Divine Law vrs. Positive Law in the Practice of Law and Politics: The Ghanaian Example

Divine Law vrs. Positive Law in the Practice of Law and Politics: The Ghanaian Example

1 The Divine Law and Source of Authority

In the giving of the law at Sinai Moses first communicated the basic principle (the ten commandments, Exodus 20 :3-17 and Deuteronomy 5:7-21) and then provided the application of them to all aspects of social and personal life – from food to worship, property to fasting. The laws of religious, judicial, civil and political nature are found in the “Book of the Covenant” (Exodus 20: 23, 33); the “Holiness Code” (Leviticus 17-26) and throughout most of Deuteronomy, especially chapters 21- 25. These laws emanate from God and are supposed to be used in regulating the practical activities of people during the period of the Old Testament.

Jesus did not give a new moral code, and He was not a Second lawgiver, but He also did not say that the moral teachings of the Old Testament were suspended. It is the ceremonial and ritualistic laws of the Old Testament which are abrogated for Christians (ending at the cross, Colossians 2: 16, 17), but not the Ten Commandments. (See, Philip Hyatt, “God’s  Decree for Moral Living,” J. (Baptist), October, 1943, Vol. 57, No 10, p. 5) Jesus said that He came not to abolish this law but to bring its meaning to fulfillment. (Matthew 5: 17). And Paul said, to love is to fulfill the demands of the Law of Moses (Galatians 5: 18) for to them Christ is the end of the law (Romans 10:4), however, they are to be the slave of Christ and obey his law (which is a fulfilling of the law of Moses).

2. The Positive or Man-made laws and source of authority

These are legal rules adopted and actually endorsed in a special fashion by the state as a law giver. It consist of written and unwritten  body of rules largely derived from  custom and formal enactment which are recognized as binding among  those persons who constitute a community or a state, so that  they will be imposed upon and enforced among those persons by  appropriate sanctions.

1. It is these rules and guidelines within which society requires judges to administer justice. The arbitrary division of the law into categories, are:     (a) Public Law – concerned with relationships of members of the community and the State (e.g. Constitutional Law and Criminal Law);       ((b) Private Law – derived from the relationships of embers of  the community, (e.g. Contact Law, Tort, Family Law). All these laws are based on the moral principles of divine law.

Positive human laws can be divided into two categories namely:

(i)                Ecclesiastical Laws (Church laws), which here mean the laws formatted by the Church to govern their members.

(ii)             Public (Civil) Laws, which are promulgated by the sovereign State or its institutions and provided in constitutions, statutes etc. The positivists argue that law must be divorced from morality. To them mixing the two allows people to judge laws through their own prejudices and opinions. They recognize law as a command of the sovereign. Therefore, once the sovereign is identified his command must not be challenged but are to be obeyed irrespective of the moral element in them or not.

3. Doctrinal divergence 

There are three differences between the laws of God (relating to the Church) and the human-made laws (relating to the State). These can be discussed on the basis of: (a) the source of law or the giver of the law, (b) the sphere of operation and prohibition, (c) nature of sanction. These differences form the basis of disobedience amongst certain sects of the positive human law (human-made law), though they enjoy state protection and public services like education, health care, water and electricity.

(a) Talking about source, the giver of divine law is God ratified with blood. It is said in James 4:12 that, “There is one law giver, who is able to save and to destroy.” The giver of human law is the community or state ratified by consent of the people which can punish or forgive under a Prerogative of Mercy (Article 72 of 1992 Constitution of Ghana) but cannot forgive for thought and intent of the heart (spiritual).

(b) With regard to sphere of operation and prohibition, the law of God regulates all mankind across state-frontiers and covers all forms of immorality or bad beaviour, civil wrongs and criminal acts. All are sin before God. God’s law relates to the outward actions (physical) and the thoughts and intents of the heart (spiritual nature) of a person. But positive law relates to the outward action leading to an event (causation) and intent (mens rea) of the person as in the cases of R. v Latimer [1886] 17 QB 659 (foreign case); Duah v The State [1963] GLR 385 (Ghanaian case); State v. Ametepey [1964] GLR 551 (Ghanaian case).

In the realm of positive law (human-made law) a distinction between right and wrong or good and bad behaviour are determined by the sovereign state through the constitution and enactments of Parliament.

In criminal law, for example, a crime is what the law prohibits. Though most of the serious crimes are also obviously immoral, not all crimes appear to the public to be immoral.  Nevertheless, there are certain obvious immoral acts, which are not crimes. In other words, law and morality are quite distinct.

The following two episodes will illustrate the distinction.

In the first episode, Akwesi parked his car along the Ridge Road, in Kumasi and went to the Central Market to buy some items. When he returned he was told that his car had been towed away by some officials of Kumasi Metropolitan Authority (KMA). The next day Akwesi was arraigned before the court on a charge of “wrongful parking”. He was prosecuted, convicted and fined. Here, wrongful parking is a criminal offence because it is prohibited by law with sanction attached.

In the second episode, Boafo returned home one afternoon to discover his girl friend in bed with his best friend, Kwame. The girl friend even told him that Kwame, was responsible for her six month-old pregnancy. Boafo fainted and was hospitalized for a week. Then the question is – is Kwame guilty of any criminal offence? And the answer is – No, because according to our criminal law nothing is crime unless it is provided for in the Criminal Code or some other statute and a punishment prescribed for it.

In fact, sexual relationship with another’s girl friend has not been made criminal in our Criminal Code or by any statute though such an action may be seen by the Church and entire Ghanaian society as immoral and even more serious than a wrongful parking that is punishable.  

So, the extent to which actions of citizens of a State may be right or wrong is determined by law made by the State and will be judged accordingly. And so prostitution or Guy marriage is prohibited by law in Ghana and as such constitute a wrongful act but not prohibited in Germany or Sweden and therefore not a wrongful act in those jurisdictions. Devine law is, however, more universal and more concrete because the giver of that law (God) is one body and not multiple bodies as in the case of a state law. So, what is prohibited by God may not be prohibited by man (e.g. adultery) and what is prohibited by man may not be prohibited by God (e.g. Christian liberty).

(c) With regard to Sanction, it is stated in John 3:4 that “Whosoever commits sin transgress the law: for sin is the transgression of law.” “For whosoever shall keep the whole law and yet offend in one point, he is guilty of all. For he that said, do not commit adultery, said also, do not kill...” (James 2: 10, 11).

And what is the penalty for transgression? “The wages of sin is death”, (Romans 6:23). “In the day that thou eatest thereof thou shalt surely die.” (Genesis 2:17). The Soul that sinneth, it shall die.” Ezekiel 18: 4. Lord is merciful but that does not clear the guilt (Numbers 14: 18; Exodus 34:5-7).

It is important to note that God threatens to punish the transgressor of the Commandments but he promised grace and every blessing to all who keep his laws. We can faithfully trust him without adducing any evidence but we can not absolutely trust the state mechanism of punishment because state sanctions, though are attached to all illegalities, can be awarded unfairly or erroneously or even pardoned by an authority (as under Prerogative of Mercy, in Art. 72 of the 1992 Constitution) irrespective of the gravity of the offence committed. Sanctions of state range from imprisonment to death penalty, as in the Ghanaian Criminal Code of 1960. While all crimes attract equal penalty before God, crimes under state law attract penalties according to the nature of the offence or as classified by law. Hence, we have such classifications as First Felony (e.g. murder or armed robbery); Second Class Felony (attempting suicide) and Misdemeanor (petty crimes like stealing or assault). The divergence in punishment between the two spheres of law is very clear and distinctive but both demand strict observance.

4 Judgment based on Divine law and State law

The World, according to the Bible, began with Judgment (Genesis) and will end with judgment (Joel 3:9). Judgment as exercised by God and Man is primarily the vindication of the one who is right and secondly the punishment of the wrong-dower. In Israel Moses, elders, Judges and Kings  exercise judgment between contending parties (Exodus 18: 13-26; Deuteronomy,1: 16-18; 16: 18-20; 1 Kings 7:7);  God as judge is said o love  justice (Psalms 33:5; 99:4) and acts towards Israel to vindicate  people according to the terms of the covenant he made with the people (Deuteronomy, 32:36; Isaiah 33:22). Also as Judge of the whole earth (Genesis 18:25) he exercises judgment in history (Ezekiel 25:11) and will judge the nation at the end of the age (Joel 3:9f; Daniel 7:9-11).

In the New Testament, the idea of final day of judgment for the whole world  becomes clearer and is linked to the second coming of Christ to earth (Matthew 25; Romans 2:16; 3:6;2 Timothy  4:1). However, in the Gospel of 

John the present reality of God’s judgment is emphasized (John 3:18; 5:24; 12:48).

Judges using the human-made laws are given power by state to decide upon disputes and determine appropriate penalties. In this sphere, spirituality as evidence is absolutelely not entertained but the physical things. In so doing, as human beings, their judgment could be influenced by different factors including political pressure, jurisprudential considerations, conflict of interest, and mischievous interpretation of the law. This has given cause to lack of confidence in some of the decisions made by Judges which affect the fundamental human rights and freedoms of people, especially Christians.

5. Rules of Legal professional Conduct

There is the general belief amongst Ghanaians that lawyers, by virtue of the profession, are not truthful and lack faith in God and for this reason some Christians turn to condemn lawyers or refuse to accept the legal profession as normal as any other profession. Like any other profession there are individuals who do not practice according to laid down code of conduct and it will be erroneous to make a generalization such as “all lawyers are liars”. No profession is bad or condemned in the eye of God but rather it is when the object or practice by the individual goes against laid down rules of professional conduct or morality that the question of ungodliness will arise.

1. In accordance with section 23 of Legal Profession Act, 1960 (Act 32), the General Legal Council may prescribe standards of professional etiquette and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of the rules shall for the purpose of the law constitute grave misconduct in a professional respect. The prescribed rules include a host of prohibitions similar to those found in the Bible such as, not to lie to the court, not to cheat the innocent, not to be dishonest in charging fees, not to disobey summons or subpoenas, not to prevent or delay justice.    Consequently, a lawyer who has been guilty of grave misconduct in a professional respect “shall be liable (a) to have his name struck off the Roll of Lawyers, or (b) to be prohibited from practicing as a lawyer for a period specified in the order suspending him” (Section 16 of Act 32). Once there is a rule and sanction attached to it, in whichever profession, then there is also the requirement for obedience. It is this obedience which steps into the realm of divinity.

 6. The Practice of Politics and codes of conduct

In the same way as the legal profession, the reputation of politicians has been low throughout the world and particularly in Ghana in recent times. In some circles politics is described as “a dirty game” and Christians fear to associate themselves with political activities or occupy political office.

Politics per se is not itself a bad or evil system of governance. It is not designed to create conflict between individuals or parties hoping to achieve power. It is aimed at achieving the best possible means of governance based on fair competition. Politics has certain basic principles and moral standards to be complied with by all who practice politics. These include: fairness, truthfulness, honesty, respecting opinions and values of others.

It is the bad practice of politics by some politicians which has given it the bad name. Today politicians have come under the evil forces of bribery, corruption, nepotism, ethnicity, murder, intimidations, lies, hatred, selfishness and brutalities to opponents as against the codes and ethics. Codes of conduct for politicians are provided explicitly in several documents and they take roots from fundamental moral principles and divine law. Examples are those expressed in the 1992 Constitution such as the Code of Conduct for Public Officers (Chapter 24); Organization of Political Parties (Art 55); Administrative Justice (Art. 23). Other operative principles relating to good practices are found in the Manifestoes of the political parties and in international documents such as The New Partnership for African Development (NEPAD) and the AU Documents. All these documents set the standards for political engagements and activities which correspond with the moral principles underlying the divine laws.

But the evil forces and bad practices should not deter Christians from performing their civic and political responsibilities such as, participating in decision making, taking political office, voting, paying of taxes and  rendering service to the community. Because these activities are ordained by God himself so far as they do not interfere with the power and glory of God.

It is proclaimed in Romans 13:1 that “The Powers that be are ordained of God”, and verse 2 states further “Whosoever therefore resist the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation” That is, those who rise up against government itself; who seek anarchy and confusion; who oppose the regular execution of the laws. It is implied however, that those laws shall not be such as to  violate the rights of conscience, right of worship or oppose the laws of God.

7. How are Christians admonished to respect civil authority? 1st Peter 2:13-17 says “Submit yourselves to every ordinance of man for the Lord’s sake: whether it be to the King (Head of State), as supreme; or unto governors (Ministers of State, Judges) as unto them that are sent by him for the punishment of evil-dowers, and for the praise of them that do well…Honour all men Love the brotherhood, Fear God, Honour the King”. Render, therefore unto Caesar the things which are Caesar’s and to God the things that are God’s. (Matthew 22:21)

The Christian has nothing to fear to be a Lawyer or a Politician provided the moral principles and codes of conduct are strictly adhered to and God attaches importance to any profession on earth whose establishment and operation does not conflict with the divine laws and teachings.