Columns

Defective reasoning even from eminent lawyers?

Clinton
Chisholm

Thursday, April 19, 2018

Print this page Email A Friend!


As a lecturer in philosophy and critical thinking I comb many sources for examples of effective and defective reasoning. I am not a lawyer, but I eagerly awaited the availability of the final ruling in the buggery case in Trinidad and Tobago. Why? To see if the eminent jurists there reasoned at a more effective level than the chief justice of Belize in the Orozco case. I gather a similar case is before our Supreme Court as well, and that ruling too I eagerly await.

I took the time in 2016 to read through the ruling from the chief justice of Belize in the Caleb Orozco claim against the attorney general (the defendant) regarding his breached right of “freedom to express his preference or orientation”.

I found aspects of the ruling puzzling, both legally and, especially, logically, and I apologise for saying that the reasoning on a key point of law, namely, public morality, as per the Constitution of Belize, reminded me of an idiotic statute that was on the books in Kansas, USA, for years before the idiocy was spotted and the statute repealed.

That Kansas statute said: “When two trains approach each other at a [railroad] crossing, they both shall come to a full stop and neither shall start up until the other has clean gone.”

Chief Justice Benjamin said:

“[69] The sole limitation relied upon by the defendant is that of public morality. In paragraph 8 of the Ramjeet affidavit, section 9(2) is cited.

“Section 9(2) reads in part: Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision;

(a) that is required in the interests of defence, public safety, public order, public morality, public health…”

Some Church leaders, allowed as interested parties, raised the public morality issue and the eminent chief justice ruled:

“[81] There can be no doubt that the reverend gentlemen deposed to views that they sincerely and conscientiously hold, and that are representative of the majority of the Christian community and perhaps of the population of Belize. However, from the perspective of legal principle, the court cannot act upon prevailing majority views or what is popularly accepted as moral. The evidence may be supportive, but this does not satisfy the justification of public morality. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm.”

So the learned jurist concedes that the views expressed by the clergymen “are representative of the majority of the Christian community and perhaps of the population of Belize”, but says this “does not satisfy the justification of public morality”. I ask in amazed ignorance why not. On what basis should a court determine public morality beyond assessing public sentiment about particular moral issues?

According to the eminent chief justice, one would have to establish by evidence that “some harm will be caused should the proscribed conduct be rendered unregulated”. But, “[N]o evidence has been presented as to the real likelihood of such harm.”

Notice a few odd things here. The possible views of the population of Belize does not, without more, qualify as 'public morality'. Then the chief justice, in my unlearned view, indulges a muddled logical stretch about the need for harm. By what legal, linguistic or philosophical canon? Public morality does not necessarily require a concept of [certain or likely] harm to qualify as public morality.

The chief justice seems unaware that the construction “will be caused” is one of certainty and is not equal in force to the construction “real likelihood of such harm”. This latter construction suggests a lower degree of proof along the descending spectrum, certain, likely, probable, possible.

No one can prove with certainty the consequences of most acts, but some can be argued for beyond reasonable doubt (meaning probable or likely). But why is the harm component even invoked by the chief justice?

The chief justice touched on the public morality issue later thus:

“[82] In Patrick Reyes v R Lord Bingham cited with approval the following statement by Chaskalson, P of the South African Constitutional Court in State of Makwanyana [1995] (3) SA 391 (at paragraph 88):

“Public opinion may have some relevance to the enquiry but, in itself, it is no substitute for the duty vested in the courts to interpret the constitution and to uphold the provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication... The very reason for establishing [the constitution], and for vesting the power of judicata review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process…”

The honourable chief justice could have helped non-lawyers like me, and even the lawyers in court, by showing how this dictum, in essence, is on all fours with the Belize constitutional provision in section 9(2) regarding public morality.

I doubt this quoted dictum is on all fours with section 9(2). The section of this dictum, “If public opinion were to be decisive, there would be no need for constitutional adjudication...” is a non sequitur (the conclusion 'there would…' does not follow from the stated premise 'if public…'

Bear in mind that the limitation to Orozco's claimed right that the attorney general relies on is a constitutional provision and as such could not be disregarded as part of constitutional adjudicaton!

The section of the judge's ruling dealing with the claimant's violated right to dignity was also very, very suspect in reasoning, but that for another time perhaps.

Rev Clinton Chisholm is academic dean at the Caribbean Graduate School of Theology. Send comments to the Observer or clintchis@yahoo.com.

ADVERTISEMENT




POST A COMMENT

HOUSE RULES

1. We welcome reader comments on the top stories of the day. Some comments may be republished on the website or in the newspaper � email addresses will not be published.

2. Please understand that comments are moderated and it is not always possible to publish all that have been submitted. We will, however, try to publish comments that are representative of all received.

3. We ask that comments are civil and free of libellous or hateful material. Also please stick to the topic under discussion.

4. Please do not write in block capitals since this makes your comment hard to read.

5. Please don't use the comments to advertise. However, our advertising department can be more than accommodating if emailed: advertising@jamaicaobserver.com.

6. If readers wish to report offensive comments, suggest a correction or share a story then please email: community@jamaicaobserver.com.

7. Lastly, read our Terms and Conditions and Privacy Policy



comments powered by Disqus
ADVERTISEMENT

Poll

ADVERTISEMENT
ADVERTISEMENT

Today's Cartoon

Click image to view full size editorial cartoon
ADVERTISEMENT