Our subject tonight is “The Citizen and the Law”. We are not concerned, as we ought to be, with citizenship as such. That would be a most worthwhile subject for another lecture when we can take due note of the definition of citizenship in the constitutions and other laws of different states, including those of our own country, and the qualifications and procedures by which such a status can acquired. We are not even concerned here with the abstract definition of what law is and the jurisprudence of that term. Rather, we are concerned with the relationship between a citizen of a State and the law of that State. The subject is, and has been, of central interest to both political philosophers and jurists both in classical as well as contemporary times.
Our starting point, therefore, is the beginning of political thought, and the beginning is the state of nature. According to Thomas Hobbes in his book, “The Leviathan”, “the state of nature is essentially a state of war. The characteristic of a state of war is force, or a declared design of force upon the person of another, where there is not only no common superior on earth to appeal to for relief but also where life itself is, according to Hobbes, “nasty, brutish, and short.” It is a war of all against all in sharp contrast with civil society from which it differs through the want of a common judge and authority.
In his “Second Treatise of Government”, which is a powerful essay concerning the true original extent and end of civil government, like many other political treatises of the 17th century, John Locke takes a point of departure from Hobbes with an account of the state of nature as a condition in which men are free and equal and not a state of licence in which they may prey on each other. According to Locke, the state of nature has a law of nature to govern it, which obliges everyone, and reason, which is that law, teaches all mankind that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.
A man who transgresses the law of nature not only declares himself to live by another rule than that of reason and common equity, and so becomes dangerous to mankind, but also, by the unjust violence he has committed upon one, has declared war against all mankind, and therefore, may be destroyed as a lion or tiger, or one of those wild savage beasts with whom man can have neither society nor security. Everyman, therefore, by the right he has to preserve mankind in general, has a right to punish the offender and be executioner of the law of nature.
The law of nature, which was the foundation stone of Locke’s political philosophy, is one of the oldest concepts in the history of political thought. Its origins can be traced back to the distinctions Aristotle drew between law which is particular and positive, enacted for this or that state, and law which is universal and according to nature, and between natural justice, which is universally valid, and justice which is legal or conventional.
The notion of universal natural justice was developed by the Stoics, who taught that, in virtue of the common human faculty of reason, all men should be citizens of a cosmopolis under a common law of reason instead of being divided politically into separate states.
From the Stoics, the idea of a law of nature, which was a law of reason, valid for all men because of their common human nature, passed in turn to the Roman lawyers, who transmitted it to the Christian Fathers, and to the successive schools of lawyers and scholastic philosophers in the Middle Ages. To the Romans, it remained an ideal and never became a practical law. No Roman jurist asserted the principle upheld later by the medieval lawyers and their followers that positive law could be overridden by natural law – but it influenced their interpretation and application of law and acquired a status in the body of their jurisprudence. In the Christian era, the law of nature was associated with reason, which distinguishes man from the lower animals. This was taken up by the medieval lawyers who treated it as a living system – Roman in origin, natural in virtue, and in conformity with rational principles.
But Locke did not imagine the state of nature to be a kind of paradise, and in fact, war might well prevail in it. He admits the inconvenience of the state of nature where every man has the executive power of the law of nature in his own hands, and he is aware that ill nature, passion, and revenge may carry men too far in punishing others, and hence nothing but confusion and disorder will follow.
Establishing a government is the proper remedy for this; men cannot live peaceably and quietly together without uniting under certain laws made to preserve them in the world from the fraud and violence of one another. Moreover, man was not intended to be alone; God put him under strong obligations of necessity, convenience, and inclination to drive him into society, as well as fitted him with understanding and language to continue and enjoy it. There is, of course, natural society in the family, but this falls short of political society since the pater familia has no legislative power of life and death over the members of his family.
Therefore, political society exists only where men have agreed to give up their natural powers and erect a common authority to decide disputes and punish offenders. This can only be done by agreement and consent, but liberty, whether natural or political, does not mean that a man can do exactly as he pleases, regardless of any law at all. The liberty of man, even in the state of nature, is subject to the law of nature for his rule. Under government, a man is free when he is under no other legislative power but that established by consent and has a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. The essence of political liberty, in fact, is that a man shall not be subject to the inconstant, uncertain, unknown arbitrary will of another man.
Law is not incompatible with liberty; on the contrary, it is indispensable to it since the end of law is not to abolish or restrain but to preserve and enlarge freedom. In other words, liberty is to be free from restraint and violence from others and this cannot be where there is no law. The security of a man’s person, as well as that of his property, depends just as much on the effectiveness of the laws. The great and chief end of men uniting into states and putting themselves under government is, therefore, the preservation of their lives and property, and a man’s property is here defined as his life, liberty, and estate.
This brings us to the formation of political society. By nature, all men are free, equal, and independent, and no man can be subjected to the political power of another without his consent. But while this original compact is unanimous, everyone participating in it agrees hence forth to submit to the determination of the majority.
This, then, is the contract theory of political society. It is a hypothesis that provides a rational explanation of sovereign authority and not an account of its historical origin. In other words, it justifies law or government on rational principles.
To Aristotle, the master who knows, man is a political animal. By this statement, he is normally understood in the political philosophy literature to mean the sociability – the gregarious nature of man as a human being. Thomas Hobbes, John Locke and Jean-Jacques Rosseau postulated the theory of the social contract to the effect that the grouping of individuals in a society implies the existence of a compact in which such individuals tacitly surrender their absolute or natural rights in the state of nature to an agency known as government, which can, according to Locke, only exist on the consent of the governed.
According to Hobbes, strife in the state of nature motivated the need for such a compact. Locke thought that licentiousness made it imperative. In any imperative, Rosseau added that it was necessary to maintain law and order so that the compact was Volente general. In any organised political society, therefore, the need for law and order requires each individual to surrender to the community his right to execute natural law.
In order words, each citizen surrenders to the State the right to execute natural law in return for a much greater protection and enlargement of his life as a human being, as well as his liberty and property.
We are all citizens of the country we live in. The word citizen means, for our purposes, a member of a State. A State is not only a piece of the earth’s surface; it is also an organised political community with a government recognised by the people. Thus, The Gambia means not only a piece of the earth’s surface, i.e. the land, the rivers, and the hills of the country but also the whole group of Gambians regarded as an organised political community with a government recognised and obeyed by all Gambians. Every Gambian is an inhabitant of The Gambia in the first meaning of the word, and also a citizen of The Gambia in the second meaning of the word.
Although we live separately, in our separate homes in Koina, Kartong, Banjul, Brikama or Sambang, and are engaged in different walks of life as farmers, clerks, police officers, magistrates, carpenters, lawyers, doctors, masons, fishermen, etc; despite our ethnic differences: Mandinka, Wollof, Fula, Jola or Sarahule, we are all united to form a single group of people, different to all other groups of people in the world. Our group is the State which bears the name of the country in which we live.
The Gambia, Senegal, Nigeria, France, England, Egypt, India, The United States of America, and so on are more than land areas; they are also groups of people forming different States.
Every group of people united into a State has three characteristics. First, the group is organized, that is, it is arranged in an orderly manner. Second, it is political, which means that the organisation is concerned with public affairs. Third, it has a government that all the citizens must obey.
Even the most primitive peoples find it necessary to organise themselves into some simple form of state because human beings cannot live for long in safety and health if they try to live quite alone. The basic necessities of life are water, food, shelter from the weather and safety from enemies. It is easier to obtain these things if men work together as friends. That is why even uncivilised peoples, in far-off times in the past, formed little communities, which were simple states, with a leader or ruler to see that each member obtained his rights and performed his duties.
In modern times, the State is much more highly organised than it was in very ancient times, but it is still concerned with the same basic necessities of life: water, food, shelter, and safety. It still gives every member certain rights and imposes certain duties in return for these rights.
There is the citizen’s right to protection by the State corresponding with his duty of obedience to the law of the State. There is the citizen’s right to food, shelter and clothing – the State does everything it can to ensure that no citizen goes hungry, or without a place to live in, or without clothes to put on but this goes with his corresponding duty to work hard and not be wasteful of the resources of the land and/or to frustrate the efforts of others by engaging himself in acts of criminal damage to public property.
The citizen’s right to education corresponds with his duty to make maximum use of the facilities and opportunities provided him with a view to developing a fuller life and improving his value to society. The right to the advantages of living in society corresponds with the duty to serve society to the best of his ability and effort.
In ancient times, every member of the tribe had a right to a share of the meat killed by his group; in return, he had a duty to help the others in hunting wild beasts and in defending the tribe against its enemies. So also, in modern times, every member of a State has a right to good water, sufficient food, good health, and safety. In return for these, he has the duty of helping his neighbours to preserve the water supply by keeping it clean, the duty of doing his work in a proper manner and the duty of paying taxes for the upkeep of the police and the soldiers whom the State appoints. The citizen’s right to his share of clean drinking water and for washing is interfered with if anybody wastes the available water in a way as though it belongs to him alone. When one person takes more than his share of what belongs to all, others will have less than their share. The wasteful person is, therefore, in fact, stealing whatever it may be from the other citizens.
The public’s right to clean drinking water is interfered with by any person who washes himself or his clothes where dirty water may run back into the drinking water supply. A person’s right to clean water is also interfered with if the other citizens do not help him improve the water supply by building pipes, repairing the cover to the well, or cleaning out the well as often as necessary.
In towns and cities, where there are so many people that wells cannot all supply them, the local authority has to arrange other methods of bringing water into the town or city from distant places. This is very expensive, and a citizen’s right to good water is interfered with if other citizens refuse to join him in paying a water tax, with which a good water supply can be built.
Thus, we see that the right to good water carries with it the duty of taking care of the common water supply, of giving money or personal work to improve or repair it, and of paying money to the State so that good supplies of water may be provided equally for everybody.
Every citizen has a right to a fair share of good food if he works and earns it. Just as the clean water supplied by Nature can be spoiled by bad citizens who waste it or make it dirty, so can good food be spoiled by bad cooking and dirt.
Every citizen should remember that the health of his or her people depends upon their ability to choose good food and to prepare it properly. Doctors and other government officials appointed and paid by the State spend much of their time teaching people the best kinds of food and ways of preparing it, but many of us need to listen to such good advice.
In tropical countries like The Gambia, dirt and flies spoil much food. Any person who permits dirt to surround his house or room so that flies collect there is a bad citizen. The flies from his house or room enter the houses or rooms of other people and make their food dirty. In this way, the bad citizen interferes with the right of other citizens to have good, clean food.
The State, working for the good of all, makes rules for keeping villages, shops and markets clean. Every good village has a place for burning dirty food, waste materials, and rubbish of all kinds. It is the duty of every citizen to burn all his dirty rubbish there and not leave it lying about in nuisance to others.
The State provides government departments, such as the Health Department and the Department of Agriculture, to improve the supply of good food and teach citizens how to keep their food supplies clean. These Departments work for everybody, rich and poor alike, and it is the duty of every citizen of the State to pay his share of taxes for the use of these Departments and to observe the rules which the Departments make. In this way, every citizen will obtain good clean food to which he has a right, and by his obedience, he will enable his fellow citizens to obtain it too.
In the very early times, perhaps the first thing that caused men to collect together in groups, with a simple form of government, was the necessity for safety. Safety of both life and property is still one of the most important rights of every citizen, carrying with it the duty to do his share in protecting himself and his neighbours. In every modern civilised State, the safety of the citizen and his property is provided for by the fighting forces and by the Law Courts. As it is the duty of every citizen to defend his State, he must either become a fighting man himself or pay his share of the taxes used to support the fighting forces. In the same way, it is the duty of every citizen to help the police when he is called upon to do so, and to attend a court of law when his presence is necessary in order that offenders may be punished or innocent men set free. The police have the right to call upon anybody for help, and refusal to do so is an offence against good citizenship.
A good citizen has no reason to fear the police or the law courts. They are there to ensure that he gets his rights and that others perform their duties towards him. The good citizen is always ready and willing to assist the police, both in protecting the public against wicked men and in attending the law courts when required to do so so that justice may be done.
We have learned in this lecture about the rights and duties which are ours because we are citizens of our State. We have the right to our share of water, food, shelter, and safety. We have the duty of allowing to others their share of those things and of performing our part in the government, either directly by our own services or indirectly through taxation.
(To be continued)
A SPEECH DELIVERED AT THE GAMBIA COLLEGE, BRIKAMA, ON 3 FEBRUARY 1983
