Unravelling complexities of legal interpretation

I had a pretty hard time a fortnight ago when I was ‘accosted’ and ‘heckled’ by a motley crew of professionals over the meaning and purpose of law in the aftermath of the Supreme Court’s decision on the suit led by the Majority Leader, Alexander Afenyo Markin, on what constitutes ‘vacation of seats’ in Parliament.

The suit had basically been led for the interpretation of Articles 97(1)(g) and (h) of our Constitution.

The professionals in question were confused, indeed baed, by the fact that a lot of lawyers, law lecturers and even some judges on the panel that decided the case were divided on the interpretation of what constitutes ‘vacation of seats’.

Primarily, most of these professionals, some highly educated in their respective fields, could not fathom why there are such divergent views among the legal fraternity on the issue.

To them, the law should be law; that is, there has to be only one interpretation of a given set of facts.

They could not understand why different lawyers and judges should put different slants on the same facts.

The experience convinced me that there is an urgent need for public education on the nuances of law, especially with regard to what constitutional interpretation means.

This is because if these highly educated professionals thought in this way about interpretation, then only Providence knows what other, not so highly educated fellow citizens, might be thinking.

This is, therefore, a rudimentary attempt to explain why, in practice, there are no ‘right answers’ in law.

Jurisprudence

This brings us into the realm of jurisprudence, which derives from the Latin word ‘jurisprudentia’, meaning knowledge of the law, it deals with the fundamental principles and various theories of law.

This is because there is no one theory of what law is.

There are various schools of legal philosophy, which have different views as to what the law is. For example, there are Positivists, Natural Law scholars and critical legal scholars, just to mention a few, all postulating differently as to what law is.

For instance, legal positivists, of which  Professor Hart is a leading protagonist, hold a theory of law which posits that the existence of the law and its contents depends on social facts, such as acts of parliament, by-laws of local authorities and judicial precedents, rather than on morality.

On the other hand, natural law theory, which is traced to religious personalities like Saint Augustine and Thomas Aquinas, believes that laws should be based on and underpinned by morality.

To natural law scholars, any ‘unjust’ laws are not laws. To them, there are universal moral standards inherent in human beings and these moral norms should be the basis of laws for human beings.

It is very possible, therefore, that the outcome of a case, based mainly on the same facts, may be decided differently by different adjudication bodies.

This view was strongly disputed by the late legal philosopher, Ronald Dworkin, a natural law protagonist who argued that all hard questions of law “admit of one answer” – that is, there is only one morally right answer to any legal problem.

In contrast, positivists, spearheaded by Professor Hart, argue that law has an open texture.

So, in cases where the law seems unclear, the decision maker has discretion. This implies that different answers to the question might be given depending on how the discretion is exercised.

Legal scholars, philosophers, lawyers, and judges are not united in their views on what the law should be in any given situation.

On a practical level, this is partly why there is an appellate system within the administration of the law, whereby certain decisions are sometimes reversed on appeal.

As alluded to earlier, this is an attempt to explain in simple terms why diverse numbers of lawyers are expressing different views on the Supreme Court’s decision in the ‘vacant seats’ saga.

Liberal societies, of which Ghana is one, have established a system that accommodates these varieties of substantive justice.

We have created a court system which adjudicates matters by trying to nd a compromise among the varying visions of what substantive justice and, to a large extent, what law should be. Not everyone’s vision will always prevail, but we all need to accept the workings of the systems as the alternative would be chaos.

The writer is a lawyer.

E-mail: georgebshaw1@gmail.com