Friday, February 7, 2025

The Spirit of the Law, Winter Evictions and Pardoned Murderers

What a pitiless sucker? They say how can he pardon such murderous monsters? Kalafatis is still warm in the ground .The Judge locks them for 7 years in jail, but the President thinks rubbish! Let them go free, what a monstrosity of nonsense! The question rings in the public corridors, but remain unsolved. Some postulations of the incident, needing no reiteration, run very close to insult and defamation, for a sensitive man, that is. But there is a fundamental point of convergence. All critics agree that the law allows him. In fact, we can stretch it further; he can, if he dreams it or feels like it, pardon all murders and rapists, and show them the gates.

What a brutal and ruthless land board? How can a Land-Board, that holds land in trust for the people of Botswana, evict people and children, amidst this cruel and unforgiving winter? Does it not have a heart? But hereagain, even Kenneth Dipholo will and does in fact concede that the law allows it, what he questions is “the manner of doing it”, but again, he will not even say “the manner of doing it” was against the law. All lawyers and judges agree, once a Land Board holds a Court Order, it is entitled to execute it, to throw a squatter out, whether the squatter is blind or senile, come winter or summer.

Then, we must pose this question, how can it be that when a man does that which the law allows he causes so much uproar that equates to when he has broken the law? What intelligent society makes laws and throws the one who exercises it with stones?

At the close of the 18th century, and towards the birth of the 19th century, the legal philosophical engineers, Austin and Bentham, insisted, firmly and with maximum clarity, on the separation of law and morality, and gave birth to a school of thought today called legal positivism. Legal positivists will tell you what Austin told his readers, that “the existence of law is one thing; its merit or demerit is another.Whether it be or be not, is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our approbation and disapprobation.”

Thus, to a legal positivist, pardoning Kalafatis killers or evicting a homeless person in winter presents no unfathomable conundrum. The law exists that says it can be done, so it can be done, and anytime is tea time. After all, the law has been followed, the merits or demerits of that law is not a legal positivist’s cake. All other moralistic considerations are not part of the formulary.
But the other side exists, the natural law school of thought. Hart writes thatNatural-law theory in all its protean guises, attempts to push the argument much further and to assert that human beings are equallydevoted to and united in their conception of aims and policies, such as the pursuit of knowledge and justice to their fellow men other than that of survival, and these dictate a further necessary content to a legal system. Hence, students of natural-law theory admit that there must be some overlap between morality and law, as a matter of natural necessity, for a legal system to be worth its name. As a product of human endeavor and social control, the law must accomplish its noble goals with a ‘human face’.

A Natural law student might not so readily and so speedily pardon and set free men who, in light of day, in everybody’s watch, hunted, found and nailed not less than eight bullets in an unarmed citizen, and were convicted by a court of law, when the griever’s wounds have not healed, and the public still reels in shock and fear. He considers the aims and goals of the law that says criminals must be punished and the aims and the goals of the prerogative of mercy. And he might pause when he is called upon to evict a homeless family in harsh elements. He is confronted with a paradox, he believes in the fidelity of law, the law must be followed in land allocation, and on the other hand, he also believes in the dignity of the homeless stutterers. And the simple fact that he has a Court Order does not decide the question, the law has a spirit and both the law and its spirit must guide his choice.In his mind, the law does not out-law conscience and humanism.

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