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The Jeff Cumberbatch Column – A Nation Under Law – Part 2

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

A nation under law – […]– Part 2
9/13/2015
By Jeff Cumberbatch

As the Kim Davis matter that I commented on in this space last meanders along in the US, there has arisen a novel constitutional theory in her favour, emanating mostly from untutored Republican presidential hopefuls, that the US Supreme Court is not the final arbiter of the interpretation of the Constitution and that the individual states, and perhaps even dissenting individuals, may decide rather to abide by a ruling that comports with their view of what the Constitution should intend.

Of course, one would have thought that this matter was settled since early in the nineteenth century when it was stated in a seminal decision and not questioned subsequently– “It is emphatically the province and duty of the judicial branch to say what the law is. Those who apply the rule to particular causes must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each…So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then, the Courts are to regard the Constitution, and the Constitution is superior to any act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply…”

And as if to lend further support to their proposition, many of Mrs Davis’s supporters seek to rely on the old chestnut that the Supreme Court is not supposed to make law, as they argue that it did in the recent decision now under query, but merely to state what the law is. The conundrum here is that the law can only be what it is stated to be by the body charged with the exclusive jurisdiction to do – the Court. Since the constitutional framer of the law, the legislature, is not empowered to state what a provision means except by the use of the clear words it might employ in enacting the statute, it seems certain that this argument is using the expression “make law” in an unnatural and tendentious sense.

Of equal certainty is that the thinly-veiled thesis behind this new view is the theocratic sentiment that any law that is in agreement with Biblical injunction is undeniably superior to and overrides any man-made law; a view, though it might find favour with more than a few Barbadians, and while perhaps sound in theory, finds no application in practical reality, as I sought to show last week in my brief exposition of local laws that both coincide and conflict with this opinion. The inevitable consequence of this formulation ought to be that any identity of local legislation with Biblical injunction is owed rather to coincidence than parliamentary design.

A similar jurisprudential issue now arises in Barbados with the insistence of the Ministry of Labour that even with legislation in place to deal with labour issues, the Protocol signed by the constituents of the Social Partnership still has a role to play. Baldly so stated, of course, there is nothing immediately inaccurate about this.

However, it would appear that the policy may go beyond the mere assertion to contemplate a circumstance where, even if there should be an identity between the two or, even more intriguing, a conflict between them, the Protocol might still take precedence.

What else am I to make of the recent assertion by the Minister with responsibility for labour issues that “we operate under a different system in Barbados. It is not like in some other countries where employers come and they just look at the statute books; we remind our employers that it is not just our statute books, we have a protocol, a Social Partnership, and that guides the spirit of our relationship”?

If the Minister is simply making a point of statutory interpretation – that the provisions of any relevant local legislation should be interpreted, in a manner that lawyers are given to call, “de bene esse”, so as to have its provisions construed consistent with the intendment of the Protocol, the statement is irrefutable.

If, however, as I suspect, the statement purports a subordination of that legislation to the Protocol as a matter of law, then I cannot agree with it. And my disquiet is not owed solely to the validity of its operation in a context where there is a patent conflict between the two provisions in question, but even in one where there the provisions are identical.

The reality is that the Protocol has the status at law merely of a gentlemen’s agreement or one binding in honour only on those who are parties to it. In such a case, there are no legal sanctions that may be applied to any breach of one or more of its undertakings, although it would be expected that moral suasion should suffice to remedy any contravention.

A statute, on the other hand, is legally and morally binding, notorious, and universal in its application. To a society that claims adherence to the rule of law, the statute is an embodiment of good governance, and a representation, at least in theory, of the popular will. To subsume such an instrument under a gentlemen’s agreement would be to elevate the shadow of the thing above its substance.

Clearly, outside of the arguable jurisprudential illegitimacy of the official stance, there is much to be said for the process of mutually respectful social dialogue between industrial partners in the resolution of disputes, and few would deny the global application of this principle in that regard.

To the extent that statute incorporates this ideal, there is little need to refer for authority to the provisions of the Protocol that also do so. To the extent that it does not do so, however, then the legislation must abide the categorisation of being deficient and unsuited to the purpose of modern day industrial relations and should be immediately repealed and re-enacted in compliant form.

There should be, in my view, no need to create a hierarchy of protocol and statutory provisions in order to make this widely accepted point.

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91 Comments on “The Jeff Cumberbatch Column – A Nation Under Law – Part 2”

  1. Bush Tea September 18, 2015 at 7:21 AM #

    @ David
    Bushie cares NOTHING about religion OR about ‘belief in God’.
    The ONLY thing that is important is REALITY.

    Everybody can believe in what they want (and generally that is what we all do).
    What Bushie is prepared to debate …. and to speak about in absolute terms, is reality.

    The Reality is that:
    We find ourselves existing in an unlikely world. one which is intricately balanced in multiple interdependent ways….change ANYTHING a bit and we get chaos…
    Either it just accidentally happened, or it was CREATED by (what has to be) brilliant and super-human engineering.

    Only an illiterate jackass, unaware of the interwoven brilliance of Nature, could conclude that our intricate and complex world could possibly be ‘accidental’…. So ANY RATIONAL analysis immediately must identify the existence somewhere, and in some form, …
    …of Big Boss Engineers.

    These are simple obvious FACTS of observation and deduction David.
    It matters not what any JA believe, or indeed, how much exegesis is done… or in what language…

    Level two:
    If we agree that such Big Boss Engineers are around ‘somewhere’ (exists), then it is logical that they MUST have some kind of RATIONAL intent in mind in building the project called ‘life on earth’…
    ..wuh cuh dear.., even AC has some kind of rational intent behind the shiite that she writes..
    ..and SURELY BBE must be brighter than even Ping Pong, Grenville and Walter…. (“real-real” bright fellas)

    How is it even possible to avoid being ‘absolute’ in the face of such obvious FACTS about our existing world…? …So Bushie tends to be absolute…

    Level three:
    It then only remains for us to SEEK to understand the thinking behind BBE’s ‘plan’.
    but surely we must do so ….FROM BBE’s PERSPECTIVE.
    …not from AC’s and Dompey’s (for obvious reasons)
    …not from Zoe’s …for even more obvious reasons…🙂

    LOL …not even from the perspective of the bright boys like Ping Pong and Walter … cause those fellows understand some of the natural designs.. but our natural senses are not designed to understand SUPER-natural perspectives…. so a new ‘sense’ (spirit) is needed for that … ha ha ha
    Um too sweet doh…

    Like

  2. ac September 18, 2015 at 8:28 AM #

    Honesty is a philosophical and psychological receptacle which cannot be alter
    One can debate to convince self and mostly resort to conclusions of denials to escape
    Honesty being a written code has alluded most those whose acceptance of christian teachings as the only source.Hence when a truth is presented one of occultism that lends it self to religions represented by similar rituals and doctrines truth and honesty is thrown out and denial takes root

    Like

  3. Bush Tea September 18, 2015 at 8:30 AM #

    LOL …ha ha ha
    Oh shiite….!!!

    Like

  4. Zoe September 18, 2015 at 8:36 AM #

    @Bush Tea, You as you so often do, read into Scripture, what is neither explicitly stated, nor remotely implied, we are strongly forbidden and warned NOT to do that!

    “…who believe in His word to follow His lead in becoming the BEGOTTEN sons of God.”

    NO WHERE in Scripture, God’s Word, do we ever find the redeemed Children of God, EVER “…becoming the BEGOTTEN sons of God.”

    We are ADOPTED through the Only Begotten Son of God, THE LORD JESUS CHRIST!

    Believers Are Adopted Through the Only Begotten Son

    And how is it that God has brought this kind of adoption about for us as believers? Well, again, our passage tells us, beginning at verse four: “But when the fullness of the time had come, God sent forth His Son, born of a woman, born under the law, to redeem those who were under the law, that we might receive the adoption as sons. And because you are sons, God has sent forth the Spirit of His Son into your hearts, crying out, ‘Abba, Father!’ Therefore you are no longer a slave but a son, and if a son, then an heir of God through Christ.”

    And we read the same thing in Romans chapter three, verses 23 to 25: “For all have sinned and fall short of the glory of God, being justified freely by His grace through the redemption that is in Christ Jesus, whom God set forth as a propitiation by His blood, through faith.”

    So we are justified by the redemption that is in Christ Jesus, and we are also adopted by the redemption that is in Christ Jesus. The one transaction, redeeming us, buying us out of the slave market of sin – that is the picture here – that one transaction between God the Son and God the Father has wrought both legal acts on our behalf: justification and adoption. Not only have we been declared not guilty by God the Judge, but God the Judge has adopted us as His own sons! http://www.teachingtheword.org

    Like

  5. David September 18, 2015 at 8:46 AM #

    @Bush Tea

    We have engaged in this matter over the years and anybody except a JA will admit it is sound deductive reasoning. If course a logical conclusion based on a deductive premise is just that, deductive. Let the debate continue!

    Like

  6. Zoe September 18, 2015 at 8:54 AM #

    God’s Only Begotten Son
    by Henry M. Morris, Ph.D.

    “For God so loved the world, that He gave His ONLY begotten Son, that whosoever believeth in Him should not perish, but have everlasting life” (John 3:16).

    One of our favorite Christmas Scripture verses is I John 4:9: “In this was manifested the love of God toward us, because that God sent His ONLY begotten Son into the world, that we might live through Him.” The marvelous incarnation in human flesh of the ONLY begotten Son of God is not the end of the story, of course. The next verse explains that we have life through Him because God “sent His Son to be the propitiation for our sins” (I John 4:10). Our heavenly Father gives us eternal life instead of the eternal hell that we deserve because His ONLY begotten Son died in our place for our sins. “For He hath made Him to be sin for us, who knew no sin; that we might be made the righteousness of God in Him” (II Corinthians 5:21).

    The Only Begotten of the Father

    Consider, though, the significance of this revelation that Jesus Christ is the Father’s “ONLY begotten” Son. This unique phrase is used with reference to the Lord Jesus just four other times, and all five verses contain vitally important truths concerning Christ. These verses are as follows:

    “And the Word was made flesh, and dwelt among us, (and we beheld His glory, the glory as of the ONLY begotten of the Father,) full of grace and truth” (John 1:14).

    This is the key verse of the Incarnation, assuring us that the man Jesus, who dwelt among us for a time, was also the eternal Word who was “in the beginning with God” and that He “was God” and that “all things were made by Him” (John 1:1-3). He was God the Creator manifest in the flesh.

    “No man hath seen God at any time; the ONLY begotten Son, which is in the bosom of the Father, He hath declared Him” (John 1:18).
    http://www.icr.org

    Like

  7. Bush Tea September 18, 2015 at 8:57 AM #

    Zoe is just dense… as are most who have been brainwashed with some shiite religion over the years.
    Bushie’s 8.30 AM response was in anticipation of Zoe’s 8:36 AM comment🙂

    Look joker, ‘adopted’ and ‘begotten’ are not mutually exclusive. Your shiite semantics does NOT faze Bushie…
    ‘begotten’ simply means something like ‘unique’ or ‘one of a kind’ – which Jesus clearly is so far…. Did he not promise that he is but the ‘firstborn of many other future children of God….’?

    …but for you to then quote a scripture which says the VERY OPPOSITE of what you are seeking to argue …is nothing less than asinine…

    “God has sent forth the Spirit of His Son into your hearts, crying out, ‘Abba, Father!’ Therefore you are no longer a slave but a son, and if a son, then an heir of God through Christ.”

    ..what did you think that a “HEIR OF GOD” – made possible through the way provided by Christ meant? …steupsss … why does Bushie even bother…?

    shiite Zoe…. you may be reading too many of AC’s posts… or is it just ‘that time’ of the month…?
    LOL ha ha ha

    Like

  8. Zoe September 18, 2015 at 9:28 AM #

    Question: “What does it mean that Jesus is God’s only begotten son?”

    Answer: The phrase “only begotten Son” occurs in John 3:16, which reads in the King James Version as, “For God so loved the world, that He gave His only begotten Son, that whosoever believeth in Him should not perish, but have everlasting life.” The phrase “only begotten” translates the Greek word monogenes. This word is variously translated into English as “only,” “one and only,” and “only begotten.”

    It’s this last phrase (“only begotten” used in the KJV, NASB and the NKJV) that causes problems. False teachers have latched onto this phrase to try to prove their false teaching that Jesus Christ isn’t God; i.e., that Jesus isn’t equal in essence to God as the Second Person of the Trinity. They see the word “begotten” and say that Jesus is a created being because only someone who had a beginning in time can be “begotten.” What this fails to note is that “begotten” is an English translation of a Greek word. As such, we have to look at the original meaning of the Greek word, not transfer English meanings into the text.

    So what does monogenes mean?

    According to the Greek-English Lexicon of the New Testament and Other Early Christian Literature (BAGD, 3rd Edition), monogenes has two primary definitions. The first definition is “pertaining to being the ONLY one of its kind within a specific relationship.” This is its meaning in Hebrews 11:17 when the writer refers to Isaac as Abraham’s “only begotten son” (KJV). Abraham had more than one son, but Isaac was the only son he had by Sarah and the only son of the covenant. Therefore, it is the uniqueness of Isaac among the other sons that allows for the use of monogenes in that context.

    The second definition is “pertaining to being the ONLY one of its kind or class, unique in kind.” This is the meaning that is implied in John 3:16 (see also John 1:14, 18; 3:18; 1 John 4:9). John was primarily concerned with demonstrating that Jesus is the Son of God (John 20:31), and he uses monogenes to highlight Jesus as uniquely God’s Son—sharing the same divine nature as God—as opposed to believers who are God’s sons and daughters by adoption (Ephesians 1:5). Jesus is God’s “ONE and ONLY” Son.

    The bottom line is that terms such as “Father” and “Son,” descriptive of God and Jesus, are human terms that help us understand the relationship between the different Persons of the Trinity. If you can understand the relationship between a human father and a human son, then you can understand, in part, the relationship between the First and Second Persons of the Trinity. The analogy breaks down if you try to take it too far and teach, as some Christian cults (such as the Jehovah’s Witnesses), that Jesus was literally “begotten” as in “produced” or “created” by God the Father.
    http://www.gotquestions.org

    Like

  9. Zoe September 18, 2015 at 9:56 AM #

    Question: “What does it mean that Jesus is the ‘first-born’ over Creation?”

    Answer: In a letter to the church at Colossae, the Apostle Paul gave an intriguing description of Jesus. In it, he explained Christ’s relationship to God the Father and to creation. Some have claimed that Paul’s description of Christ as the first-born of creation means that Jesus was created — not eternal, not God. Such a doctrine, however, conflicts with the rest of the Bible. Christ could not be both Creator and created; John 1 clearly names Him Creator. Let’s take a careful look at the passage where Jesus is called the first-born.

    Colossians 1:15-21

    “And He is the image of the invisible God, the first-born of all creation. For by Him all things were created, both in the heavens and on earth, visible and invisible, whether thrones or dominions or rulers or authorities — all things have been created by Him and for Him. And He is before all things, and in Him all things hold together. He is also head of the body, the church; and He is the beginning, the first-born from the dead; so that He Himself might come to have first place in everything. For it was the Father’s good pleasure for all the fullness to dwell in Him, and through Him to reconcile all things to Himself, having made peace through the blood of His cross; through Him, I say, whether things on earth or things in heaven.”

    Jesus is God

    Christ’s relationship to His Father begins with the phrase “the image of the invisible God.” The word “image,” meaning copy or likeness, expresses Christ’s deity. This word involves more than a resemblance, more than a representation. He is God! Although He took on human form, He has the exact nature of His Father (Hebrews 1:3).

    The “Word” of John 1:1 is a divine Person, not a philosophical abstraction. In the incarnation, the invisible God became visible in Christ; deity was clothed with humanity (Matthew 17:2). God is in Christ: visible, audible, approachable, knowable, and available. All that God is, Christ is.

    Jesus is Lord of Creation

    The description “first-born of all creation” speaks of Christ’s preexistence. He is not a creature but the eternal Creator (John 1:10). God created the world through Christ and redeemed the world through Christ (Hebrews 1:2-4).

    Note that Jesus is called the first-born, not the first-created. The word “first-born” (Greek word “prototokos”) signifies priority. In the culture of the Ancient Near East, the first-born was not necessarily the oldest child. First-born referred not to birth order but to rank. The first-born possessed the inheritance and leadership.

    Therefore, the phrase expresses Christ’s sovereignty over creation. After resurrecting Jesus from the dead, God gave Him authority over the Earth (Matthew 28:18). Jesus created the world, saved the world, and rules the world. He is the self-existent, acknowledged Head of creation.

    Finally, the phrase recognizes Him as the Messiah: “I will make Him [Christ] My first-born, higher than the kings of the earth” (Psalm 89:27).

    Six times the Lord Jesus is declared to be the first-born of God (see Romans 8:29; Colossians 1:15, 18; Hebrews 1:6; 12:23; Revelation 1:5). These passages declare the preexistence, the sovereignty, and the redemption that Christ offers.

    Thus, the phrase “first-born of all creation” proclaims Christ’s preeminence. As the eternal Son of God, He created the universe. He is the Ruler of creation!
    http://www.gotquestions.org

    Like

  10. Zoe September 18, 2015 at 10:13 AM #

    @ Bush Tea, You are blatantly guilty of repeatedly using the utterly erroneous FALSE interpretation of text, by READING INTO, ‘EISEGESIS’ what is simply NOT there, grammatically, by syntax, or the basic rules of contextual analysis!

    Question: “What is the difference between exegesis and eisegesis?”

    Answer: Exegesis and eisegesis are two conflicting approaches in Bible study. Exegesis is the exposition or explanation of a text based on a careful, objective analysis. The word exegesis literally means “to lead out of.” That means that the interpreter is led to his conclusions by following the text.

    The opposite approach to Scripture is eisegesis, which is the interpretation of a passage based on a subjective, non-analytical reading. The word eisegesis literally means “to lead into,” which means the interpreter injects his own ideas into the text, making it mean whatever he wants.

    Obviously, only exegesis does justice to the text. Eisegesis is a mishandling of the text and often leads to a misinterpretation. Exegesis is concerned with discovering the true meaning of the text, respecting its grammar, syntax, and setting. Eisegesis is concerned only with making a point, even at the expense of the meaning of words.

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  11. ac September 18, 2015 at 10:23 AM #

    The ritual of communion brings with it a symbolic fom of occultism whereby bread represents flesh and wine represents blood both symbols are widely used by occults in their seances or quest to indulge with the spirit world
    There is no denying that there is a common thread of the occult which lends itself christain religious doctrines and theories rooted in mystery and the spirit world

    Like

  12. Zoe September 18, 2015 at 10:28 AM #

    @ Bush Tea, Language presupposes LOGICAL distinctions!

    Only Begotten, and ADOPTION, are logically distinct, as shown from God’s Word,

    Reason is NECESSARY, for revelation to be coherent.

    But your PRIDE, Bush Tea, prevents you FROM admitting when your wrong, in ARROGANCE of PRIDE, you then come with Ad Hominem, rather than deal with the TRUTH, lacing your ‘Eisegesis’ with Red-herring distractives!

    Like

  13. Bush Tea September 18, 2015 at 11:53 AM #

    “But your PRIDE, Bush Tea, prevents you FROM admitting when your wrong…”
    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    Pride shiite!!
    ..you ever see a bushman – a man whacking all kinda nastiness and foolishness all damn day long – having problems with pride…?

    If anything Bushie should be ashamed!!

    …for wasting time arguing with someone who is capable only of running for some damn ‘cut and paste’ quotation from some equally idiotic ‘scholar’ like Henry Morris…

    Since you don’t know the answer to the question asked earlier about why Jesus CHOSE to lime on the blocks with fishermen, and arrogant bushmen….It was because he could not stomach the pretentious Pharisees and Scribes who knew all the damn scriptures, languages, exegeses, and laws …and who understood not one shiite.
    ….while the bushmen and fishermen ‘got it’ and became his disciples….

    Like

  14. ac September 18, 2015 at 1:02 PM #

    How about the burning of incense complete with the clangingi lof bells. A ritual widely performed in the Catholic and Anglicn churches to cleanse or protect against evil. baptism with the initial cross in the head was also a symbol of protection used by the occult as a protectionbagainst evil spirits

    Like

  15. Zoe September 18, 2015 at 2:04 PM #

    @ Bush Tea,

    “If anything Bushie should be ashamed!!”

    You got that right!!! Ashamed of Eisegetical BUSH CRAP that write!

    Like

  16. ac September 18, 2015 at 5:32 PM #

    When Organized Religion Becomes a Cult

    The distinction between cult and religion lies squarely in how those leaving or those wanting to leave are treated
    Cults claim exclusivity, are highly secretive, and authoritarian. To many of my atheist friends, religion fits the bill. What distinguishes religion from cults is the ability to question without being shunned and ability to reject dogmatic tenets without being shunned
    Many religions make exclusive claims to truth. There is nothing wrong with that. Many systems of philosophy do the same. Kantianism’s categorical truths are, for example, incompatible with utilitarianisms balancing of harm and good.
    The harm stems from a system that shuns and ostracizes adherents that don’t accept their exclusive claims to truth. That is where conventional religion becomes a potentially harmful cult. Forcing people to conform by using the subtle threat of social alienation is a form of coercion.
    People leave religion because of the seemingly restrictive lifestyle, conflicts between science and literal biblical interpretation, ethnocentrism, sexism, dogma, intolerance or boredom. Those may all be legitimate reasons or just misapplication of religious principles but the bottom line is those are personal choices people make about whether to follow a particular religion.
    Any religious community can become a cult. It’s not about how faith is expressed in a community but more importantly how people are treated if they want to leave and disbelieve..
    The historical roots of three monotheistic religions, namely Christianity, Islam, and Judaism, are founded on the story of Abraham, a man who was willing to question authority and refute the superstitions of worshiping material objects. This story is the foundation of monotheism and should serve as an example of how nonconformists should be embraced.
    According to Biblical lore, through a process of logical deductions and observation of the universe around him Abraham began to question the validity of idolatry and recognize that because the universe is so complex it must have a designer. Abraham was unafraid to challenge the mores of his time and to question authority. This is the historical underpinning of monotheistic religions.
    Religious communities and society as a whole should allow wider expression and diversity, allowing all to feel welcome and comfortable.
    In order to prevent crossing the line from religion to cult, communities need to purge themselves of dogma, intolerance and ostracizing those with different beliefs, so their adherents have true choice on how to live their lives.

    http://www.huffingtonpost.com/eliyahu-federman/when-organized-religion-become_b_3996139.html

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