Banjul High Court

(JollofNews) – I wrote an article not long ago in which I defined the “rule of law.” That definition was how law is defined is a courtroom. Here is one observation on how law is defined outside the courtroom.

The Angelic doctor’s definition of Law is the most philosophical definition of law ever formulated. The good and blessed doctor defined law as follows: Law is “ an ordinance of reason promulgated by competent authority for the sake of the common good.”

This definition encompasses all species of law whether eternal, divine, natural or human. What the definition means is that a law worthy of the name must be reasonable, must be made by a superior who is authorized to make law, and that the purpose of law is for the common good. Purpose must be taken its Greek sense. In Greek the word purpose is telos, which means “end” or ”goal.”

Any law that is not reasonable, not made by competent authority, and has not its purpose for the common good (of society) is no law at all. The term “philosophical definition” simply means an intelligible idea. The term philosophy strictly speaking is a combination of two Greek words combined as one. Philos for the feminine gender and Phila for the masculine gender, hence the city of Philadelphia we call “City of Brotherly Love.” Sophia means Wisdom, hence the literal translation of Philo-sophy means “Love of Wisdom.” We do say my philosophy is this or that but when philosophy is used in that manner it is not the strict meaning of the word.

Back to law: I am focusing on “Human Law.” The non-philosophical definition of law in its most general and comprehensive sense is that law is a rule of human conduct prescribed by a lawful authority for the purposes of society. It is interesting that whenever we talk about law somehow the word “rule” shows up like “rule of law.” The word “rule” here means a “ruler” so we have to focus on what a ruler is used for to get a sense of “rule of law.”

A ruler is a mechanical instrument we use to draw a straight line from one point to another. We also use the ruler to see if a line is straight, so, in law, the term rule is used to signify a line of conduct, by which it may be determined whether an action is right or wrong. An action is right or wrong depending on the act’s conformity or lack thereof to the rule prescribed. The conduct referred to in the definition must be the free exercise of the human will and intelligence.

Society does not usually punish conduct that is not a free exercise of the will. That is why in criminal law both the actus reus (the act or “but for”) and mens rea ( the mental state or guilty) must be proven beyond a reason doubt before an accused is convicted of a crime. Now, how correctly or accurately we measure the straightness of human conduct based on he rule prescribed is where things get really murky. Here you see why in the court of public opinion a person is considered guilty but in a court of law he or she may be acquitted.

By Gambian Outsider