one to lead a “morally upright life”, a state must be rid of “vice”.

            In Selangor, PAS’ Hasan Ali has tried unsuccessfully to block convenience stores from their supply of beer.            JAIS’ (Jabatan Agama Islam Selangor) moral police continue to barge into hotel rooms and pubs searching for Muslim drinkers or unmarried or gay couples inevitably distressing and disturbing the peace of non-Muslim patrons as well. The Pakatan-led Selangor State government makes nary a sound in response, giving one the impression they actually condone moral policing.

            The recent Pakatan-led uproar over the legalisation of sports betting is yet another example of Natural Law holding sway over an individual’s right. In a surprising development, the DAP has apparently now taken to riding the moral high horse, long ridden by PAS and KeADILan, as evidenced by Penang Chief Minister Lim Guan Eng’s rejection of sports betting licenses in the state.

            UMNO-BN, instead of opposing such moral policing initiatives have joined the bandwagon, evidenced by their sudden policy reversal on the sports betting issue; ostensibly to win favour with the more conservative sections of the electorate and yet again endeavour to ‘out-Islamise’ the Opposition.

 Natural Law is Dangerous

 Natural Law is a double-edged sword. Its proponent’s theories can be adapted to achieve any end. John Finnis and his “Seven Basic Goods” can be employed to engender either a “flourishing” conservative or liberal society depending on the one wielding the Natural Law sword. Lon Fuller’s “Eight Desiderata” can result in the most just or evil legal system, depending on the perception of each individual in a society, as H.L.A Hart had observed in “Law, Liberty and Morality”.

            Natural Law is also malleable – its principles can easily be moulded to suit the beholder: enabling revolution to overthrow an immoral regime on one hand or to encourage moral policing on the other. Its malleability is therefore dangerous especially in the hands of a zealot.

            Both the former Bush Administration and the 9-11 hijackers each used Natural Law principles to justify the means to achieve their ends. Bush and his neo-conservative right-wing Christian cohorts believed absolutely that their reaction to 9-11: the wars in Afghanistan and Iraq were all signposts pointing to the Biblical “end times” and that they were all part of God’s plan to establish “the New Jerusalem” (Rev. 21:2).

            Al-Qaeda similarly believes that the “Great Satan” – the USA must be slain in order for Islam to regain its past glory.

 Reject Majority Tyranny

 Because morality is subjective, each segment of society (even each individual) has his own standard of what is moral or immoral. Thus, many may applaud Pakatan’s moral policing while others may find it an affront to their freedom of choice. There are also supporters who admire Pakatan’s battle to overthrow UMNO-BN but at the same time abhor Pakatan’s moral conservatism. 

            One wonders what would become of legalised gambling institutions, nightclubs or other forms of “immoral” entertainment should Natural Law become entrenched into Pakatan’s policymaking formula once it comes into power.

            If Pakatan’s track record has been shown to pander to the majority’s (read Muslim) conservative requirements, one also wonders about “controversial” minority rights such as that of gays, drug or pornography users, sex workers and the like.

            “The mark of a civil society is how its minorities are treated” (Reinhold Neibuhr), but when the majority rules, minority sensitivities are often ridden roughshod over.

            Anwar Ibrahim was interviewed last year for an episode of BBC’s “Crossing Continents” and was asked about PAS’ clamour for a more “Islamic Malaysia”.

            He replied as follows: 

            “People do ask me, ‘Anwar, you say that you’re quite tolerant, why then do you work with people who demand you set up an Islamic State?’ I say, ‘why should we deny people from just talking about it?’ But our position is clear.

            “I don’t deny people from talking about a Socialist State, or a Capitalist State, or a Secular State … you want to practice Islam? Fair, but the principle of ‘freedom of conscience’ cannot be compromised.

            “You want to impose certain conditions … censorship of pornography, yes, you can debate, but the principle of ‘freedom of expression’ cannot be compromised. These are sacrosanct in terms of Constitutional guarantees. So we will have to then negotiate or have conversations, but based on these basic principles. I don’t think we should dictate.”

            It is submitted that the possible removal of Anwar Ibrahim (and his liberal ideology) from the political landscape will see Pakatan, helmed by the majority theocrats and conservatives, travelling deeper into the realm of moral conservatism, their journey paved by Natural Law.

 Reject Natural Law

 It is submitted that there exists a real, but yet underlying division within the ranks of members and supporters of Pakatan – conservative and liberal – united only by the dogged determination to overthrow the common enemy, BN. After this is achieved, the division will become painfully apparent – those who stood together as political allies will discover they were actually political enemies all along.

            The more liberal elements within Pakatan and in society must, without delay, demand Pakatan answer hard and direct questions on its policy trajectory, especially the question on whether our Constitutional freedoms: of movement, of association, of expression and of choice will be subject to, and limited by moral considerations as dictated by religion.

            Anwar must prepare for the likelihood of facing a jail term by appointing more liberalists to the leadership to check and balance the conservatives, or better still, outnumber them.

            For the electorate, we must all remember H.L.A. Hart’s dicta, “law is not morality, let it not be subsumed by morality” and thereupon renew our commitment to resist in the strongest manner possible, any attempts at the ‘religionisation of law’.

            If we do not resist the more conservative quarters in Pakatan, we may end up exchanging one authoritarian regime for another at the next general election.

            Although Natural Law is but a tool, like any tool, is only efficacious in the hands of a beholder: it can be used to either build or destroy – a weapon of war, and instrument of peace and a device of political power and suppression all at once – a Tolkien-esque ring which at once can inspire awe, fear, righteousness and greed. Because it can result in ends which are unpredictable and potentially volatile, it must be rejected.

            In the interests of justice and individual rights, Pakatan must discard its Natural Law leanings and rein in its more conservative leaders in favour of those with a more liberal democratic approach.

            As Scandinavian legal realist Alf Ross put it, “Natural Law is a harlot at everyone’s disposal” and an extremely dangerous harlot, at that.

 Aneel David Kannabhiran, 45, is an occasional writer, DJ and blogger who is interested in Law Reform.
He is currently awaiting the results of his final year LLB exams.

For the 7″ radio edit (aka layman’s version) CLICK HERE